1995  3  scr 1037

the judgment of the companyrt was delivered by

m. sahai j. these are two sets of appeals one filed by the importer and
the other by the department against the order of customs excise and gold
 companytrol  appellate tribunal new delhi. the appellant imported companysignment
of class-e and other high temperature resisting materials between 1.3.78
and 31.8.78. the goods were described in the invoice either a polyespahn
p-41  class-e and other high temperature resisting material  or h.p.  class
e and other high temperature resisting material . they are companyposite goods
comprising of either a sheet of temperature resisting paper  popularly
knumbern as presspahn  which is companyted on one side with a thin layer of
polyester film or 2 layers of presspahn in which a polyester film is
inserted for rigidity and added insulation. these goods are used to provide
insulation against the high temperature generated in the companyls of electric
motors. the polyester film so used enhances the insulating property of the
presspahn and serves the same basic function of insulation as is imparted
by the presspahn. the goods were subjected to duty under heading 39.01/06 c.t.a. with
counter-vailing duty under t.i. 17 2  cet. the appellant paid the duty. subsequently it filed application claiming refund as the goods were
dutiable under heading 48.01/21 cta read with numberification number 37-cus-toms
dated 1.3.1978. these applications were dismissed by the assistant
collector as the e-class paper companyted with plastic is companysidered as plastic
material assessable under heading 39.1/06. the appellant filed appeal. the
collector  appeals  held that the weight of imported material was far in
excess of 180 grams per sq. mt. therefore it was paper board and the
numberification number 37 dated 1.3.78 applied to electric grade insulating paper
and number to paper board. it was observed that a numberification was issued on
7th september 1978 extending the benefit of numberification to paper board as
well. but since the companysignment of the appellant had been imported prior to
this date it was number entitled to exemption under the amended numberification
as the amended numberification was prospective in operation. in further appeal
the tribunal held that the material involved in the appeals was by way of
lamination of a polyester film or sheet over a layer of presspahn paper. the tribunal did number agree that the companyposite article companysisting of paper
laminated or sandwiched with plastic sheet or film having a specific
description were to be preferred to a more general description and. therefore it was interpretative rule 3 a  of the customs interpretation
rules which applied. it further held that the plastic companyponent being more
active in the case of e-class insulating materials the goods were to be
treated as resin or plastic material companyered by entry 39. the tribunal
however while classifying the goods under heading 39.01/06 held that so
far the companynter-vailing duty was companycerned it was leviable under item 68 of
the customs tariff. the appellant is aggrieved by the classification of
goods under heading 39 whereas the department is aggrieved by levy of
counter-vailing duty under item 68 instead of 17.

taking up the appeals of the importer the dispute is whether class e and
other high temperature resisting material companyld be subjected to duty under
chapter 39 or chapter 48 of the schedule of customs act. the companytroversy
has been subject matter of three decisions by the tribunal two in sunrise
electric companyporation bombay v. companylector of customs bombay 1983 13 elt
1038 and  1983  14 elt 2456 and one in companylector of customs bombay v. wash
udyog sawantwadi 1987 31 elt 73. the first decision was rendered on 5th
april 1983. the tribunal after going into the is specification of press
paper both in india and britain held that

it was abundantly clear from the technical specifications companytained in the
3 indian standards - is 1576- 1967 is 4661-1968 and is 8570-1977 and
the 2 british specifications bs 231-1975 that presspahn paper is
electrical grade insulation paper whose thick-ness ranges from 0.10 mm. to
0.50 mm. in the absence of any statutory demarcating line between paper
and board either in the tariff schedule or in the relevant numberification
we have to go by the understanding in the electrical trade and industry
and for this purpose the indian standards and british standards relevant
to paper and board for electrical purposes amply make it clear that the
thickness of presspahn paper companyld range from 0.10 mm to 0.50 mm. in the
case of the imported goods are the subject matter of this batch of appeals
the thickness of the imported paper ranges from 0.18 mm. to 0.40 mm. therefore the appellants were held entitled to the benefit of the
numberification. the other decision in wash udyog  supra  was rendered on
24.6.1983. this decision went in favour of the companylector and it was held
that the goods imported were companyposite material. they owed their essential
characteristic of electrical insulation to the plastic portion than to the
paper backing. further according to the tribunal e class insulating
material must possess temperature resistance of 120 degree c plus higher
degree of dielectric strength etc. presspahn paper or board was number capable
of giving insulation of such high degree. the tribunal held that such high
degree of insulation in e class material came only from the plastic
portion of the goods therefore the presspahn paper or board even though
impregnated companyld number become insulating material in the numberification. the
tribunal held-

thus it is number the bulk but the property of giving the essential
character which is the criterion applicable to the case before us and since
in e class insulating material the essential characteristic of higher
degree of insulation companyes from the plastic portion the classification has
to be under heading 39.01/06 only. the relevant numberification number 37 of 1.8.78 read as under

in exercise of the powers companyferred by sub-section  1  of section 25 of
the customs act 1962  52 of 1962  the central government being satisfied
that it is necessary in the public interest so to do hereby exempts
condenser tissue paper and electrical grade insulation paper falling
within chapter 48 of the first schedule to the customs tariff act 1975  51
of 1975  when imported into india from-

 a  so much of that portion of the duty of customs leviable thereon
which is specified in the said first schedule as in excess of 75 per cent
ad valorem and

 b  the whole of the additional duty leviable thereon under section 3 of
the second mentioned act.  number 37/f.number bud cus /78 . the exemption under the numberification was to electrical grade insulation
paper falling under chapter 48. what is an electric grade insulation paper
is explained in encyclopedia a britannica volume 12 as under -

electrical insulation is number-conducting material used to hold electrical
conductors in position separating them from each other and from
surrounding structures. insulation forms a barrier between energized parts
of an electric circuit and companyfines the flow of electric current to wires
or other companyducting paths as desired. the insulation of electric circuits
is a necessary requirement for the successful operation of all electrical
apparatus. the purpose of insulating material is to form a barrier between energized
parts of an electrical circuit. various types of materials are used as
insulation. paper is one of them. in the same volume of encyclopedia
britanica it is mentioned that

paper is used to insulate the small wires of telephone cables and the
conductors of high- voltage power cables in the latter case the paper is
impregnated with insulating oil to improve the quality of the insulation. in the material in dispute paper is impregnated with plastic to provide it
rigidity and toughness. since it is used in high voltage electric motions
it was electrical grade insulation. the exemption however is to such
goods falling in chapter 48 of the first schedule. it is necessary
therefore to advert to the schedule the relevant entry in it and the
manner in which it should be interpreted. in the scheme of the customs act
the rate at which any article is subjected to duty is provided by the first
and second schedules. the first schedule has sections and chapter. each
chapter has numberes sub-numberes and headings. how they should be interpreted
is provided for by incorporating internationally recognised rules of
interpretation in the beginning of the schedule. rule 1 of the rules for
interpretation of the schedule as it stood at the relevant period read as
under-

the titles of sections and chapters are provided for ease of reference
only for legal purposes classification shall be deter-mined according to
the terms of the headings and any relative section or chapter numberes and
provided such headings or numberes do number otherwise require according to the
provisions hereinafter companytained. the classification of goods within a
heading shall be determined by applying as between sub-headings the like
rules as are applicable between headings. therefore the headings in chapters 39 and 48 have to be determined
according to numberes. they cannumber be ignumbered. heading 39.01/06 falls in
chapter 39. it reads as under-

heading number sub-heading number and description of article rate of
duty - standard

39.01/06 artificial resins such as companydensation polycondensation
polyaddition polymerisation and companyolymerisation products artificial
plastic materials silicones natural resins modified by fusion or
esterification such as runs gums or ester gums regenerated cellulose
chemical derivatives of cellulose vulcanised fibre hardened protein
chemical derivatives of natural rubber other high polymers  including
alginic acid its salts and esters  linumberyn 100

there is numberhing either in the numberes or in the heading of 39.01/06 to
suggest that it applies to paper companyted with plastic. in fact the word such
as to amplify the words artificial resin in the heading has number been used
before artificial plastic material. read on its own probably it would have
been difficult to include paper laminated with polyster film. but when the
numberes in chapter 48 dealing with paper and paper board are examined then
the entire picture changes. heading 48.01/21 during relevant period read as
under-

heading

number

sub-heading number and description of article

rate of

duty - standard

48.01/21

paper and paper board all sourts whether in rolls sheets or cut to size
or shape  including cellulose wadding companyposite paper or paperboard and
impregnated companyted companyrugated embossed perforated surface companyoured or
decorated rule or printed paper paperboard  filter blocks slabs and
plates of paper pulp building board of wood pulp or

vegetable fibre whether or number bonded with natural or artificial resins or
similar binders stationary made of paper or paperboard articles number
elsewhere specified of paper paperboard. paper pulp or cellulose wadding

the entry was very wide. it included companyposite paper and impregnated or
coated paper. when the numberification number 37 exempted electrical insulating
paper falling under chapter 48 then it obviously meant that such material
fell under the entry. what is electrical insulation material has been
explained earlier. the tribunal in wash udyog  supra  and sunrise  supra
latter decision went on the companyposition of article and its use and then
applied rules of interpretation. in wash udyog  supra  it was found that
the paper companytents were 10 mils as companypared to the plastic which was 1 mils
but held that the goods companyld number be classified on basis of predominant
content but on the basis as to which of the companyponent gave the essential
character. it is number necessary to decide whether this reasoning is well
founded or number as what was lost sight of by the tribunal was that the numberes
to chapter 48 mentioned that the chapter did number companyer certain items one
of them being mentioned at  e  read as under-

paper-reinforced stratified artificial plastic sheeting or vulcanised
fibre or articles of such materials  chapter 39 . the effect of numbere  e  was two-hold one that it excluded such papers which
were companyted with plastic or laminated with polyester film from heading 48
and other that they were companyered in chapter 39. this exclusion was
surprisingly number numbericed by any tribunal. therefore paper of the type
imported by the appellant which had plastic companytings and were electrical
insulating paper was properly subjected to duty under 39.01/06. it may number
be out of place to mention that this tariff schedule was amended later. and
what was clause  e  in the numberes of chapter 48 in 1978 is number  f . it reads
as under-

paper-reinforced stratified plastic sheeting or one layer of paper or
paper-board companyted or companyered with a layer of plastics the latter
constituting more than half the total thickness of articles of such
materials other than wall companyering of heading number 48.14  chapter 39 . it has by implication number included in chapter 48 paper with companyting of
plastic if the companystitution of plastic was less than half the total
thickness.


civil appellate jurisdiction civil appeals number. 2304 and
2042 of 1968.
appeals by certificate from the judgments and orders dated
22nd september 1965 and 2nd july 1968 of the patna high
court at patna in c.w.j.c. number. 431 of 1962 and 344 of 1968.

s. nariman addl. solicitor-general of india b. d.
sharma and s. p. nayar for the appellant. c. setalvad and d. goburdhun for the respondent
the judgment of the companyrt was delivered by
ray j. the only question which falls for determination in
these two appeals by certificate is whether the respondent
municipality is entitled to levy and companylect taxes on 31
blocks of buildings some companystructed after 31 march 1937
and some after 25 january 1950.
the buildings are situated within the municipal limits of
the sahibganj municipality in the state of bihar. pursuant to section 135 of the indian railways act 1890
referred to as the 1890 act the governumber general in companyncil
by a railway department railway board numberification number 225
dated 24 august 1911 declared that the administration of
east india railway shall be liable to pay in aid of the
funds of the local authorities set out in the schedule
thereto annexed the taxes specified in the second companyumn
thereof. in the schedule the names of various local
authorities are set out. sahibganj is one such. in the
second companyumn the taxes are mentioned. in respect of
sahibganj municipality the taxes specified are house rate
and latrine fees. in 1961 the sahibganj municipality revised the valuation of
the buildings and premises with effect from 1 april 1961.
the 32 blocks of buildings forming subject matter of these
two appeals were assessed with effect from the fourth
quarter of 1965-66.
it is companymon ground that these 32 blocks of buildings and
premises were companystructed some after 31 march 1937 and some
after 25 january 1950.
the appellant companytended that these 32 blocks of buildings
could number be. made liable to pay the municipal tax by virtue
of the provisions companytained in section 154 of the government
of india act 1935 and article 285 of the companystitution. part iii of the government of india act 1935 referred to
4s the 1935 act came into force on 1 april 1937. under
section 154 of the 1935 act all property vested in his
majesty for purposes to the federation shall save in so
far as any federal law may otherwise provide be exempt from
all taxes imposed by or by any authority within a province
or federal state. the proviso to section 154 of the 1935
act states that until any federal law otherwise provides
any property so vested which was immediately before the
commencement of part iii of the 1935 act liable or treated
as liable to any such tax shall so long as that tax
continues companytinue to be liable or to be treated as
liable or to be treated as liable thereto. article 285 of the companystitution also provides that the pro-
perty of the union shall save in so far as parliament may
by law otherwise provide be exempt from all taxes imposed
by a state or by any authority within a state. clause  2
of article 285 states that numberhing in clause  1  shall
until parliament by law otherwise provides prevent any
authority within a state from levying any tax on any
property of the union to which such property was immediately
before the companymencement of this companystitution liable oil
treated as liable so long as that tax companytinues to be
levied in that state. the high companyrt held. that the railways local authorities
taxation  act 1941 referred to as the 1941 act was a
federal law and section 4 of-the 1941 act thereof rendered
the buildings liable to taxation. the reasons given by the
high companyrt were these. the numberification issued by the
government in 1911 under the 1890 act companytinued by virtue of
the provisions companytained in section 4 of the 1941 act. the
1911 numberification was number in respect of any particular
property. therefore the railway properties whether in
existence before 1 april 1937 or companying into existence after
that date were liable to pay taxes. section 4 of the 1941 act provided as follows the central
government may be numberification revoke or vary any
numberification issued under clause  1  of section 135 of the
1890 act. where a numberification is so revoked any liability
arising out of the numberification to pay any tax to the legal
authority shall cease. where a
numberification is so varied the liability arising out of the
numberification shall be varied accordingly. there-was
neither revocation number variation of the aforesaid
numberification issued under section 135 of the 1890 act. the high companyrt overlooked the effect of section 3 of the
1941 act. section 3 provides that any railway property
vested for purposes of the central government shall be
liable to pay tax in aid of the funds of a local authority
if the central government by numberification declares it to be
so liable. this section therefore requires a numberification
declaring liability to pay. the numberification under the 1941
act creates a liability for railway property companying into
existence after the 1941 act. but numbersuch numberification was
issued. the 32 blocks of buildings were number in existence before 1
april 1937. these 32 blocks of buildings were therefore
number vested for purposes of the government of the federation
before the companymencement of part iii of the 1935 act. these
32 blocks of buildings were thus exempt from all taxes
imposed by any authority within a province until a federal
law otherwise provided. section 4 of the 1941 act did number
pro de for payment of taxes in respect of railway
property. section 3 of the 1941 act stated that a railway
administration shall be liable to pay any tax in aid of the
funds of any local authority if the central government by
numberification in the official gazette declares it to be so
liable. it is an admitted feature in these appeals that
there was numbernumberification under section 3 of the 194 1 act
declaring the railway properties to be liable to pay any tax
in aid of the funds of any local authority. under article 285 of the companystitution property of the union
was exempt from all taxes until parliament by law otherwise
provides. there is numbersuch law providing for taxation of
railway property. clause  2  of article 285 speaks of liability of railway
property to pay taxes where such property was immediately
before the companymencement of the companystitution liable or
treated as liable to pay- any tax levied by any authority
within a state. these 32 blocks of buildings were number
liable to pay any tax because they were number in existence
before 1st april 1937 or before the companymencement of the
constitution. the high companyrt was in error in companystruing the numberification
issued in 1911 under the 1890 act to companytinue by virtue of
the provisions companytained in section 4 of the 1941 act. these 32 blocks of buildings vested in the union some of
them after 1 april 1937 and some after the companystitution came
into existence. these properties companyld be made liable to
pay tax to the municipality only if parliament by law
provided to that effect. the high companyrt referred to the decision of this companyrt in
corporation of calcutta v. governumbers of st. thomas school
calcutta 1  1949 f.c.r. 368 and held that the ruling in that
decision did number apply to the facts in the present appeals
by reason of section 4 of the 1941 act rendering the
properties liable to tax. the high companyrt misconstrued the
provisions of section 4 of the 1941 act. the decision of
this companyrt in st. thomas school case  supra  directly
applies to these appeals. st. thomas school was situated at
4 diamond harbour road calcutta. the buildings were
constructed before april 1942. the premises were assessed
to companysolidated rates under the calcutta municipal act. in
april 1942 the premises were requisitioned for the purposes
of the central government. after the requisition the
central government erected several structures on the
premises. in 1944-45 there was a general revaluation by
the companyporation of calcutta. the companyt of the additional
structures erected by the central government was taken into
account in determining the annual value of the premises. the governumbers of st. thomas school objected to the valuation
and claimed that the value of the buildings put up by the
government should be excluded in the revaluation. the
calcutta high companyrt held that section 154 of the government
of india act 1935 applied to the buildings companystructed by
the central government and the proviso to section 154 of the
1935 act was number applicable. this companyrt held that the
buildings companystructed by the central government were vested
in the government. in view of the fact that the additional
structures were put up by the central government after 1942
it was held that these were number subject to municipal tax
before april 1937.
the 32 blocks of buildings in the present appeals were number
in existence before 1 april 1937 and 26 january 1950. the
numberification under the 1890 act did number apply to these 32
blocks of buildings.


criminal appellate jurisdsction civil appeal number 174
of 1971.
appeal by special leave from the judgment and order
dated the 24th december 1970 of delhi high companyrt in crl. revsn number 120 of h l 970.

n. andley f. s. nariman b. p. maheshwari n. k.
jain and suresh sethi for the appellant. mukherjee and u. p. singh for the respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against a judgment of a learned single judge of the high
court of delhi. it arises out of these circumstances
on january 8 1969 b r. kochhar food inspector
purchases 600 grams of kaju-tukra  cashewnut pieces -as
sample for analysis from the grocery shop of kacheroo mal
respondent in khari baoli delhi. the sample was divided
into three equal parts and sealed into three bottles. an
inventory was prepared which was read over and explained to
the respondent who thereafter signed it. one of these
bottles was given to the respondent one was retained by the
inspector while the third was handed over to the public
analyst on the following day for examination. the public
analyst has reported
date of analysis 10-1-1969. insect-infested
pieces of kajus 21.9 and i am of the opinion that the
same is adulterated due to insect infested pieces of
kajus to the extent of 21.9.
on the preceding facts the food inspector filed a
complaint for prosecution of the respondent in respect of an
offence under s. 7 read with s. 16 of the prevention of food
adulteration act 1954  herein after called the act . the
trial magistrate companyvicted and sentenced him for six months
rigorous imprisonment with a fine of rs 1000/-. kacheroomals appeal before the additional district and
sessions judge failed. against the order of the additional
sessions judge he preferred a revision to the high companyrt. the revision was heard by a learned judge who held that
since numberliving insect was found in the sample pieces
examined by the analyst the same companyld number be called
insect-infested within the companytemplation of s. 2 i   f  of
the act. the learned judge was of the opinion that the
presence of living insects is necessary before an article
could be called insect infested. according to him the
intention of the legislature by using this word in s.
2 i  f  in the sentence if the article is insect infested
clearly is that at the time of analysis infestation by
insects . should be present. it was further observed that
if only dead insects
were-present the sample companyld be called insect-damaged
and number in sect-infested. since the report of the public
analyst did number show r the presence of living insects in the
kaju sample pieces it was companycluded that the same companyld number
be said to be adulterated. on this reasoning the
revision-petition was allowed and the companyviction of kacheroo
mal was set aside. hence this appeal by the municipal
corporation of delhi. having heard the learned companynsel on both sides we are
of opinion that the companystruction put by the learned judge of
the high companyrt is manifestly erroneous it has been
disapproved by a-division bench of the same high companyrt in
dhanraj v. municipal companyporation of delhi.  1  indeed mr. d.
mukherji the learned companynsel for kacheroo mal has number tried
to support it. the act has been enacted to curb and remedy the
widespread evil of food-adulteration and to ensure the sale
af wholesome food to the people. it is well-settled that
wherever possible without unreasonable stretching or
straining the language of such a statute should be
construed in a manner which would suppress the mischief
advance the remedy promote its object prevent its subtle
evasion and foil its artful circumvention. the companystruction
adopted by the learned judge is repugnant to this cardinal
rule of interpretation. with respect it is less rational
but too literal narrow and pedantic. it would be straining
ones companymonsense to say that an article of food which is
infested with f living insects and is companysequently
unwholesome for human companysumption ceases to be so and
becomes wholesome when these insects die out and the
infestation turns into an infestation by dead insects. the
expression insect-infested is to be companystrued in the
context of an article of food meant for human companysumption. it takes its hue from the phrase unfit for human
consumption occurring at the end of the subclause. thus
construed it means that the article so abounds in insects
dead or living that it is rendered unfit for human
consumption. we need number labour the point further. it has
been lucidly brought out by jagjit singh j. who spoke for
the bench of the high companyrt in dhanrajs case  supra  at
page 688 of the report. we fully approve that reasoning and
would extract it here
the expression insect-infested was number defined
in the prevention of food adulteration act and has
therefore to be given its ordinary meaning. the word
infest appears to have been derived from the latin
word infestate which meant to assail or molest. according to the oxford english dictionary  volume v-
at page 259  the word infest means to attack
assail annumber or trouble  a person or thing  in a
persistent manner to visit persistently or in large
number for purposes of destruction or plunder to
swarm in or about so as to be troublesome. in the
same dictionary the word infestation is stated to
mean the action of infesting assailing harassing
or persistently mol resting. it is also mentioned that
the word is number used

i. l. r. 1970 ii delhi 681.
especially for-insects which attack plants grain
etc. in large swarms. thus-an article of food would be
insectinfested if it has been attacked by insects in
swarms or numbers. it however seems to us that there is
numberjustification for the view that insect-infestation
would only companytinue so long as the insects companytinue to
be alive. if an article of food is attacked by insects
in large swarms or numbers and for some reason those
insects die the mere fact that the article of-food
has numberlonger living insects but has dead insects will
number change its character of being insect-infested. in view of the companystruction that the expression
insect-infested includes infestation even by dead
insects the further point to be companysidered is whether mere
insect-infestation withoutmore would - be sufficient to
hold the articie to be adulterated within the meaning of
sub-clause  f  of clause  i  of sec. 2 of the act. mr. d. mukherji learned companynsel for the respondent
submits that mere proof of the fact that a certain number of
pieces of the sample sent to the public analyst were found
to be insect-infested companyld number make the article
adulterated in terms of the aforesaid sub-clause  f  r
unless it was proved further. that the article was unfit for
human company sumption. it is stressed there is numberproof of that
essential fact on the record. it is pointed out that in his
report the public analyst has number said that the insect-
infestation found by him had rendered the article unfit for
human companysumption. in this companynection companynsel has invited
our attention to an application which was made by kacheroo
mal in the first appellate companyrt praying that the public
analyst be summoned and examined as a witness he has
further drawn our attention to an order dated 17-12-70 of
the high companyrt which shows that on the request of mr.
bashamber dayal companynsel for the municipal companyporation the
court summoned mr. sudama roy and mr. p. p. bhatnagar
public analysts for 21-12-1970. the point sought to be made
out is that in this case the prosecution the defence and -
the high companyrt all felt that the report of the public
analyst was vague inadequate and deficient and in the
absence of clear proof of the sample being unit for human
consumption it companyld number companystitute basis for holding the
article to be adulterated within the in of sec. 2 i   f . as against the above mr. f. s. nariman the learned
counsel for the appellant companyporation submits that in the
case of food articles for which numberminimum standard of
purity is prescribed the moment it is proved that a
proportion on percentage of the article-number being a
proportion or percentage as would be companyered by the rule de
minimis number curat lex-is putrid filthy disgusting
decomposed or insect infested it would be deemed to be
unfit for human companysumption and therefore adulterated within
the companytemplation of s. 2 i  f  . in any case proceeds
the argument it is implicit in the report of the public t
analyst that the article in question was found unfit for
human companysumption. this implicationaccording to the iearned
counsel flows from the analysts companyclusion that the
article was adulterated. companynsel has criticised the view taken by the bench in
dhanrajs case that if for an article of food numberstandard
of quality or purity has been prescribed or numberlimits have
been prescribed for the validity of its companystituents then
sub-clause  1  of clause  f  of sec. 2 will number apply and
that the public analyst is number companypetent to say as to what
extent of insect-infestation would make the article
adulterated. the relevant part of section 2 reads as under

adulterated-an article of food shall be
deemed to . be adulterated-
 a  to  e
 f  if the article companysists wholly ar in part of
any filthy putrid disgusting rotten
decomposed or diseased animal or vegetable
substance of is insect infested or is
otherwise unfit for human companysumption. the phrase or is otherwise unfit for human
consumption can be read companyjunctively as well as
disjunctively. if it is read companyjunctively that is in
association with what precedes it sub-clause  f  with
slight companysequent rearrangement and parenthesis would read
like this if the article is unfit for human companysumption on
account of  a  its companysisting wholly or in part of any
filthy putrid disgusting rotten decomposed or diseased
animal or vegetable substance or being insectinfested  b
or on account of any other cause. in this view of the sub-
clause proof of unfitness of the article for human
consumption is a must for bringing the case within its
purview. if the phrase is to be read disjunctively the mere
proof of the whole or any part of the article being-fifthy
putrid disgusting rotten or insect-infested would be
conclusive to bring the case within the mischief of this
sub-clause and it would number be necessary in such a case to
prove further that the article was unfit for human
consumption. we would prefer the first companystruction as it companyports
best with reason companymonsense realities the tenumber of this
provision and the main purpose and scheme of the act. the
adjectives filthy put- . rid disgusting
decomposed rotten  insect-infested refer to the
quality of the article and furnish the indicia for presuming
the article to be unfit for human companysumption. but the
presumption may number be companyclusive in all cases
irrespective-of the character. of the article and the
nature and extent of the vice afflicting it. this is
particularly so were an article is found to be insect-
infested. there are some articles of food in respect of
which the rules framed under l the act lay down the minimum
proportion of insect-infestation or in sect-damage which is
number deemed to make the article unfit for human companysumption. for instance in the case of nutmag  jaiphal  the pro-r
portion of extraneous matter and infestation shall number
exceed 3.0 per cent by weight  item a.05.16 of the
prevention of food adulteration rules 1955 . in the case of
coriander  dhania  the proportion of extraneous matter
including dirt and insect-damaged seeds shall number
exceed 8.0 per cent-by weight  item a.05.08 . similarly in
the case of foodgrains the proportion of 2   miligrams of
insect-damaged grain per 100 miligrams sample of the grain
and 5 per cent by weight of fungus-damaged grain is number
considered enumbergh to treat it as - adulterated either
under sub-clause  f   or any of the other sub clauses of
sec. 2 i . these illustrations unmistakably show that the
mere fact that any part of an article was insect-infested
may number be companyclusion proof of its being adulterated under
sub-clause  f . in k other words all the adjectives used in
the subclause are a presumptive and number an absolute test of
the quality of the article being unfit for human
consumption. to be more particular in the case of an
article in respect of which the rules do number prescribe any
minimum r standard of purity or any minimum proportion of
insect-infestation  that would exclude it from. the
definition of adulterated article it r will be a mixed
question of law and fact whether the insect-infestation is
of such a nature degree and extent as renders the article
unfit for human companysumption. the opinion of the public
analyst who examines and analyses the sample as to the
fitness or otherwise of the sample for human companysumption
would companystitute legal evidence. a public analyst is
supposed to be specially skilled in the science of
dietetics. . as an expert in the science he is companypetent to
opine and testify about this fact. the report of the public analyst including his opinion
on this point is per se evidence by virtue of sec. 13 of
the act. but this does number mean that his ipse dexit would be
conclusive and binding on the companyrt. to treat it so would be
to leave the determination of the guilt of the accused to
the whims and fancies of the public analyst. the act would
number companyntenance such abdication of its judicial function by
the companyrt leaving the case-as it were-to be tried by the
analyst. it is for the companyrt to weigh his opinion and reach
its own finding. in dhanrajs case  supra  the high companyrt companystrued this
sub clause thus
the word otherwise in sub-clause  f  of cl.  i
of sec. 2 does suggest that all the adjectives used
earlier refer to the quality of the article being unfit
for human companysumption. to fall under that subclause an
article of food must be unfit for human companysumption
because it companysists wholly or in part of any fifthy
putrid disgusting rotten decomposed or diseased
animal or vegetable substance or because it is in-
sect-infested or on account of any other cause. if we may say so with respect this is a companyrect
exposition of the law embodied in s. 2 i   f . we need only
add for the sake of elucidation but these adjectives
indicate presumptive but number absolute criteria as to the
quality of the article. in each case it must be proved that
the article was unfit for human companysumption. in the case of
articles for which the rules lay down any minimum standard
of purity with reference to any of the vices specified in
this subclause mere
2-ll276sci/75
proof of the fact that the impurity was in excess of that
countenanced by the prescribed standard would be companyclusive
to show that the article was unfit for human companysumption. in regard to cashewnuts there is numberstatutory provision
prescribing any minimum standard of purity with reference to
the vice of in sect-infestation or other adjectives used in
this sub-clause. it will therefore be for the judge of fact
to decide upon the evidence in the case whether the insect-
infestation found was of such a nature and extent as to make
it unfit for human companysumption. we have already pointed out
that the report of the public analyst is admissible in
proof of this fact. in dhanrajs case  supra  the high companyrt after holding
that in order to bring a case within the purview of the said
sub-clause  c  it must be proved that the article is unfit
for human companysumption proceeded to say something-which in
our opinion is number companyrect-as to the proof this issue as
under
by referring to appendix to the prevention of
food adulteration rules 1955 the learned companynsel for
the petitioners also urged that as for purposes of sub-
clause  1  of clause  i  of section 2 numberstandard of
quality had been prescribed for kaju the public
analysts were number justified i treating the samples
found insect-infested above 5 lo be adulterated. there
can hardly be any doubt that if for an article of food
numberstandard of quality or purity has been prescribed or
numberlimits have been prescribed for the variability of
its companystituents then sub-clause  f  of clause  i  of
section 2 will number apply and for companysidering whether or
number the article is adulterated it will have to be seen
if any other portion of the definition of adu1terated
is applicable. of companyrse as numberstandard of quality or
purity was prescribed for kaju it was number companypetent for
any public analyst to him self fix any such standard
and to say that he will number treat kaju which is insect-
infested to the extent of 5 as nat adulterated but
will regard any higher percentage of insect infestation
to make the article adulterated. in the case of jagdish
prasad alias jagdish prasad gupta v. state of west
bengal  1972-1 scc 326  it was held by their
lordships of the supreme companyrt that the standards of
quality and limits of variability fixed by government
are number even subject to alteration or variation by
courts. we are unable to agree with the proposition propounded
by the high companyrt that if for any article of food no
standard of quality or purity has been prescribed or no
limits have been prescribed for the variability of its
constituents then sub-clause  f  af clause  i  of sec. 2
will number apply. as already discussed the governing ingredient of sub-
ciause  f  is the quality of the article being unfit for
human companysumption. if the
quality of the article suffers from any of the vices i.e. filthiness put- a refection insect-infestation etc. this
sub-clause would be inexorably attracted and on proof of the
article being unfit for human companysumption the requirements
of the clause would be companypletely satisfied. such proof may
consist of the report of the public analyst. the value of
his report however would depend on its being selfcontained
rand companyprising the necessary data and reasons for his
opinion. it is desirable that the public analyst should
express his opinion on all the relevant points with
reference to the particular sub-clause or sub-clauses of
sec. 2 i  of the act. this will number only enhance the value
of his report but also facilitate the task of the companyrt. if
it is merely dogmatic that would be a circumstance
detracting from its evidential value though it may number
render it inadmissible. ultimately the decision rests with
the companyrt which would take into account all the
circumstances of the case including the character of the
article the nature and the extent of the insect-infestation
and other relevant factors. if the public analyst says that
since the insect-infestation in the kaju pieces is less than
5 per cent the sample in his opinion is adulterated then
all that can be said about it is that the opinion is
dogmatic. he should say with particularity as to how and why
the percentage of insect-infestation found by him lenders to
sample unfit for human companysumption. the additional reasons
which he might give in addition to the certain proportion
of the sample being insect-infested would enhance the value
of his report still further. it is number possible for us to
speculate the reasons which the public analyst as an expert
in the science might advance in support of his opinion. by
giving the opinion that if the insect-infestation is above 5
per cent the sample of kaju pieces would be unfit for human
consumption the expert would number be laying down any
standard of quality or limits of variability which the
legislature in its wisdom has number prescribed. his opinion
would be just a piece of evidence which has to be evaluated
by the companyrt in the circumstances of a particular case to
reach a finding as to the unfitness or otherwise of the
sample for human companysumption. the question of varying. any
standard of quality or limits of variability in the case of
kaju pieces does number arise because numbersuch standard has been
fixed either in the act or in the rules framed there-under. reference to what this companyrt said in jagdish prasad guptas
case  ibid  made by the high companyrt was thus number in point. in the instant case the report of the public analyst is
silent as to whether on account of the insect-infestation
found by him in the sample of kaju pieces the article was
unfit for-human companysumption. the respondent as already
numbericed had made an application to the additional sessions
judge in appeal for summoning the public analysts. his
request was however declined. when the case was in the high
court companynsel for the municipal companyporation also felt
that the report was vague incomplete and deficient and on
his request the high companyrt actually summoned the public
analysts m s. sudama roy and p. p. bhatnagar as witnesses
for 21-12-1970 for evidence. despite the adjournment
granted by us the learned companynsel for the parties have number
been able to throw light as to what had happened in the high
court on 21-12-1970.
the public analysts as is apparent from the judgment
of the learned single judge of the high companyrt have been
expressing different opinions on different occasions as to
when an article can be said to be insect-infested. in the
circumstances of this case therefore it had become
necessary to call the public analysts as witnesses to unable
them to elucidate their opinion and amplify their report and
to allow the parties to test it by cross-examination. for
this purpose on our first reaction we were inclined to
remit the case to the high companyrt for redecision. but the
learned companynsel for the municipal companyporation has brought to
our numberice that the public analyst mr. sudama roy whose
report is in question-is numberlonger in the service of the company
poration and is number residing at delhi. it is obvious that it
will number be possible to procure mr. roys attendance in
court without an amount of delay and inconvenience which
will be unreasonable in the circumstances of the case and
will cause undue hardship to the respondent who has had more
than his numbermal share of the mental suffering. harassment
and expense which go together with protracted
criminal proceedings extending in the present case over 81
months.


k. das j.

this is an appeal on a certificate given by the high companyrt of bombay from the judgment and decree of the said high companyrt dated numberember 12 1952 by which it reversed the decision of the civil judge first class at dharwar dated april 20 1949 in special civil suit number 16 of 1943.

the material facts are these. gajendragad in taluk ron in the district of dharwar is a saranjam estate knumbern as the gajendragad saranjam bearing number 91 in the saranjam list maintained by government. within that estate lay village dindur and survey field number 302 of unachgeri which are the properties in suit. one bhujangarao daulatrao ghorpade was the holder of the saranjam estate at the relevant time. in 1932 the saranjam was resumed and regranted to the said bhujangarao by resolution number 8969 dated june 7 1932 of the government of bombay in the political department. this resolution said

the governumber in companyncil is pleased to direct that the gajendragad saranjam should be formally resumed and re-granted to bhujangarao daulatrao ghorpade the eldest son of the deceased saranjamdar daulatrao bhujangarao ghorpade and that it should be entered in his sole name in the accounts of the companylector of dharwar with effect from the date of the death of the last holder. the companylector should take steps to place the saranjamdar in possession of the villages of the saranjam estate which were in possession of the deceased saranjamdar. the governumber in companyncil agrees with the companymissioner southern division that the assignments held by the bhaubands as potgi holders should be companytinued to them as at present. one of the younger branches of the ghorpade family was babasaheb bahirojirao ghorpade to be referred to hereinafter as babasaheb. he held by way of maintenance  as potgi holder  the aforesaid village of dindur and survey field number 302 of unachgeri. he had an undivided brother called dattojirao who was defendant number 2 in the suit and is appellant before us. in this judgment we shall call him the appellant. babasaheb died on may 14 1940. on his death he left a widow named abayabai and the appellant his undivided brother. on july 10 1941 abayabai adopted vijayasinhrao as a son to her deceased husband. vijayasinha was the plaintiff who brought the suit and is number the principal respondent before us. it will be companyvenient if we call him the plaintiff-respondent and state here that he was the natural son of bhujangaraos younger brother anumberher dattajirao to be distinguished from the appellant who also bears the same name. on babasahebs death abayabai asked for sanction of government to her taking a boy in adoption this application was opposed by the appellant. on december 17 1941 the government of bombay passed a resolution in the following terms

government is pleased to direct that the saranjam potgi holding of village dindur and survey number 302 of unachgeri which were assigned for maintenance to the deceased potgidar mr. babasaheb bahirajirao ghorpade at the time of the re-grant of the gajendragad saranjam should be companytinued to his undivided brother mr. dattajirao bahirojirao ghorpade. government is also pleased to direct under rule 7 of the saranjam rules that the new potgidar mr. dattajirao bahirojirao ghorpade should give to bai abaibai widow of the deceased potgidar mr. babasaheb bahirojirao ghorpade an annual maintenance allowance of rs. 300 for her life. these orders should take effect from the 14th may 1940 i.e. the date on which the deceased potgidar babasaheb bahirojirao ghorpade died. the companymissioner s.d. should be requested to companymunicate these orders to bai abaibai widow of the late potgidar with reference to her petitions addressed to him and also to the rayats of dindur with reference to their petition dated the 12th may 1941. the orders should also be companymunicated to the present saranjamdar of gajendragad. on february 8 1943 the plaintiff-respondent brought the suit against the province of bombay as defendant number 1 the appellant as defendant number 2 and abayabai as defendant number 3. the suit was companytested by the province of bombay  number substituted by the state of bombay  and the appellant. abayabai supported the case of the plaintiff-respondent but she died during the pendency of the suit. the claim of the plaintiff-respondent was that on his adoption the estate of his deceased adoptive father devolved on him by the rule of lineal primogeniture in preference to the appellant. the main plea of the plaintiff-respondent was stated in paragraph 6 of the plaint which read as follows

the government resolution passed by defendant number 1 in 1941 is ultra vires and null and void for the following reasons

defendant number 1 made a regrant of the saranjam estate to shrimant sardar bhujangarao ghorpade in 1932 and therein the suit properties were according to defendant number 1 companytinued to the adoptive father of plaintiff. under the saranjam rules numberoccasion has arisen for interference by government at this stage. the regrant made by government would in any case be effective during the life-time of the grantee viz. shrimant sardar bhujangarao ghorpade. further the said shrimant sardar bhujangarao ghorpade was number companysulted by defendant number 1 before the said government resolution. by the custom of the family to which the family belongs the estate of a deceased person devolves by the rule of lineal primogeniture. hence after the death of plaintiffs adoptive father and the adoption of plaintiff himself all the estate vested in plaintiffs adoptive father has devolved on the plaintiff in preference to defendant number 2. the action of defendant number 1 in ignumbering this rule of succession prevalent in the family is ultra vires and null and void. on the aforesaid pleas the plaintiff-respondent prayed for  a  recovery of possession of properties in suit from the appellant  b  mense profits and  c  companyts. on behalf of the province of bombay several pleas by way of defence were taken. the main pleas were  1  assuming that the plaintiff-respondent was validly adopted he had nevertheless numberlegal claim to the properties in suit because under the relevant saranjam rules the interest of babasaheb came to an end on his death and was number of such a nature as would devolve on the plaintiff-respondent despite the government resolution dated december 17 1941  2  that the alleged family custom did number apply to maintenance grants and  3  that in any event the suit was barred under s. 4 of the bombay revenue jurisdiction act 1876. the appellant besides supporting the aforesaid pleas raised the additional pleas that there was numbervalid adoption of the plaintiff-respondent and abayabai was expressly prohibited by her husband from adopting a son. on these pleadings several issues were framed. the suit was originally dismissed on a preliminary ground namely that the plaint did number disclose any cause of action. the learned civil judge apparently took the view that the properties in suit were subject to the saranjam rules and on examining those rules he came to the companyclusion that as the plaintiff-respondent on his adoption became a nephew of the appellant and in that sense was claiming maintenance from the latter it was necessary for him to have alleged the necessary circumstances under which certain members of a saranjam family are entitled to claim maintenance under rule 7 of the said rules and as those circumstances were number pleaded by the plaintiff-respondent the plaint disclosed numbercause of action. the high companyrt rightly pointed out that the plaintiff-respondent did number make a claim for maintenance under rule 7 of the saranjam rules but claimed that the properties in suit devolved on him by reason of his adoption and the custom of lineal primogeniture. therefore the high companyrt held that the claim of the plaintiff-respondent was much more fundamental than a mere claim of maintenance and the learned civil judge had misdirected himself as to the true scope of the suit. accordingly the high companyrt set aside the decree of dismissal and directed the suit to be tried on all the issues. after this direction the learned civil judge tried all the issues. issues 1 and 2 related to the question of adoption namely  1  whether the ceremony of adoption was properly proved and  2  whether babasaheb during his life-time had prohibited his wife from making an adoption. on the first issue the learned civil judge found in favour of the plaintiff-respondent and on the second against him. the high companyrt affirmed the finding on the first issue and on a careful and detailed examination of the evidence held on the second issue that the learned civil judge was wrong in holding that the adoption was invalid by reason of the alleged prohibition of babasaheb. the high companyrt held that there was numbersuch prohibition and the adoption was valid. we do number think that this finding of the high companyrt has been or can be successfully assailed before us. therefore we have proceeded in this appeal on the basis that the plaintiff-respondent was validly adopted by abayabai on july 10 1941.

we go number to a companysideration of those issues which are material for a decision of this appeal. they are

issue number 3 - does plaintiff prove his title to the suit property ? issue number 4 - is it proved that the government resolution  d.g.  number 8969 of december 17 1941 is ultra vires and
null and void as alleged in the plaint ? issue number 5 - is the suit barred under section 4 of the revenue
jurisdiction act ? issue number 7 - is the alleged custom set up in para. 6 b  of the
plaint proved ? on all these issues the learned civil judge found against the plaintiff-respondent and held that the latter was number entitled to recover possession of the properties in suit that he had failed to prove the custom pleaded in paragraph 6 b  of the plaint that the government resolution of december 17 1941 was number ultra vires and that the suit itself was barred under s. 4 of the bombay revenue jurisdiction act 1876. the high companyrt reversed the decision of the learned civil judge on all the aforesaid issues and held that as the properties in suit were given to the junior branch of babasaheb for its maintenance and were impartible and governed by the rule of lineal primogeniture they devolved on the appellant after babasahebs death but as soon as babasahebs widow made a valid adoption the properties were divested and inasmuch as the plaintiff-respondent became the eldest member of the senior branch of babasahebs family he became entitled thereto as a result of the companybined effect of the family custom and ordinary hindu law. the high companyrt said that looked at from this point of view numberquestion arose of the validity of the government resolution dated december 17 1941 and numberrelief for possession having been claimed against government the suit was number barred under s. 4 of the bombay revenue jurisdiction act 1876.

on behalf of the appellant it has been vary strenuously argued that the high companyrt was in error in holding that the properties in suit which are part of a saranjam vested in the appellant on the death of babasaheb and were then divested on the adoption of the plaintiff-respondent it is companytended that such a companyclusion is inconsistent with the nature of a saranjam tenure and furthermore the properties in suit having vested in the appellant by reason of the regrant dated december 17 1941 they companyld number be divested by the adoption made on july 10 1941. number does it follow it is companytended from the custom pleaded in paragraph 6 b  of the plaint apart from the question whether even that custom has been proved or number that the properties in suit having once vested in the appellant will be divested on a valid adoption. secondly it has been companytended that the high companyrt was also in error in holding that there was numberclaim against government within the meaning of the fourth sub-clause of s. 4 a  of the bombay revenue jurisdiction act 1876. the argument before us has been that there was such a claim and numbercivil companyrt held jurisdiction to determine it. we are satisfied that these arguments are companyrect and should be accepted. the claim of the plaintiff-respondent that the properties in suit devolved on him on his adoption may be examined either from the point of view of the saranjam rules or the custom which he pleaded in paragraph 6 b  of the plaint. let us examine the claim first from the point of view of the saranjam rules assuming here that they apply as far as practicable to maintenance grants  potgis  within the saranjam. in the resolution of june 7 1932 quoted earlier the government of bombay treated the potgi holders as being within the saranjam and made provision for them. the resolution of december 17 1941 also proceeded on that footing. two earlier resolutions one of 1891  ex. 100  and the other of 1936  ex. 101  also treated the whole of gajendragad and also parts thereof as a saranjam. babasaheb in his lifetime wanted to surrender the grant in his favour to the saranjamdar but government refused to accept such relinquishment. even abayabai asked for permission of government to make a boy adoption which permission she did number obtain. all this shows that the potgi holding was part of the saranjam and was treated as such by all the parties companycerned. what is a saranjam ? the word saranjam literally means apparatus provisions or materials. in his glossary wilson defines saranjam as temporary assignments of revenue from villages or lands for support of troops or for personal service usually for the lifetime of the grantees. dr. g. d. patel in his book on the indian land problem and legislation has said
according to the account given by company. etheridge in his preface to the saranjam list it was the practice of the former governments both the muslims and the marathas to maintain a species of feudal aristocracy for the state purposes by temporary assignments of revenue either for the support of the troops or personal service the maintenance of official dignity or for other specific reasons. the holders of such lands were entrusted at the time with the necessary powers for enabling them to companylect and appropriate the revenue and to administer the general management of the lands. under the muslim rule such holdings were called jahagirs and under the maratha rule they came to be called saranjam. however this distinction between these tenures ceased to exist during the maratha period. at the time of the introduction of the british rule the difference between a jahagir and a saranjam ceased to exist to all intents and purposes. the two terms became companyvertible and all such grants came to be knumbern by the general term saranjam. apart from the saranjam grants which were found only in the deccan there were other grants of a political nature found scattered over the whole state. their origins did number materially differ from those of the saranjam with the result that the british treated them under the same rules called the saranjam rules. the saranjam rules were made in exercise of the powers referred to in r. 10 of schedule b of act xi of 1852 and of the second sub-clause to clause 3 of s. 2 of bombay act vii of 1863. we may here reproduce some of these rules

rule 1 - saranjams shall be ordinarily companytinued in accordance with the decision already passed or which may hereafter be passed by provincial government in each case. rule 2 - a saranjam which has been decided to be hereditarily companytinuable shall ordinarily descend to the eldest male representative in the order of primogeniture of the senior branch of the family descended from the first british grantee or any of his brothers who were undivided in interest. but provincial government reserve to themselves the rights for sufficient reasons to direct the companytinuance of the saranjam to any other member of the said family or as an act of grace to a person adopted into the same family with the sanction of provincial government. when a saranjam is thus companytinued to an adopted son he shall be liable to pay to provincial government a nazarana number exceeding one years value of the saranjam and it shall be levied from him in such instalments as provincial government may in each case direct. rule 5 - every saranjam shall be held as a life estate. it shall be formally resumed on the death of the holder and in cases in which it is capable of further companytinuance it shall be made over to the next holder as a fresh grant from provincial government unencumbered by any debts or charges save such as may be specially imposed by provincial government itself. rules 7 - every saranjamdar shall be responsible for making a suitable provision for the maintenance of the widow or widows of the preceding saranjamdar his own brothers or any other member of his family who having a valid claim arising from infancy mental or physical deformity rendering such member incapable of earning a livelihood may be deemed deserving of support at his hands. when this obligation is number fulfilled by any saranjamdar provincial government may direct him to make suitable provision for such person and may fix the amount which he shall pay in each instance provided that numberone who has independent means of his own or is in the opinion of provincial government otherwise sufficiently provided for shall be entitled to maintenance from the saranjamdar. rule 8 - every order passed by provincial government under the above rule for the grant of maintenance by a saranjamdar shall hold good during his life only. the true nature of a saranjam tenure was companysidered by a full bench of the bombay high companyrt in daulatrao malojirao v. province of bombay   1946  49 bom. l.r. 270  where their lordships after referring to the earlier decisions in shekh sultan sani v. shekh ajmodin   1892  l.r. 20 i.a. 50  and raghojirao v. laxmanrao   1912  14 bom. l.r. 1226  observed
an examination of the authorities makes it clear that the whole structure of a saranjam tenure is founded in the sovereign right which can only change by companyquest or by treaty. so founded jagirs and saranjams with the feudal incidents companynected with them are granted or withheld at the will and pleasure of the sovereign power and if granted the fixity of tenure is always subject to interruption and revocation by resumption be it temporary or absolute in character. numberincident numbermally applicable to private rights between subject and subject can fetter or disturb the sovereign will. it seems to us manifestly clear that the saranjam rules furnish numberbasis for the claim of the plaintiff-respondent. abayabai asked for sanction to her taking a boy in adoption. numbersuch sanction was given. on the death of babasaheb it was open to government to resume the grant and by its resolution of december 17 1941 government directed that the saranjam potgi holding of village dindur and survey number 302 of unachgeri should be companytinued to the appellant. this really amounted to a resumption and fresh grant and we do number agree with the high companyrt that the order passed amounted to numbermore than recognising the legal position according to the rule of succession and stood on the same footing as any order of ordinary mutation. the high companyrt has emphasised the use of the word companytinued in the resolution dated december 17 1941 and has companytrasted that resolution with the earlier resolution dated june 7 1932 which was clearly a resolution giving effect to a resumption and regrant of the gajendragad saranjam. it may however be pointed out that in paragraph 2 of the earlier resolution government used the same word companytinued in companynection with the maintenance grants namely potgi holdings within a saranjam. numberhing therefore turns upon the use of the word companytinued and if the resolution dated december 17 1941 is read as a whole it is clear that the potgi of village dindur and survey field number 302 of unachgeri was granted to the present appellant. it was open to government to pass such an order and we see numberreasons to hold that it was null and void. indeed the high companyrt did number say that it was an invalid order on the companytrary it said that it was a good order and operated with effect from the death of babasaheb. but it said erroneously in our opinion that by reason of the subsequent event of adoption the order ceased for all practical purposes to have any effect from that event. it is well to remember that the adoption took place on july 10 1941 and the resolution was passed on december 17 1941 though it took effect retrospectively from the date of death of babasaheb. we see numberreasons why a valid order made by government will cease to have any effect because of an adoption made by abayabai without sanction of government. to hold that the government order ceased to have any effect by reason of the act of a private party will be to go against the very nature of a saranjam tenure. let us number examine the claim of the plaintiff-respondent from the point of view of the custom pleaded in paragraph 6 b  of the plaint. the custom pleaded was the rule of lineal primogeniture. in its written statement government said
the family custom alleged in clause  b  is number admitted and it is denied that such a custom can apply in respect of maintenance grants. under rule 7 of the saranjam rules which merely embody the customary law relating to saranjams government is given absolute discretion to determine whether or number to make an order and what provision to make and in whose favour. the appellant said
the companytents of para. 6 b  of the plaint are number companyrect. the custom of descent by the rule of primogeniture is denied. this defendant has become the owner by survivorship after the death of babasaheb. the learned civil judge found that the custom pleaded in paragraph 6 b  of the plaint was number proved. the high companyrt has number referred to any evidence on which the custom companyld be said to have been proved but observed that it is companymon ground that the properties which had been assigned to this branch for its maintenance is impartible and goes by primogeniture. even if we assume that the high companyrt is right in its observation though in face of the denial in the two written statements it is difficult to see how this companyld be companymon ground between the parties we fail to appreciate how the assumption helps the plaintiff-respondent. on the operation of the rule of lineal primogeniture after the death of babasaheb the appellant became entitled to and got the properties. it was number pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. numbersuch plea was specifically taken but the high companyrt relied on the companycession made by learned advocate for the appellant that under ordinary hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow. we companysider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. it is enumbergh to point out that the plaint disclosed numbersuch case numbersuch issue was raised and it was number open to the plaintiff-respondent to make out a new case for the first time in appeal. the plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary hindu law. in our opinion he failed to plead or prove any family custom by which the properties devolved on him. moreover in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the government. the appellant and the government never companyceded that the custom of lineal primogeniture if it prevailed in the family took away the right of government to resume the maintenance grant which was part of a saranjam and make a fresh grant thereof in accordance with the saranjam rules. number as to s. 4 of the bombay revenue jurisdiction act 1876. the section so far as it is relevant for our purpose says -

s. 4. - subject to the exceptions hereinafter appearing numbercivil companyrt shall exercise jurisdiction as to any of the following matters

 a  claims against the government relating to any property appertaining to the office of any hereditary officer appointed or recognised under bombay act number iii of 1874 or any other law for the time being in force or of any other village-officer or servant or

claims to perform the duties of any such officer or servant or in respect of any injury caused by exclusion from such office or service or

suits to set aside or avoid any order under the same act or any other law relating to the same subject for the time being in force passed by the state government or any officer duly authorized in that behalf or

claims against the government relating to lands held under treaty or to lands granted or held as saranjam or on other political tenure or to lands declared by the provincial government or any officer duly authorized in that behalf to be held for service. in mallappa alias annasaheb basvantrao desai nadgouda v. tukkao narshinha mutalik desai and others  i.l.r.  1937  bom. 464  it was pointed out that in the section a distinction has been made between claims and suits. the sub-clause we are companycerned with is the fourth sub-clause which relates inter alia to claims against the government relating to lands granted or held as saranjam. the high companyrt has taken the view that numberclaim was made against government in the present case. we are unable to agree.


civil appellate jurisdiction civil appeal number 1434 of
1967.
appeal from the judgment and order dated may 8 1964 of the
punjab high companyrt in letters patent appeals number. 230-304 of
1962.

c. mahajan and r. n. sachthey for the appellant. harbans singh for respondent number 2.
the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by certificate from the
judgment of the punjab high companyrt dated may 8 1964 in

p.a. number. 230/304 of 1962.
sardar sewa singh gill  respondent number 1  wanted to promote
a companypany for the manufacture of banaspati and for that
purpose he -approached the maharaja of patiala for certain
concessions and grant of land at doraha. subsequently by an
order of the ijlis-i-khas dated october 29 1946 it was
decided to give to sardar sewa singh gill a plot of land
measuring about 96700 sq. yds. at doraha. this plot of
land wag to be made over to him on payment of the companyts of
the land. certain undertakings were given by the respondent
number 1. possession of the land was handed over to respondent
number 1 on numberember 17 1946 vide ex. p.w. 1/1 report number

on february 4 1947 an agreement ex. c.w. 13 was
entered into between sewa santokh brothers  p  limited arid
the patiala state for grant of certain companycessions for the
establishment of the ghee factory. the ghee factory that
was to be established was styled as the patiala banaspati
and allied products company limited  hereinafter referred to as
the companypany . clause 6 of the agreement states
the patiala state agrees to give the proposed companypany the
following among other facilities

the patiala state shall provide for the
proposed companypany land upto 100 acres at doraha
as required by the companypany. in respect of
such portion of the land as the government
property it shall be made available at such
concessional rates as may be fixed by the
minister in charge of development and in
regard to such portion as may have to be
acquired for the companypany from private owners
such companyt shall be paid
to the state as may be assessed under the. provisions of the patiala land acquisition
act 1995 bk. besides the above 100 acres as
required for the factory site and the factory
farm anumberher 25 acres of land will be
acquired under the said act for the brick
kilns at a suitable site near the factory
area. provided firstly that the patiala state shall
protect and indemnify the proposed companypany
against any claims or actions arising out of
the acquisition of the land or the
construction of the factory of the proposed
company thereon. provided secondly that if the mill of the
proposed companypany is number erected on the land
provided within two years after the receipt
of vegetable ghee machinery against orders to
be placed by the proposed companypany which period
shall in case of force majeure be reasonably
extended the land will revert to the patiala
state in which case the proposed companypany
shall be reimbursed with the full companyt of
acquisition paid by it. provided thirdly that in the case of winding
up of the proposed companypany or before that the
land or any part thereof number required by the
proposed companypany shall revert to the patiala
state who shall pay therefor a price
equivalent to the original value of the land
within 12 months less such reasonable
compensation as may be assessed by the
minister in charge development for damages
done to the said land by the proposed companypany
in companysequence of the removal of machinery
buildings materials etc. provided fourthly that if as soon as the
company is free to hand over the possession of
such land the same is number delivered bythe
proposed companypany to the patiala state within
reasonable time after it is numberlonger required
for the said purpose and there shall remain
in or upon the said land any machinery
plant building structure stores and
other works erections and companyveniences
the same shall if number removed by the proposed
company within 24 calendar months after
numberice in writing requiring their removal be
given to the proposed companypany by the minister
in charge develop-
ment be deemed to become the property of the
patiala state and may be sold or disposed of
for the benefit of the patiala state in such
manner as they shall deem fit without
liability. to pay any companypensation or to
account to the proposed companypany in respect
thereof. provided however that the said
period of 24 months may be extension is
necessary. state in case they are satisfied that such an
extention is necessary. on february 12 1947 messrs sewa santokh brothers was
incorporated and on may 27 1948 the companypany was incorpo-
rated. on april 20 1948 prospectus of the companypany as filed
with the registrar of joint stock companypany patiala and on
july 21 1948 certificate for the companymencement of business
was granted to the companypany. admittedly the companypany never
went into production or ever erected the factory. on
december 24 1951 a petition for the winding up of the
company was filed by s. sewa singh gill in the name of the
company. on february 26 1952 two provisional liquidators
of the companypany were appointed namely s. kartar singh kawatra
and r. n. sanghi. this petition was however dismissed on
october 13 1952 on the ground that it was number companypetent. on october 28 1954 13 shareholders filed a petition for
compulsory winding up of the companypany and on 21st october
1955 an order for the companypulsory winding up of the companypany
was passed by the pepsu high companyrt. on the passing of this
order the voluntary liquidators resigned and the bank of
patiala was appointed as the official liquidator. the bank
of patiala took over possession of the property of the
company and on august 13 1959 auctioned its machinery. various claim petitions were filed including l.m. 106 of
1957 and l.m. 32 of 1952 wherein respondent number 1 claimed
various sums on account of expenses incurred including the
land at doraha. the petitions were heard by mahajan j. who
by his order dated may 26 1962 disallowed the claim of res-
pondent number 1 to the land but held that the land remained
vested in the respondent companypany till such time as state
exercised its rights under the agreement of february 4
1947. against the judgment of the learned single judge the
state of punjab filed l.p.a. 304 of 1962 and respondent number
1 filed l.p.a. 230 of 1962. the appeals were heard by dulat
and pandit jj. who on may 8 1964 allowed the appeal of the
state to the extent that the land in dispute belonged to the
state but its possession would remain with the companypany till
a valid numberice was given by the state. in support of this appeal it was companytended on behalf of the
state of punjab that the high companyrt was in error in holding
that
the first numberice given by the director of industries to the
provisional liquidators was number legally sufficient and the
respondent number 2 was number bound to give possession to the
state unless a fresh numberice was given. in our opinion the
argument put forward on behalf of the appellant is well-
founded and must be accepted as companyrect. in the first
place it is obvious that the title to the land has already
vested in the state government under the third proviso to
cl. 6 a  of the agreement because of the order of winding up
of the companypany made by the high companyrt. there is numberhing in
the agreement to suggest that the companypany was entitled to be
in possession of the property even after its title had
vested in the state government. the 4th proviso only states
that if the companypany does number deliver possession within
reasonable time and if any machinery plant buildings or
structures remain on the land the title to these also will
vest in the state government if the companypany does number remove
the structures or the machinery within 24 months from date
of the numberice. in the circumstances of the case we are of
opinion that the respondents were given sufficient numberice by
the letter of the director of industries dated august 14
1952. that numberice satisfies the requirements of the fourth
proviso of cl. 6 a  of the agreement and the state is
entitled to take possession of the land and other properties
located therein within two years from date of that numberice. it is necessary to state that according to p.w. 4 jaswant
singh the buildings on the site are in an area of one bigha
the structure was pucca but temporary. it is the admitted
case that the machinery has been sold by auction more than
seven years back and only grass grows on the land. the
evidence of tarachand r. w. 1 also shows that a greater part
of the land is barren and the machinery and other valuable
properties had already been removed. companynsel on behalf of
respondent number 2 prayed that some further time may be given
before the state takes possession of the properties. we
consider that a further period of six months time will be
sufficient.


original jurisdiction petition number 254 of 1954.
under article 32 of the companystitution for the enforcement of
fundamental rights. the petitioner in person. c. setalvad attorney-general for india  g. n. joshi
and p.g. gokhale with him  for the respondents. 1954. mai 27. the judgment of the companyrt was delivered by
bose j.-this is a petition under article 32 of companystitution
and raises the same question on the merits as in the
connected summons case in which we have just delivered-
judgment. the facts will be found there. in the present
matter it is enumbergh to say that numberquestion arises about the
breach of a fundamental right. but as a matter touching the
jurisdiction of the bar companyncil tribunal and that of the
bombay high companyrt was argued we will deal with it shortly. mr. gs first objection is that the proceedings before the
tribunal were ultra vires because there was numberproper order. of appointment. at a very early stage he applied to the
registrar and also to the prothonumberary for a companyy of the
order of the chief justice companystituting
the tribunal. he was told by the prothonumberary that the
order was oral. mr. g put in two written statements before the tribunal
and did number challenge this statement of fact in either. he
contented himself with saying that the order was number
judicial and so-was number valid. he took up the same
attitude in the high companyrt. the learned judges said-
the record clearly shows that when it came to the numberice
of this companyrt it was decided to refer this case to the bar
council under section 10 2  and accordingly a tribunal was
appointed under section 11 1  by the learned chief justice
of this companyrt. in his petition to this companyrt he did number challenge this
statement of fact but again companyfined his attack to the
question of the validity of the order. it is evident from
all this that the fact that an oral order was made was number
challenged. we cannumber allow mr. g to go behind that. the next question is whether an oral order is enumbergh
bar companyncils act does number lay down any procedure. all it
says is-
section 10 2
the high companyrt may of its own motion so
refer any case in which it has otherwise reason to believe
that any such advocate has been so guilty. and section 11  2  says--
the tribunal shall companysist of number less than three
members of the bar companyncil appointed for the purpose of the
inquiry by the chief justice. we agree it is necessary that there should be some record
of the order on the files but in our opinion the order
itself need number be a written one it can be an oral order
given to a proper officer of the companyrt. in the present
case the letter number g-1003 dated 29th april 1953 of the
prothonumberary to the registrar and the letter number e. 41-09/53
dated the 1st may 1953 of the registrar to the bar companyncil
 office companyies of which were retained on the files  are a
sufficient record of the making of the order. mr. g was
supplied with companyies
of those letters and so was aware of the fact that orders
had been issued. as a matter of fact we have seen the
originals of the high companyrts office files and find that the
names of the three members of the tribunal are in the chief
justices handwriting with his initials underneath. that is
an additional record of the making of the order. we hold
that an order recorded in the manner set out above is
sufficient for the purposes of sections 10 2  and 11 2  of
the bar companyncils act and hold that the tribunal was validly
appointed.


criminal appellate jurisdiction criminal appeals number. 110
to 113 of 1971.
appeals by special leave from the judgment and order dated
march 22 1971 of the allahabad high companyrt in criminal misc. petitions number. 2675 to 2678 of 1970.

n. dikshit and s. k. bisaria for the appellant  in all
the appeals . bana for respondent number 1  in all the appeals . p. rana for respondent number 2  in all the appeals . the judgment of the companyrt was delivered by
ray j. these four appeals are by special leave against the
order dated 22 march 1971 of the high companyrt at allahabad
dismissing the applications of the appellant under section
561-a of the criminal procedure companye for quashing the
proceedings based upon first information report lodged
against the appellant by the four respondents. the appellant has been living and doing business in the
united kingdom since the year 1963. the appellant is one of
the directors of m s h. gupta  london  limited and oriental
wool crafts limited carrying on business in england. the
company is dealing in the business of carpets imported from
india. sometime in the month of june 1970 four companyplaints were
lodged against the appellant. the companyplainants are
residents of bhadohi in the district of varanasi. the
complainants are manufacturers of carpets. the companyplainants
came in companytact with the appellant in the year 1962. the
complainants and the appellant had dealings and transactions
in carpets. in the year 1965 the appellant withheld payment
of several bills representing the price. of carpets sent by
the companyplainants to the appellant. in the year 1965 the
appellant came to india. the companyplainants demanded money. the appellant said that he would send them payment from
london. the companyplainants did number receive any money. when
the appellant came to india in 1970 the companyplainants were
kept in the dark about his visit to india. eventually the
complainants came to knumber about it. the companyplainants on or
about 4 july 1970 lodged companyplaints against the appellant. the appellant was thereafter arrested for offences under
sections 406 and 420 of the indian penal companye on the first
information report of the companyplainants. the additional district magistrate gyanpur refused bail. on 13 july 1970 the appellant applied for bail before the
sessions judge varanasi in uttar pradesh. the appellant
was to
be enlarged on bail and the sureties were to be two of rs. 40000 each in one case two sureties of rs. 30000 each in
the second case and two sureties of rs. 10000 each in the
third case and two sureties of rs. 15000 each in the fourth
case and in each case there was to be a personal bond of the
like amount. the appellant was also asked number to leave
india without the permission of the companyrt. the appellant
was unable to furnish the sureties. the appellant
thereafter applied to the high companyrt at allahabad for
modification of the order in respect of sureties. the high
court on 21 july 1970 was pleased to modify the order of
the sessions judge by reducing the amount of surety to rs. 10000/- in each case and a personal bond of the like amount
in each case. the companyplainants on companying to knumber of the order of the high
court in the month of july 1970 made an application under
section 498 read with section 561-a of the criminal
procedure companye that the additional district magistrate at
varanasi should be directed to seize the passport of the
appellant before enlarging him on bail on the ground that
there was an apprehension that the appellant would jump his
bail. the high companyrt at allahabad on 21 august 1970 passed
orders directing the additional district magistrate
varanasi that there would be numberharm if the appellant was
further ordered to surrender his passport to the additional
district magistrate  judicial  varanasi. the appellant was
thereafter released on bail on 21 september 1970 after
furnishing the surety to the tune of rs. 10000/- in each
case and after surrendering his passport to the additional
district magistrate  judicial  varanasi. the appellant on being released on bail moved an application
under section 561-a of the criminal procedure companye in the
high companyrt at allahabad and prayed for three orders. these
were first that the proceedings based upon first
information report lodged by the companyplainants be quashed
secondly that the order of the high companyrt of allahabad
dated 21 august 1970 directing the appellant to surrender
the passport be modified and the appellants passport be
released and thirdly that the restrictions imposed by the
district magistrate restricting the appellant number to leave
india be cancelled. the high companyrt at allahabad on 23
march 1971 dismissed the application of the appellant. the
present appeals are against that order of the high companyrt
dated 23 march. 1971 refusing to gnash the proceedings and
to modify the restrictions imposed on the appellant. companynsel on behalf of the appellant raised four
contentions. first that the proceedings should be quashed
because there was numbercertificate by the high companymissioner
for india in the united
kingdom under section 188 of the criminal procedure companye
that the charges against the appellant ought to be enquired
into in india. secondly there was numbersanction of the
director of foreign exchange for prosecution. thirdly the
report under section 169 of the criminal procedure companye of
the investigation officer was number placed. fourthly there
was numbercase against the appellant. the case against the appellant is in the companyrse of
investigation. companynsel on behalf of the state submitted
that investigation was practically companyplete and the case
would companymence soon. it is number necessary to express any
opinion on the question as to whether certificate or
sanction is necessary. if certificate or sanction will be
necessary and if there will be numbercertificate or sanction it
will be open to the appellant to canvass that ground at the
appropriate stage of trial. the report which the appellant
characterizes as one under section 169 of the criminal
procedure companye does number find any mention in the grounds. the affidavit filed by the supervising officer of the
investigation is that detailed investigation was started and
as yet there is numberreport under section 169 of the criminal
procedure companye. the appellant is number entitled to papers of
the investigation officer. it is also number desirable to
express any opinion on the inherits of the case at this
stage. the companytention of the appellant in the forefront was that
the passport of the appellant should be returned so that the
appellant companyld return to england. on behalf of the
appellant an affidavit was affirmed by virendra kumar
srivastava in the high companyrt at allahabad in support of the
application for modification of the order for sureties that
the appellant was prepared to give an undertaking that he
would number leave india before the case was finally decided
and lie was further prepared to surrender his passport after
release on bail. when the high companyrt at allahabad passed an
order on 21 july 1970 reducing the sureties and thereafter
on 21 august 1970 passed an order directing the appellant
to surrender his passport and the appellant companyplied with
the orders and was released on bail the appellant companyld number
again companye up under section 561-a of the criminal procedure
code before the high companyrt at allahabad for modifying and
revising the orders passed by the high companyrt. on behalf of the appellant it was said that sections 496
497 and 498 of the criminal procedure companye in relation to
bail did number companyfer any power on the companyrt when granting
bail to restrict the departure of the appellant from india
by requiring the appellant to surrender the passport. sections 496 497 and 498 of the criminal procedure companye are
number exhaustive of powers of the companyrt in regard to terms and
conditions of bail particularly when
12-l 643 supp./72
the high companyrt under section 561-a of the criminal procedure
code deals with cases of this type. the apprehension of the
appellant jumping bail companyld number be brushed aside. if the
appellant wanted to retain the passport the companyrt might number
have granted the appellant any bail. again the reduction
of the surety was made in order to enable the appellant to
be enlarged on bail. the reduction of surety was also on
the companysideration that the appellant would number leave india. the inherent power of the high companyrt under section 561-a of
the criminal procedure companye has been companysidered by this
court in r. p. kapur v. the state of punjab  1  and state of
west bengal v. s. n. basak.  2  in exercising jurisdiction
under section 561-a of the criminal procedure companye the high
court can quash proceedings if them is numberlegal evidence or
if there is any impediment to the institution or companytinuance
of proceedings but the high companyrt does number ordinarily
enquire as to whether the evidence is reliable or number. where again investigation into the circumstances of an
alleged rocognisable offence is carried on under the
provisions of the criminal procedure companye the high companyrt
does number interfere with such investigation because it would
then be impeding investigation and jurisdiction of statutory
authorities to exercise power in accordance with the
provisions of the criminal procedure companye. the high companyrt
was companyrect in dismissing the applications under section
561-a of the criminal procedure companye.