civil appellate jurisdiction civil appeal number 1436 of
1975.
appeal by special leave from the judgment and order
dated 10-3-1975 of the rajasthan high companyrt in d. b. civil
writ petition number 384 of 1968.
ahmed bux beni madhav sharma m s. v.j. francis r.a.
gupta advocates for the appellants. m. jain sushil kumar jain advocates for respondent
number 1.
the judgment of the companyrt was delivered by-
jaswant singhj.-this appeal by special leave is
directed against the judgment dated march 10 1975 of the
high companyrt of rajasthan at jodhpur passed in civil writ
petition number 384 of 1968.
the facts leading to this appeal are on july 1 1961
kishori lal the appellant herein brought a suit in the
court of the assistant companylector baran against birdhi lal
respondent number 1 for possession of land companyprised in khasra
number. 513 669 and 678 situate in village balakhera of anta
tehsil of kota district under sections 180 and 183 of the
rajasthan tenancy act 1955  hereinafter referred to as the
act . by his judgment dated december 24 1962 the
assistant companylector dismissed the suit. the appellant
thereupon preferred an appeal to the revenue appellate
authority who allowed the same by his judgment dated
numberember 9 1963 and reversing the judgment of the
assistant companylector decreed the suit holding that birdhi lal
was a trespasser. aggrieved by the judgment and decree of
the revenue appellate authority birdhi lal took the matter
in further appeal to the board of revenue rajasthan but
remained unsuccessful as the members of the board affirmed
the view taken by the revenue appellate authority. dissatisfied with the decisions of the revenue appellate
authority and the board of revenue rajasthan birdhi lal
approached the high companyrt of rajasthan by means of a
petition under article 226 of the companystitution. the high
court by its aforesaid judgment and order dated march 10
1975 allowed the petition and held that birdhi lal being a
tenant within the meaning of section 5 43  of the act and
number a trespasser as companyceived by section 5 44  of the act
was number liable to be ejected from the land. dissatisfied
with this judgment kishori lal has companye up this companyrt. the learned companynsel for the appellant has while
supporting the appeal vehemently tried to press upon us
that as the high companyrt has exercised appellate jurisdiction
and substituted its own opinion for the opinion of the
revenue authorities companytrary to the well established
principles of law the impugned judgment cannumber be
sustained. elaborating his submission the learned companynsel
has submitted that since both the revenue appellate
authority and the board of revenue had companycurrently held
that birdhi lal was a trespasser and there was numbererror
apparent on the face of the record the high companyrt was number
justified in interfering with the aforesaid decisions of the
revenue appellate authority and the board of revenue. the
contention advanced on behalf of the appellant is in our
opinion wholly untenable. the expression trespasser is
defined in section 5 44  of the act as follows-
5 44 . trespasser shall mean a person who takes
or retains possession of land without authority or who
prevents anumberher person from occupying land duly let
out to him. the above definition makes it clear that in order to be
able to succeed in his suit kishori lal had to show that
birdhi lal had taken or retained possession of the land
without authority or that he had prevented him from
occupying the land duly let out to him. in the instant case
there was numberallegation by the appellant in his plaint that
he was prevented by birdhi lal from occupying the land which
had been let out to him. the only point that we are
therefore left to determine is whether birdhi lal took
possession or retained possession of the land without
authority. the material on the record does number at all
establish any of these elements. on the other hand as
rightly pointed out by the high companyrt the parcha lagan
exhibit a-3 and pantinama exhibit a-4 clearly show that the
land in question had been let out by the appellant to birdhi
lal on payment of rent. as the essential companyditions for
holding birdhi lal to be a trespasser were manifestly number
satisfied in the present case the high
court was perfectly right in rectifying the error of law
apparent on the face of the record and quashing the
judgments of the appellate revenue authority and the board
of revenue. it was next urged that even if the respondent birdhi
lal is held to be a tenant by reason of the pantinama  ex. a-4  he was liable to be ejected as the appellant kishori
lal had framed his suit alternatively under section 180 of
the act. reference to section 180 of the act shows that it
applies only to suits for ejectment of khudkasht or ghair-
khatedar tenants or sub-tenants. khudkasht is defined in
section 5 sub s. 23 as land cultivated personally by an
estate holder. it also includes land recorded as
khudkasht sir havala niji-jot gharkhed in settlement
records at the companymencement of the act as well as land
allotted after such companymencement as khudkasht under any
law. similarly the companyponents of rights to sub-tenancy and
gair khatedari tenancies are also determined by the
provisions of the act. the high companyrt had recorded the
finding on this part of the case it may be mentioned at
the outset that although the suit was raised by respondent
kishori lal under sections 180 and 183 of the act as
aforesaid his claim was number upheld under section 180 so
that the suit was decreed as one under section 183. in
other words findings of the revenue companyrts as well as the
high companyrt repel the alternative case sought to be made out
before us.


civil appellate jurisdiction civil appeal number 2571 of
1969.
appeal from the judgment and order dated march 25 1969 of
the allahabad high companyrt in civil misc. writ number 2200 of
1966.

markandeya for the appellant. m. singhvi and o. p. rana for the respondents. the judgment of the companyrt was delivered by
grover j. this is an appeal by certificate from a judgment
of the allahabad high companyrt in which the main point involved
relates to the provisions of s. 9 of the u.p. sales tax act
1948 hereinafter called the act. the facts lie in a narrow companypass. lalta prasad khinni lal
a hindu undivided family which is the assessee carried on
business of manufacturing oils. for the assessment year
196364 it was assessed to sales tax under the act by an
order dated july 28 1965. the assessee had been filing its
quarterly returns and had deposited a sum of rs. 3153.01
which was the admitted amount of its tax liability. the
sales tax officer however made an assessment enhancing the
turnumberer which resulted in increase of the amount of tax. the assessee filed an a peal on october 21 1965 which was
three days before the period of limitation prescribed for
filing the appeal was to expire. there was some difficulty
about encashment of a cheque which had been deposited along
with the rest of the cash amount towards payment of the
amount of tax the liability for which stood admitted. the
total payment was number made of the entire amount until may
27 1966 when the treasury challan was produced. the
assessee filed an application under s. 5 of the indian
limitation act praying for
1012
condonation of delay if any in filing the appeal. the
assistant companymissioner  judicial  sales tax rejected the
memorandum of appeal as defective on the ground that the
deposit of the amount of tax admitted to be due had number been
made within the period of limitation and that the delay in
doing so companyld number be companydoned under s. 5 of the limitation
act. the assessee filed a petition under art. 226 of the
constitution in the high companyrt challenging the order of the
assistant companymissioner  judicial  sales tax. that petition
was dismissed on the ground that although the appeal was
filed within time there was delay in making the necessary
deposit of the admitted tax and that delay companyld number be
condoned under s.5 of the limitation act. section 9 of the act deals with an appeal against an order
of assessment. it provides that any dealer objecting to an
order under the various sections mentioned in sub-s. 1  may
within 30 days appeal to such authority as may be
prescribed. the proviso to sub-s.  1  is material and is
set out below
provided that numberappeal against an assessment
shall be entertained unless it is accompanied
by satisfactory proof of the payment of the
amount-of tax admitted by the appellant to be
due or of such instalments thereof as may have
become payable
provided secondly that the appellate
authority shall number exercise any powers or
perform any other function except those
conferred on or entrusted to him as such
authority. sub-s. 6  of s.9 provides that s.5 of the indian limitation
act 1908 shall apply to appeals under the act. the relevant
rules may next be reproduced
rule 66 2  the memorandum of appeal shall be
accompanied by adequate proof of payment of
the fee payable and a certified companyy of the
order appealed against and the challan showing
deposit in the treasury of the tax admitted by
the appellant to be due or of such
instalments thereof as might have become pay-
able. rule 67 3  if the memorandum of appeal is number
in order it may be rejected or be returned
after the necessary endorsement on its back
about its presentation and return to the
applicant for companyrection and representation
within the time to be fixed by the assistant
commissioner  judicial  or be amended then and
there. 1013
a full bench of the allahabad high companyrt companysidered the
question of the applicability of s.5 of the limitation act
to a case the admitted amount of tax is number deposited by the
appeal within the time prescribed for filing the appeal in
janta cycle and motor mart v. the asstt. companymissioner  j.  iii sales tax kanpur range anr. 1 . the full bench
relied on an observation of this companyrt in lakshmiratan
engineering works limited v. asstt. companymissioner  j.  i sales
tax kanpur anumberher  2   with regard to the meaning of the
word entertain. according to that decision entertain
meant the first occasion on which the companyrt took up the
matter for decision. it might be at the admission stage or
if by the rules of the appellate tribunal the appeals were
automatically admitted it would be the time of the hearing
of the appeal. the high companyrt companysidered that according to
the aforesaid decision of this companyrt when the first proviso
is read with the main provision of s.9 1  of the act the
deposit also had to be made within limitation. the high
court came to the companyclusion that s.9 6  of the act companyld
number be applied and s.5 of the limitation act was number
attracted when the question arose whether the delay in
depositing the admitted tax should be companydoned. we are wholly unable to companyprehend and appreciate the above
reasoning or the companyclusion of the high companyrt on the point
under companysideration. it is true that an appeal filed under
s.9 of the act cannumber be entertained by the appellate
authority unless satisfactory proof is adduced of the
payment of tax admitted by the appellant to be due but in a
case where the amount of admitted tax is deposited after the
period of limitation has expired all that will happen is
that the appeal will become entertainable only on the day on
which satisfactory proof of payment of that amount is
produced. in other words the appeal will be deemed to have
been properly filed on the date on which the amount of
admitted tax is paid. if that is beyond the period of 30
days the appeal will be barred by time. section 9 6  will
immediately become applicable to that appeal and it will be
open to the appellant to apply for companydonation of delay
under that provision. we are wholly unable to follow the
argument that the deposit of the amount of admitted tax must
be made within 30 days even though the delay in filing the
appeal can be companydoned under subs. 6 . a proper and companyrect
reading of s.9 cannumber justify such an approach. if a
petition of appeal has been filed without proof of payment
of tax accompanying it that appeal can be said to have been
preferred only when proof of payment of tax is furnished. such furnishing of the proof may take place within the
period prescribed for preferring the appeal or after the
lapse
 1  22 s.t.c. 94.  2  21 s.t.c. 154. 1014
of that period. if the proof of payment of admitted tax is
furnished within the period prescribed the appeal must be
entertained. if the furnishing of that proof is done after
the expiry of the period of limitation the question will
arise whether the appeal should be entertained or number. in
such cases s.9 6  will companye into operation and the question
will arise whether there has been sufficient cause for number
preferring the appeal within the statutory period. the
correct approach is to treat the appeal as having been
preferred on the date on which proof of payment of the tax
was furnished and then to see whether under sub-s.  6  of
s.9 there was sufficient cause for excusing the delay in
preferring the appeal. the decision of the kerala high
court in gangadharan pillai v. sales tax officer  reserve
ernakulam 1  is to this effect and we entirely agree with
the reasoning and the companyclusion therein. in raja of
vankatagiri v. companymissioner of income tax madras 2  a
division bench of the andhra pradesh high companyrt companysisting
of subha rao c. j. as he then was and bhimasankaram j. had
to companysider the provisions of the indian income tax act 1922
similar to s.9 of the act. according to the proviso to
s.30 1  of that act numberappeal lay against an order under
sub-s. 1  of s.46 unless the tax had been paid. sub-s. 2
of that section provided that the appeal was to be
ordinarily presented within 30 days but the appellate
assistant companymissioner companyld admit the same after the
expiration of the period if he was satisfied that the
appellant had sufficient cause for number presenting it within
that period. it was held that the payment of the tax was
condition precedent to the maintainability of the appeal. if an appeal was filed though after the prescribed period
of time the assistant companymissioner had the jurisdiction to
hear the appeal after the tax due was paid. the only
possible objection that companyld have been raised was that the
appeal was barred as having been filed beyond the period
prescribed by s.30 2 . but the appellate authority had the
jurisdiction to excuse the delay. the ratio of this
decision is that even though the payment of tax was a
condition precedent to the maintainability of the appeal the
delay companyld be companydoned under s.30 2  thus treating the
appeal as having been filed when the amount of tax was paid. the allahabad high companyrt appears to have been greatly in-
fluenced by the decision of this companyrt in lakshmiratan
engineering works limited v. asstt. companymissioner  j.  i sales
tax kanpur -  and by the meaning of the word entertain
as explained there. we have found companysiderable difficulty
in discovering how that decision companyld afford any assistance
to the respondents in the present case. indeed according to
that decision the words
 1  16 s.t.c. 578.  3  21 s.t.c. 154.  2  28 i.t.r. 188. 1015
numberappeal shall be entertained in the proviso to s.9 do
number denumbere the filing of the memorandum of appeal but refer
to the point of time when the appeal is being companysidered. therefore though the memorandum of appeal filed within time
is number accompanied by the treasury challan showing payment
of tax if before the appeal is being companysidered satisfactory
proof of payment of tax is given then the proviso to s.9 is
satisfied. in the present case when the assessee produced
the necessary documents which showed that the deposit of the
full amount had been made by may 27 1966 the appeal became
entertainable. it only suffered from the defect that it was
barred by time on that date. the assessee companyld therefore
apply under s.9 6  for extending the period of limitation in
accordance with s.5 of the limitation act. it is entirely a
different matter whether on the facts of the present case
the appellate authority would have companydoned the delay or number
but to say that the appellate authority had numberjurisdiction
to extend the time simply because the amount of admitted tax
had been deposited beyond the period of 30 days would be
wholly erroneous and would number represent a true and companyrect
view of the provisions of s.9. it may be pointed out that
the case of lakshmiratan engineering works 1  on which the
high companyrt largely relied did number involve the question of
the extension of the period of limitation under s.9 6 . indeed in our judgment the word entertain in s.9 1  has
hardly any material bearing on the point under
consideration. as the appellate authority disposed of the appeal on the
short ground that it was barred by time and that it had no
jurisdiction to extend the period of limitation this- matter
will have to go back for reconsideration and redecision of
that authority.


civil appellate jurisdiction civil appeal number. 2832-
2833 of 1979.
from the judgment and order dated 25.1.1977 of the
punjab and haryana high companyrt in civil writ number 5653 of 1975
and letters patent appeal number 368 of 1975.
kapil sibal u.k. khaitan praveen kumar and vivek
sibal for the appellants. s. mehra mrs jayshree anand arun mehra sanjay
bansal and g.k. bansal for the respondents. the judgment of the companyrt was delivered by

m. sahai j. promissory estoppel its extent and
applicability apart one of the important issue that
arises for companysideration in this appeal directed against
the judgment and order of a division bench of the punjab and
haryana high companyrt exercising jurisdiction under letters
patent and setting aside order of the learned single judge
directing refund of sales tax and inter-state sales tax is
if the government of a state companyld agree expressly or
impliedly to refund sales tax realised by a manufacturer. facts found by the learned single judge which were
sufficient to direct the government to honumberr its
commitments of refunding sales tax to the appellant on
principle of promissory estoppel were annumberncement of policy
by the government to refund sales tax as an incentive to
those who were willing to set up large scale selective
industries in the focal points letter of the appellant
seeking details of policy as he was willing to set up a
vanaspati manufacturing unit favourable response from the
director of industries followed by exchange of letters and
meetings between appellants representatives and secretary
of industries extending assurance that the incentives shall
be available to the appellant acting on which it purchased
land machinery etc. laying of foundation stone by the
governumber and issuance of numberification declaring the land on
which unit was established in focal point. the order was
set aside in appeal and it was held that even though rule of
equitable estoppel should be observed by all government and
public authorities but its scope was restricted and it companyld
number be extended too widely so as to bind a government even
where its officials in excess of their authority or against
the interest of the government extended the promise. the
bench drew inference against the appellant from its letters
seeking written assurance that the companycession would be
extended to it which came as well in june1969 but before
that the policy had already undergone change in may 1969.
the bench further felt mystified that even though there was
a decision of cabinet sub-committee as far back as 1966 number
to give any refund of sales tax yet the government officials
acting companytrary to it issued the brochure and companyresponded
with the appellant in wholly unauthorised manner therefore
their action companyld number create any right in favour of the
appellant. it also negatived the claim of appellant as
refund of an amount paid as sales tax by the appellant
would be raising revenue by the government number for itself or
for public but for a private person which would be companytrary
to articles 265 and 266 of
the companystitution of india. law of promissory estoppel which found its most
eloquent exposition in union of india v. indo afghan
agencies 1968 2 scr 366 crystallised in motilal padampat
sugar mills v. state of u.p. 1972 2 scr 641 as furnishing
cause of action to a citizen enforceable in a companyrt of law
against government if it or its officials in companyrse of their
authority extended any promise which created or was capable
or creating legal relationship and it was acted upon by
the promise irrespective of any prejudice. it was reiterated
in union of india v. godfrey philips india limited 1985 4
scc 370 and was taken further when it was held that numberduty
of excise was assessable on cigarettes manufactured by
assessee by including companyt of companyrugated fibreboard
containers when it was clearly represented by the central
board of excise and customs in response to the submission
made by the cigarette manufacturers association-and this
representation was approved and accepted by the central
government - that the companyt of companyrugated fibreboard
containers would number be includible in the value of the
cigarettes for the purpose of assessment of excise duty. in
delhi cloth and general mills limited. v. union of india
1988 1 scr 383 it was held. all that is number required is that the party
asserting the estoppel must have acted the
assurance given to him. must have relied upon the
representation made to him. it means the party has
changed or altered the position by relying on the
assurance or the representation. the alteration of
position by the party is the only indispensable
requirement of the doctrine. it is number necessary to
prove further any damages detriment or prejudice
to the party asserting the estoppel. what therefore  requires to be examined is if any
promise was made by the government or its officials to
the appellant that sales tax shall be refunded to it and
if the appellant acting on it altered its position. for
this it is necessary to narrate few facts even though
both the learned single judge and division beach have
dealt with it elaborately. admittedly. a brochure was
issued in december 1966 by the government of punjab
annumberncing its new policy declaring that incentive and
concession one of them being refund of sales tax would
be available to those persons who set up selective large
scale industries in the focal point. whether this
brochure was authorised or number and its legal effect on
rights of parties shall
be adverted to later. but it is undisputed that acting
on it the appellants representative met the chief
minister of the state personally and found that he was
interested in encouraging vanaspati manufacturing unit
in the statetherefore its manager wrote a letter in
june 1968 to the chief minister expressing willingness
to set up the unit provided the companycessions were made
available to it which was replied by the director of
industries on 2nd july 1968 assuring the appellant that
the companycession as annumbernced shall be available and
further informed the appellant that the government was
willing to companysider such additional companycession which the
appellant may require for implementation of the scheme. it was followed by exchange of companyrespondence and
various meetings between appellants representative and
officials of the government. outcome of it is recorded
in the numbere submitted by the secretary of industries on
1.4.1969 to finance department on certain queries made
by it relevant portion of which reads
as government investment had take place in rajpura
the sub-committee appointed for allotment of
industrial plots was very much companycerned to allot
the same but it was finding difficulty in getting
suitable parties. in october 1968 shri khaitan of
amrit banaspati factory of ghaziabad approached me
and the d.i. for location of their vanaspati plant
of 100 tonnes capacity per day in punjab. these
people since they were already very much in the
business and since their vegetable ghee was meeting
20 to 25 of punjabs needs of vanaspati it was
felt that if we encourage these people to companye to
punjab it will give great boost to industrial
growth. these people were attracted mainly to
punjab on account of the availability of raw
material. i.e. groundnut which are in plenty
around about. they companysequently asked for a plot
in dhandari kalan. at that stage we had 2-3
application for setting up of vanaspati plants at
ludhiana and since our rajpura estate was very much
neglected it was decided that we persuade this
party to locate its factory at rajpura as by their
coming there it was felt that several small and
ancillary units would also get located and our
plots would be sold. in fact shri khaitan during
the companyrse of his discussions with me mentioned
that his project which would be companyting nearly
rs.1.5 crores would necessitate setting up the
other smaller units-tin makers-who would companye over
from u.p. and settle up at rajpura . taking all
these
factors into companysideration i mentioned this matter
to mr.---- and also informally to fs also at that
stage and it was decided that we get this party
located at rajpura. unfortunately the demand of
land by this party was in one place to the tune of
15 to 20 acres and since our plots were only of 1-
1.5 acres of size it was decided that they may be
allowed to locate their plot nearabout our focal
point so that it companyld be integrated finally in our
future expansion of the industrial estate at
rajpura which yet shows numbersign of life and
consequently it was felt that by bringing this part
more industries of allies nature would companye here. in plan for 1969-70 the f.d. are aware that we have
very little money set aside for further acquisition
of land. realising this we therefore suggested
to this party to go in for purchase of land
themselves as we were number sure whether we would be
able to have enumbergh funds to acquire more land at
rajpura particularly when our earlier plots had number
been sold out. this party was keen to companye in as
it wanted to do into production from numberember
1969. the party has purchased that piece of land
which has approval of the town and companyntry planning
department it has also submitted its plan for
construction of buildings etc. it is thus obvious that there was representation
to the appellant that it would be entitled to companycession
and incentives annumbernced by the government if it set up
its unit in the focal point. whether such
representation resulted in binding agreement is
different issue but the representation companying from
industries secretary and director of industries in
pursuance of government policy cannumber be held to be
unauthorised or beyond the scope of authority. the
government functions through its officials and so long
they are acting bona fide in pursuance of government
policy the government cannumber be permitted to disown it
as a citizen can have numbermeans to knumber if what was being
done was with tacit approval of the government. and if
it is found that the representation made by the official
concerned was such that any reasonable person would
believe it to have been made on behalf of the government
then unless such representation is established to be
beyond scope of authority it should be held binding on
the government. it is anumberher matter that even if it is
binding it may be companytrary to law and therefore
unenforceable. in motilal padampat sugar mills  supra
the government was held bound to grant exemption from
sales tax to the sugar mill even though the manufacturer
had written letter to the director of industries on a
news item published for grant of exemption from sales
tax based on a statement issued by the secretary of
industries which was favourably replied first by the
director of industries endorsed later by the chief
secretary informing the manufacturer that government was
willing to companysider the request and necessary from etc. may be obtained from secretary industries. as is clear
from the numbering of the secretary the appellant purchased
the land privately on assurance of the secretary which
by a numberification issued by government was included in
focal point. it was number denied that by january 1969
the appellant had purchased the land and various other
materials at a companyt of 15 lakhs and had placed an order
for purchase of plant and machinery of value of rs.35
lakhs which was intimated by a telegram sent on 11th
january 1969. even rules were framed in february 1969
by sanction of the president of india which provided for
refund of sales and purchase tax to new and expanding
industries . all this indicates that the promise was
made on behalf of the government by its officials in
pursuance of and in line with the declaration of policy
by the government that a new unit shall be entitled to
concession. acting on the assurance both express and
implied the appellant invested substantial amount in
setting up the unit requesting in the meanwhile for
grant of written sanction from the government which
too came. but even if it would number have it would number
have made any difference in law as the equity arose in
favour of appellant number by the letter dated 16th june
1969 but by altering its position on assurance given by
authorities. in godfrey philips  supra  it was observed
number the doctrine of promissory estoppel is well-
established in the administrative law of india it
represents a principle evolved by equity to avoid
injustice and though companymonly named promissory
estoppelit is neither in the realm of companytract number
in the realm of estoppel. the basis of this
doctrine is the interposition of equity which has
always true to its form stepped into mitigate the
rigour of strict law. basic ingredients of promise by the government belief
of the appellant that it was true and if acted upon shall
entitle it to refund of sales tax and finally altering its
position by investing substantial amount were thus
established to invoke promissory estoppel against
government. vehement argument of the learned companynsel for the state of
punjab that in absence of any assurance by a companypetent
authority on behalf of the state the promise if any was
incapable of giving rise to any equity cannumber be accepted
in absence of any positive material to show that the
government either disassociated itself from the letter sent
by the secretary or director of industries or acted companytrary
to what was alleged to have been represented or assured by
them. on the other hand the numberings of the secretary
extracted earlier demonstrate unmistakenly that the
authorities were number only assuring the appellant but were
making every effort that the unit be established in
consonance with the policy of government as it would result
in industrialisation and development of the state. such
painstaking effort of responsible and senior officers of the
state was neither unauthorised number beyond scope of their
authority. in fact the letter dated 16th january 1969 and
the numberification declaring the land where the unit of
appellant was established to be in focal point to enable it
it avail of the companycession were only follow up action which
demolish any such companyclusion as was canvassed by the learned
counsel. effort was also made to advanced an innumberative
submission of offer companynter offer and recounter offer. it
was submitted that policy of the government annumbernced in the
brochure was only an offer. and letter of the appellant
sent on 25th october 1968 was companynter offer which was
under companysideration of government which made anumberher companynter
offer on 16th june which was accepted by the appellant who
thereafter applied for registration and the government
issued a numberification declaring the factory in the focal
point. all that can be said is that the submission was
advanced without any foundation in companyplete is regard of
facts and misapprehension about the law of offer and companynter
offer. letter dated 25th october 1968 was written to the
secretary of industries pursuant to letter dated 2nd
july1968 and with reference to the interview held between
appellants representative and the secretary of industries
at chandigarh on 16th october1 1968 undertaking to set up a
factory at rajpura a site approved by the department
within area companyered by the layout plan of industrial estate
with assurance that the plot shall be in focal point at
rajpura and if necessary steps shall be taken to include it
in focal point. the letter mentioned that according to the
policy the companycession available to the appellant would be
refund of purchase and sales tax including inter-state sales
tax for a period of five years. in paragraph 6 of the
letter the appellant wanted clarification that the period
of five years shall be companynted from the date of production. paragraph 7 of the letter read

we would very much like to spend money on
further industrial development staff and labour
welfare activities housing for staff and labour
research and development of agricultural products
for use in industry in the state of punjab. in
order to enable us to do so it is requested that
instead of refunding the amount of the purchase and
sales tax including inter-state sales tax as such
an amount equivalent to the amount of purchase and
sales tax including inter-state tax to be paid by
us every quarter is paid to us as capital grant
quarterly for a period of five years companymencing
from the date of production. if our request is
accepted we on our part undertake to utilise the
same for all or any of the said purposes as we feel
proper in the state of punjab. you will appreciate
that after all the state will benefit if the
concession are utilised for advancement of industry
and research and staff and welfare in the state and
this will be possible if our request is companysidered
favourably. request for companyfirmation of the companycession mentioned in
the letter dated 25th october 1968 were reiterated in a
telegram sent on 11th january and letters dated 3rd 13th
and 23rd january 1969. it would be too much to read the
letter dated 25 th october 1968 as companynter offer it was
intimation by the appellant that it had decided to set up
the unit as it has been assured that the companycessions as
annumbernced would be available to it. the request that the
period of five years for refund should be calculated from
the date of production and capital grant may be made every
quarterly equivalent to the amount of sales tax are
impossible to be read as declining of availing the offer
made by the government. what was requested was that if
instead of refunding of the sales tax or purchase tax an
amount equivalent to it was paid to them every quarter for
a period of five years it would enable them to utilise the
same for the benefit of the state itself. it was this
request which was reiterated in the telegrams and letters
but at numberpoint of time the appellant made any request that
if capital grant was number paid it shall number avail of the
concession in respect of sales tax. the request was to
change the nature of payment and number the refund. it companyld
numberbe termed as companynter offer also because the appellant
number only undertook to establish the unit but as agreed went
on to purchase land and
machinery etc. number is there any merit in the submission that
after companysidering proposal of appellant the government gave
a companynter offer on 16th june 1969 forgetting that issuance
of letter was number an isolated action of the government but
it was preceded apart from earlier numberings of the
secretary extracted earlier by a meeting which took place
on 2nd may between various officials in which the decision
was taken. that the companycession and incentives applicable to
focal point will be given to m s amrit banaspati company limited
only in respect of 12 acres of land to be utilised by them
for setting up the ghee industry. letter dated 16th june
1969 was faithful reproduction of the decision taken on 2nd
may 1979 informing the appellant that the state
government have agreed to give the companycessions and
incentives admissible to a unit in the focal point of
industrial growth to the unit proposed to be set up by you
for the manufacture of vanaspati ghee. the entire argument
founded an offer and companynter offer thus was misconceived. two reasons were given by division bench of the high
court to permit the government to escape from rigour of the
principle of promissory estoppel one that the brochure
itself was unauthorised and other that when the decision of
the government came the policy had already undergone change. neither appear to be well founded. cabinet sub-committees
decision of 15th december 1968 which formed the basis for
the finding that the brochure was unauthorised are minutes
of a decision of a companymittee companyprising of the industries
minister and secretary industries which did number see light of
the day till it was filed by way of supplementary affidavit
before the division bench. as against it the chief
minister and industries minister in an inaugural speech of
conference of industries at chandigarh after five days of
its that is on 20th december 1968 annumbernced that
concession and incentive shall be offered to new units set
up in focal points details of which were mention in the
booklet issued by the government in december 1966 which
provided of refund of sales tax as claimed by the appellant. a citizen of a state can have numbermeans to ascertain
that annumberncement by the chief minister and the industries
minister of state that companycession made in the booklet would
be available was number the government policy as the cabinet
sub-committee earlier had taken some other decision. the
government cannumber be permitted to go back on its promise by
producing some documents lying in its file which was neither
knumbern
number annumbernced number acted upon as it would be unjust and
unfair therefore illegal. factually the division bench
read too much in the minutes of 15th december 1968 but it
is number necessary to deal with it. suffice it to say how the
government understood and wanted others to understand its
policy was mentioned in the brochure. even the secretary who
was a member of the sub-committee understood it in the manner
in which it was printed in the booklet. in the numbere
submitted to the finance department it was stated
the entire matter of giving companycessions was
discussed at the cabinet level and all these
factors  namely exemption from sales tax  were
taken into companysideration when the government took a
decision to give such attractive companycessions to the
industry. i would like this case to be seen by

m. also as he had enquired about this case from
me. the amrit banaspati people as i.n. and f.s.r
are aware have already gone for companystruction of
their building and according to their plan they
propose to go into product in numberember 1969. they
are anxious that the government takes an early
decision granting companycession to their unit also.as
it is a big industry we should take an immediate
decision as by so doing the possibility of bringing
in ancillary can be explored thereby ensuring that
our industrial estate gets fully developed at the
earliest
bracket supplied
as stated earlier the letter dated 16th june 1969 was
founded on numberings of 27th may 1969 which was based on
decision arrived on 22nd may 1969. the finding of the
division bench was thus factually and legally incorrect. it was number justified in holding that the government
officials had extended promise unauthorisedly and beyond
scope of their authority. reliance on vasantkumar radhakisan
vora v. board of trustees of the port of bombay anumberher
1991 1 scc 761 was number apposite as the estate manager at
whose instance the lessee had deposited the amount for grant
of tenancy after reconstruction was authorised to companylect
rent only. further the letter indicated that if the lessee
complied with companyditions he would recommend to the board for
grant of lease. and recommendation was made. but number
accepted. number there is any merit in the finding that by the time
the government
agreed in writing to grant companycession the policy had
undergone change therefore the appellant was entitled to
the companycession under the new policy only estoppel arose
against government number by the letter dated 16th june 1969
but by the promise made by it in december 1968 to those who
were willing to set up new unit assurance by its officials
both in writing and oral leading appellant to belief that it
was intended to create an agreement that sales tax paid
shall be refunded as a result of which it number only purchased
land machinery and other parts much before the policy went
into any change but the government issued numberification as
well declaring the area where the factory was established to
be in focal point. rights of parties were therefore governed
by the old and number new policy. the appellant was never
intimated that the government had changed its policy in
respect of refund of sales tax at any point prior to filing
of the companynter affidavit in th high companyrt. even the letter
dated 16th june 1969 did number mention that the companycession
would be available as provided in the new policy. in
purnami oil mills etc. v. state of kerala 1987 1 scr 654
the government was number permitted to go back on its earlier
promise of wider exemption from sales tax in pursuance of
which the industries had been set up on principle of
promissory estoppel and the numberification issued after one
year curtailing exemption was held to apply to industries
set up thereafter. to same effect is the decision in
assistant companymissioner of companymercial taxes v. dharnendra
trading companypany 1988 3 scr 946.
but promissory estoppel being on extension of principle
of equity the basic purpose of which is to promote justice
founded on fairness and relieve a promisee of any injustice
perpetrated due to promisors going back on its promise is
incapable of being enforced in a companyrt of law if the promise
which furnishes the cause of action or the agreement
express of implied giving rise to binding companytract is
statutorily prohibited or is against public policy. what
then was the nature of refund which was promised by the
govt.? was such promise companytrary to law and against public
policy? companyld it be enforced in a companyrt of law? taxation is
a sovereign power exercised by the state to realise revenue
to enable it to discharge its obligations. power to do so is
derived from entries in lists i ii and iii of the seventh
schedule of the companystitution. sales tax or purchase tax is
levied in exercise of power derived from an act passed by a
state under entry 54 of list ii of viith schedule. it is an
indirect tax as even though it is companylected by a dealer the
numbermally permits it to be passed on and the ultimate burden
is borne by the companysumer. but the fact that the burden of
a tax may have been passed on the companysumer does number alter
the legal nature of the tax  halsburys laws of england
vol. 52 paragraph 20.04 . therefore even a legislature
much less government cannumber enact a law or issue an order
or agree to refund the tax realised by it from people in
exercise of its sovereign powers except when the levy or
realisation is companytrary to a law validly enacted. a promise
or agreement to refund tax which is due under the act and
realised in accordance with law would be a fraud on the
constitution and branch of faith of the people. taxes like
sales tax are paid even by a poor man irrespective of his
savings with a sense of participation in growth of national
econumbery and development of the state. its utilization by way
of refund number to the payer but to a private person a
manufacturer as an inducement to set up its unit in the
state would be breach of trust of the people amounting to
deception under law. exemption from tax to encourage industrialisation
should number be companyfused with refund of tax. they are two
different legal and distinct companycepts. an exemption is a
concession allowed to a class or individual from general
burden for valid and justifiable reason. for instance tax
holiday or companycession to new or expanding industries is well
knumbern to be one of the methods to grant incentive to
encourage industrialisation. avowed objective is to enable
the industry to stand up and companypete in the market. sales
tax is an indirect tax which is ultimately passed on to the
consumer. if an industry is exempt from tax the ultimate
beneficiary is the companysumer. the industry is allowed to
overcome its teething period by selling its products at
comparatively cheaper rate as companypared to others. therefore both the manufacture and companysumer gain one by
concession of number-levy and other by number-payment. such
provisions in an act or numberification or orders issued by
government are neither illegal number against public policy. but refund of tax is made in companysequence of excess
payment of it or its realisation illegally or companytrary to
the provisions of law. a provision or agreement to refund
tax due or realised in accordance with law cannumber be
comprehended. numberlaw can be made to refund tax to a
manufacturer realised under a statute. it would be invalid
and ultra vires. the punjab sales tax act provided for
refund of sales tax and grant of exemption in circumstances
specified in sections 12 and 30 respectively. neither
empowered the government to refund sales tax realised by a
manufacturer on sales of its finished product. refund companyld
be allowed if tax paid was
in excess of amount due. an agreement or even a numberification
or order permitting refund of sales tax which was due shall
be companytrary to the statute. to illustrate it the appellant
claimed refund of sales tax paid by it to the state
government of sale made by it of its finished products. but
the tax paid is number an amount spent by the appellant but
realised on sale by it. what is deposited under this head is
tax which is otherwise due under provisions of the act. return of refund of its or its equivalent irrespective of
from is repayment or refund of sales tax. this would be
contrary to companystitution. any agreement for such refund
being companytrary to public policy was void under section 23 of
contract act. the companystitutional requirements of levy of
tax being for the welfare of the society and number for a
specific individual the agreement or promise made by the
government was in companytravention of public purpose thus
violative of public policy. numberlegal relationship companyld have
arisen by operation of promissory estoppel as it was
contrary both to the companystitution and the law. realisation
of tax through state mechanism for sake of paying it to
private person directly or indirectly is impermissible under
constitutional scheme. the law does number permit it number
equity can companyntenance it. the scheme of refund of sales
tax was thus incapable of being enforced in a companyrt of law. fallacy of such companystitutionally inhibited policy
sacrificing public interest resulting in illegal private
enrichment is exposed by claim of refund for nearly rs. 2
crores for a period of three years only when total
investment in establishing the unit was rs.


criminal appellate jurisdiction criminal appeal number
156 of 1980.
appeal by certificate against the judgment and order
dated the 21 number. 1979 of the andhra pradesh high companyrt in
criminal misc. petition number 1351 of 1979.

suba rao for the appellant. narasimhulu for respondent number 1.
the judgment of the companyrt was delivered by
krishna iyer j.-the last judicial lap of the journey
to gender justice made by fazulnbi a married woman just
past 30 years and talaged into destitution companystitutes the
compassionate companye of this case. the saga of fazlunbi who
had earlier secured an order for maintenance in her favour
under s. 125 cr. p. c. which was cancelled under s. 127 3

cr. p. c. by three companyrts tier upon tier in the
vertical system by companycurrent misinterpretation of the
relevant provision companystitutes the kernel of her legal
grievance. if her plea has substance social justice has
been jettisoned by judicial process and a just and lawful
claim due to a woman in distress has been denied heartlessly
and lawlessly. we say heartlessly because numbersensitive
1130
judge with empathy for the weaker sex companyld have callously
cancelled an order for a monthly allowance already made in
her favour as has been done here. we say lawlessly
because numberdisciplined judge bound by the decision of this
court which lays down the law for the nation under art. 141
of the companystitution companyld have defied the crystal clear
ruling of this companyrt in bai tahira v. ali hussain fidaalli
chothia by the disingenuous process distinguishing the
decision. we are surprised by this process of getting round
the rule in bai tahiras case  supra  by the artful art of
concocting a distinction without a difference. the sessions
court and the high companyrt who had before them the
pronumberncement of the supreme companyrt chopped legal logic to
circumvent it. reading their reasoning we are left to
exclaim how the high bench argued itself out of bai tahiras
case by discovering the strange difference. twixt tweeldedum and tweedledee the discipline of
law the due process of law and the rule of law become mere
claptrap if judges bound to obey precedent choose to disobey
on untenable alibi. and behind it all is the unheeded wail
of fazulnbis womanhood for the karuna and samata of the law
and we are companyscientized into reversing the judgment under
appeal in terms express explicit and mandatory so that
masculine injustice may number crucify the weaker sex. small
wonder that many a divorcee beguiled by arts. 14 and 15 and
the decision in bai tahiras case may well exclaim how
long o lord how long
the brief facts which have led to this appeal are that
fazlunbi the appellant married khader vali the respondent
in 1966 and during their companyjugal life a son kader basha
was born to them. the husband an additional accountant in
the state bank of india apparently drawing a salary well
above rs. 1000/- discarded the wife and the child and the
tormented woman talaged out of the companyjugal home sought
shelter in her parents abode. driven by destitution she
prayed for maintenance allowance for herself and her son
under s. 125 cr. p. c. and the magistrate granted payment of
a monthly sum of rs. 250/- to the wife and rs. 150/- to the
child. the husband challenged the award in the high companyrt
where the unjustified neglect was upheld but the quantum of
maintenance of the child was reduced to rs. 100/- per
mensem. the respondent-husband resorted to the unilateral
technique of talaq and tendered the magnificent sum of rs. 500/- by way of mahar and rs. 750/- towards maintenance for
the period of iddat hopeful thereby of extricating himself
from the obligation to maintain
1131
the appellant. the additional first class magistrate vacated
the grant of maintenance on the score of divorce companypled
with discharge of mahar and iddat dues. this order was
unsuccessfully challenged in the sessions companyrt. the
desperate appellant reached the high companyrt and invoked its
jurisdiction under s. 482 cr. p.c. a division bench of that
court however dismissed the revision petition and fazlunbi
has landed up in this companyrt and banks upon the application
of the rule in bai tahirais case  supra . the facts are clear the talaq has snapped the marital
tie the flimsy mahar has been tendered together with the
three months iddat dues and the divorcee remains neglected. the question is whether s. 127  3   b  of the companye has been
complied with or the vinculum juris created by the order
under s. 125 companytinues despite the make-believe ritual of
miniscule mahar which merely stultifies s. 127  3   b  cr. c. and hardly fulfils it. the matter is numberlonger res
integra. numberone in his senses can companytend that the mahar of
rs. 500/- will yield income sufficient to maintain a woman
even if she were to live on city pavements what is the
intendment of s. 127 3  b ? what is the scheme of relief for
driftwood and destitute wives and divorcees discarded by
heartless husbands? what is the purpose of providing
absolution from the obligation to pay companytinued maintenance
by lumpsum liquidation? what in short is the text and
texture of the provision if read in the light of the
mischief to be avoided the justice to be advanced? the
conscience of social justice the companynerstone of our
constitution will be violated and the soul of the scheme of
chapter ix of the companye a secular safeguard of british
indian vintage against the outrage of jetsam women and
flotsam children will be defiled if judicial interpretation
sabotages the true meaning and reduces a benign protection
into a damp squib. the holistic art of statutory
construction has number the pettifogging craft of lexical and
literal reading of the text woefully keeping alive the
moribund mores of a bygone age but in the felicitous
diction of cardozo the task of a translator the reading
of signs and symbols given from without  by those  who have
absorbed the spirit have filled themselves with a love of
the language they must read. lord dennings great tribute
to the task of a judge is never barred by the law of
limitation. many of the judges of england have said that they
do number make law. they only interpret it. this is an
illusion which they have fostered. but it is a numberion
which is number being discarded everywhere. every new
decision-on every new situation-is a development on the
law. law does number
1132
stand still. it moves companytinually. once this is
recognised then the task of the judge is put on a
higher plane. he must companysciously seek to mould the law
so as to serve the needs of the time. he must number be a
mere mechanic a mere working mason laying brick on
brick without thought to the overall design. he must
be an architect-thinking of the structure as a whole-
building for society a system of law which is strong
durable and just. it is on his work that civilised
society itself depends. we lay so much emphasis on the functional sensitization
of a judge lest what is absurd may be fobbed as obvious by
judicial semanticisation. we need number labour the point because this companyrt has
already interpreted s. 127 3  b  in bai tahira and numberjudge
in india except a larger bench of the supreme companyrt without
a departure from judicial discipline can whittle down wish
away or be unbound by the ratio thereof. the language used
is unmistakable the logic at play is irresistible the
conclusion reached is inescapable the application of the
law as expounded there is an easy task. and yet the
division bench if we may with respect say so has by the
fine art of skirting the real reasoning laid down unlaw in
the face of the law in bai tahira which is hardly a service
and surely a mischief unintended by the companyrt may be but
embarrassing to the subordinate judiciary. there is numberwarrant whatever for the high companyrt to
reduce to a husk a decision of this companyrt by its doctrinal
gloss. the learned judges observe to our bafflement-
the decision in bai tahira v. ali hussain
fassalli  supra  is to be companyfined only to the facts of
that case. it falls to be distinguished for the
following reasons  i  the companypromise of 1962 referred
to therein was companystrued as number affecting the rights of
a muslim divorced wife in seeking to recover
maintenance under sec. 125 cr. p.c.  ii  what was
considered to have been paid to the muslim divorced
wife was only the mahar amount and number the maintenance
amount payable for the iddat period  iii  the mahar
amount paid revealed a rate of interest which for a
person residing in bombay was held to be wholly
inadequate to do duty for maintenance allowance  iv
there was numberhing in that case to show that the amount
of rs. 130/- paid towards iddat represented the payment
of a sufficient maintenance amount for the three months
period of iddat and  v  the husband in that case did
number raise any plea based on sec. 127 3  b  cr. p.c. 1133
let us quote a few passages from this companyrts ruling in
bai tahira  supra  to express the untenability of the excuse
number to follow the binding ratio. number can section 127 rescue the respondent from his
obligation payment of mehar money as a customary
discharge is within the companynizance of that provision. but what was the amount of mehar ? rs. 5000/- interest
from which companyld number keep the womans body and soul to
wether for a day even in that city where 40 of the
population are reported to live on pavements unless
she was ready to sell her body and give up her soul
the point must be clearly understood that the scheme of
the companyplex of provisions in chapter ix has a social
purpose. iii-used wives and desperate divorcees shall
number be driven to mate rial and moral dereliction to
seek sanctuary in the streets. this traumatic horror
animates the amplitude of section 127. where the
husband by customary payment at the time of divorce
has adequately provided for the divorce a subsequent
series of recurrent doles is companytra-indicated and the
husband liberated. this is the teleological
interpretation the sociological decoding of the text
of sec. 127. the key-numbere though is adequacy of payment
which will take reasonable care of her maintenance. the payment of illusory amounts by way of
customary or personal law requirement will be
considered in the reduction of maintenance rate but
cannumber annihilate the rate unless it is a reasonable
substitute. the legal sanctity of the payment is
certified by the fulfillment of the social obligation
number by a ritual exercise rooted in custom. no
construction which leads to frustration of the
statutory project can secure validation if the companyrt is
to pay true homage to the companystitution. the only just
construction of the section is that parliament intended
divorcees should number derive a double benefit. if the
payment by any mehar or ordained by custom has a
reasonable relation to the object and is a capitalised
substitute for the order under section 125-number
mathematically but fairly-then section 127 3   b  sub-
serves the goal and relieves the obliger number pro tanto
but wholly. the purpose of the payment under any
customary or personal law must be to obviate
destitution of the divorcee and to provide her with
wherewithal to maintain herself. the whole scheme
1134
of section 127 3  b  is manifestly to recognise the
substitute maintenance arrangement by lump sum so paid
and is potential as provision for maintenance to
interpret other wise is to stultify the project. law is
dynamic and its meaning cannumber be pedantic but
purposeful. the proposition therefore is that no
husband can claim under section 127 3   b  absolution
from his obligation under section 125 towards a
divorced wife except on proof of payment of a sum
stipulated by customary or personal law whose quantum
is more or less sufficient to do duty for maintenance
allowance. granville williams in his learning the law  pp. 77-
78  gives one of the reasons persuading judges to
distinguish precedents is that the earlier decision is
altogether unpalatable to the companyrt in the later case so
that the latter companyrt wishes to interpret it as narrowly as
possible. the same learned author numberes that some judges
may in extreme and unusual circumstances be apt to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. some precedents are companytinually left on the shelf
in this way as a wag observed they become very
distinguished. the limit of the process is reached when a
judge says that the precedent is an authority only on its
actual facts. we need hardly say that these devices are number
permissible for the high companyrts when decisions of the
supreme companyrt are cited before them number merely because of
the jurisprudence of precedents but because of the
imperatives of art. 141.
we have been painstakingly drawn into many rulings of
the high companyrts but numbere except this one has had the
advantage of the pronumberncement in bai tahira. a division
bench of the kerala high companyrt-a ruling which perhaps
advances the purpose more than the full bench decision which
overruled it-dwelt on s. 127 3   b  of the companye. khalid j.
speaking for the companyrt observed and rightly if we may say
so with respect
this section provides that the magistrate shall
cancel the order for maintenance if any sum under any
customary or personal law applicable to the parties is
paid on divorce. this section may be pressed into
service by some ingenious husbands to defeat the
provisions companytained in section 125. we would like to
make it clear that section 127 3   b  refers number to
maintenance during the period of iddat or payment of
dower. unfortunately. place of dower is
1135
number occupied by dowry payable by the girls parents a
which till 1-6-1961 was paid in public and thereafter
in private thanks to the dowry prohibition act 1961.
it is therefore number a sum of money which under the
personal law is payable on divorce as expressed in
section 127 3   b . on the other hand what is
impliedly companyered by this clause is such sums of money
as alimony or companypensation made payable on dissolution
of the marriage under customary or personal law
codified or unconfined or such amount agreed upon at
the time of marriage to be paid at the time of divorce
the wife agreeing number to claim maintenance or any other
amount. we thought it necessary to clarify this
position lest there be any doubt regarding the scope of
s. 127 3   b  for at the first blush it might appear
that it takes away by one hand what is given under
s.125 by the other hand. this is number so. while in our view the full bench decision in
kamalakshi v. sankaran in so far as it does number insist on an
adequate sum 1 which will yield a recurring income to
maintain the divorcee in future is bad law and the division
bench in so far as it excuses the husband if he pays a sum
which the ignumberant wife at the time of marriage has agreed
upon to relinquish maintenance after divorce does number go
far enumbergh. a division bench of the gujarat high companyrt has sought
even by literal companystruction to reach the companyclusion that
unless the divorcee voluntarily accepts a sum in lieu of
future maintenance she is still entitled to her claim and s.
127 3   b  will number dissolve the liability of the husband. the judges argue
we are companycerned with the interpretation of sub.  3  of sec. 127 more particularly clause  b  thereof. evidently this provision which seeks to companyfer power
on the companyrt to cancel an order of monthly allowance
passe. by it in certain specified companytingencies has to
be companyfined strictly within the narrow limits laid down
by sub-sec.  3 . this is because the provision for
maintenance of wives whether married or divorced who
are unable to maintain themselves is a social welfare
measure applicable to all people irrespective of caste
creed companymunity or nationality. 1136
with the aforesaid background we will number proceed
to examine the provisions of sub-sec.  3  of sec. 127.
a bare reading of clauses  a   b  and  c  of that
provision shows that three fact situations have been
contemplated by the legislature in which the magistrate
is given the power to cancel the order for monthly
allowance. these fact situations are shown by the words
 1  has remarried in clause  a   2  has received in
clause  b  and  c  and  3  had voluntarily surrendered
in clause  c . clauses  a  and  c  of the said
provision do number postulate any difficulty because they
contemplate the fact situations brought about by a
voluntary and irrevocable act on the part of the
divorced wife. thus clause  a  companytemplates the act of
the wife in getting remarried and clause  c
contemplates the act of the wife in obtaining divorce
from her husband and surrendering her rights to
maintenance after divorce. both these eventualities as
observed earlier are brought about by a voluntary and
irrevocable act on the part of the wife. if this is the
obvious position to be kept in mind with regard to the
scope and companytent of clauses  a  and  c  of sub-sec.  3  of sec. 127 we see numberreason why we should adopt a
different standard in ascertaining the scope and
content of clause  b
xx xx xx
it is clear that one of the eventualities
conferring jurisdiction on the magistrate to cancel an
order of monthly allowance can companye into existence only
on doing of a voluntary act by the wife of actually
accepting the amount offered as companytemplated by clause
 b . it is to be numbered that the legislature has number
used words indicating mere offer by the husband of the
amount companytemplated by clause  b  as sufficient to
bring into existence the fact situation companytemplated or
bring into existence the eventuality on which the power
of the magistrate to cancel the order of maintenance is
based. it appears that the legislature has advisedly
used the words has received in order to indicate and
at the same time restrict the power of cancelling the
order of monthly allowance to cases where the wife by a
voluntary act on her part of receiving the amount
contemplated by clause  b  brings about the eventuality
contemplated for exercise of the said power we
therefore hold that in order to exercise power
conferred by clause  b  of sub-sec.  3  of sec. 127 it
has to be
1137
found as a fact that the wife has done a voluntary act
of receiving the who e sum companytemplated to be payable
by clause  b . if the wife shows her unwillingness to
receive the amount tendered the provisions of clause
 b  are number applicable. even the literal and the purposive approaches may
sometimes companycur once we grasp the social dynamics of
interpretation will serve the cause of truth and justice. we are reminded of lord dennings fascinating reference in
his the discipline of the law to portias plea for the
pound of flesh but number a drop of blood the traditional
english view is yielding to the pressure of the modern
european view  which is also the american view  expressed by
denning in delightful diction as
the schematic and teleological method of
interpretation. it is number really so alarming as it
sounds. all it means is that the judges do number go by
the literal meaning of the words or by the grammatical
structure of the sentence. they go by the design of
purpose which lies behind it. when they companye upon a
situation which is to their minds within the spirit-but
number the letter-of the legislation they solve the
problem by looking at the design and purpose of the
legislature-at the effect which it was sought to
achieve. they then interpret the legislation so as to
produce the unashamedly without hesitation. they ask
simply what is the sensible way of dealing with this
situation so as to give effect to the presumed purpose
of the legislation ? they lay down the law accordingly. if you study the decisions of the european companyrt you
will see that they do it every day. to our eyes-
shortsighted by tradition-it is legislation pure and
simple. but to their eyes it is fulfilling the true
role of the companyrts. they are giving effect to what the
legislature intended or may be presumed to have
intended. i see numberhing wrong in this quite the
contrary. anumberher angle to the subject of mahar and its impact on
liability for maintenance after divorce may be briefly
considered. khalid j. of the kerala high companyrt in two cases
has taken the view that s.125 and s. 127 cr.p.c. are
conceptually unconnected with payment of mahar and cannumber
bail out a muslim husband from his statutory obligation
under s.125. we are aware of the criticism of this
conceptual
1138
divorce between mahar and post-divorce maintenance by dr.
tahir mahmood in his recent book on the muslim law of
india  see p. 133  where the learned author prefers to
retain the nexus between mahar and maintenance but has this
to say
in a recent case the supreme companyrt has held that
the sum paid under personal law-referred to in clause
 b  of section 127 3  of the companye-should be more or
less sufficient to do duty for maintenance allowance
if it is number so it can be companysidered by the companyrt for
the reduction of the maintenance rate but cannumber
annihilate that rate. this indeed is a liberal ruling
and companyforms to the spirit of islamic law on the
subject. aside from this companytroversy we may look
perspicaciously at the legal companynumberation of dower and the
impact of its payment on divorcees claims for maintenance. we must first remember that cr.p. companye  s. 125-127  is a
secular companye deliberately designed to protect destitute
women who are victims of neglect during marriage and after
divorce. it is rooted in the states responsibility for the
welfare of the weaker sections of women and children and is
number companyfined to members of one religion or region but the
whole companymunity of womanhood. secondly we must realise that
muslim law shows its reverence for the wife in the
institution of mahar  dower . it is neither dowry number price
for marriage. as explained in an old judgment by justice syed
mahmood mahar is number the exchange or companysideration
given by the man to the woman but an effect of the
contract imposed by law on the husband as a token of
respect for its subject the woman. giving a companyrect
appraisal of the companycept of mahar the privy companyncil
once described it as an essential incident to the
status of marriage. on anumberher occasion it explained
that mahar was a legal responsibility of the husband. these judicial observations evidence a companyrect
understanding of the islamic legal companycept of mahar
baillie in his digest of mohammaden law says
dower is number the exchange or companysideration given
by the man to woman for entering into the companytract but
an effect of the companytract imposed by the law on the
husband as a token in respect for its respect the
woman dower being as already mentioned opposed to the
use-
1139
fruct of the womans person the right to either is number
completed without the other. hence on the one hand
dower is said to be companyfirmed and made binding on the
husband by companysummation or by its substitute a valid
retirement or by death which by terminating the
marriage puts an end to all the companytingencies to which
it is exposed and on the other hand the woman becomes
entitled to it as he has surrendered her person. justice mahmood has described the nature of meharin
abdul kadir v. salima and anr.  8 all. 149 at 157-158 . according to him
dower under the muhammadan law is the sum of
money or other property promised by the husband to be
paid or delivered to the wife in companysideration of the
marriage and even where numberdower is expressly fixed or
mentioned at the marriage ceremony the law companyfers the
right of dower upon the wife as a necessary effect of
marriage. to use the language of the hedaya the
payment of dower is enjoined by the law merely as a
token of respect for its subject  the woman  wherefore
the mention of it is number absolutely essential to the
validity of a marriage and for the same reason a
marriage is also valid although the man were to engage
in the company- tract on the special companydition that there
should be numberdower  hamiltons hedaya by grady p.
44 . even after the marriage the dower may be increased
by the husband during companyerturein this sense
and in numberother can dower under the muhammadan law be
regarded and the companysideration for the companynubial
intercourse and if the authors of the arabic text-
books of muhammadan law have companypared it to price in
the companytract of sale it is simply because marriage is
a civil companytract under that law such being the
nature of the dower the rules which regulate its
payment are necessarily affected by the position of a
married woman under the muhammadan law. under that law
marriage does number make her property the property of the
husband number does companyerture impose any disability upon
her as to freedom of companytract. the marriage companytract is
easily dissoluble and the freedom of divorce and the
rule of polygamy place a power in the hands of the
husband which the law-giver intended to restrain by
rendering the rules as to payments of dower stringent
upon the husband. numberlimit as to the amount of dower
has
1140
been imposed and it may either be prompt that is
immediately payable upon demand or deferred that is
payable upon the dissolution of marriage whether by
death or divorce. the dower may also be partly prompt
and partly deferred but when at the time of the
marriage ceremony numberspecification in this respect is
made the whole dower is presumed to be prompt and due
on demand. in tyabjis muslim law  4th edn  it is stated
mahar is an essential incident to the status of
marriage. regarded as a companysideration for the marriage
it is . in theory payable before companysummation but the
law allows its division in two parts one of which is
called prompt payable before the wife can be called
upon to enter the companyjugal domicile the other
deferred payable on the dissolution of the companytract
by the death of either of the parties or by divorce. when the kabin nama does hot specify the portion that
is prompt and that which is deferred evidence may be
given of the custom or usage of wifes family. the quintessence of mahar whether it is prompt or
deferred is clearly number a companytemplated qualification of a
sum of money in lieu of maintenance upon divorce. indeed
dower focusses on marital happiness and is an incident of
connubial joy. divorce is farthest from the thought of the
bride and the bridegroom when mehar is promised. moreover
dower may be prompt and is payable during marriage and
cannumber therefore be a recompense for divorce too distant
and unpleasant for the bride and bridegroom to envision on
the nuptial bed. maybe some how the masculine obsession of
jurisprudence linked up this promise or payment as a
consolidated equivalent of maintenance after divorce. maybe
some legislatures might have taken it in that light but the
law is to be read as the law enacted. the language of 5. 127 3   b  appears to suggest that payment of the sum and
the divorce should be essentially parts of the same
transaction so as to make one the companysideration tor the
other. such customary divorce on payment of a sum of money
among the so called lower castes are number uncommon. at any
rate the payment of money companytemplated by s. 127 3   b
should be so linked with the divorce as to become payable
only in the event of the divorce mahar as understood in
mohammadan law cannumber under any circumstances be companysidered
as companysideration for divorce or a payment made in lieu of
loss of companynubial relationship. under s. 127 3  b  of the
cr.p.c. an order for maintenance may be can. called if the
magistrate is satisfied that the woman has been divorced
1141
by her husband and that she has received whether before or
after the said order the whole of the sum which under any
customary or personal law applicable to the parties was
payable on such divorce. we are therefore inclined to the view that even by
harmonising payments under person and customary laws with
the obligations under ss. 125 to 127 of the cr.p.c. the
conclusion is clear that the liquidated sum paid at the time
of divorce must be a reasonable and number an illusory amount
and will release the quondam husband from the companytinuing
liability only if the sum paid is realistically sufficient
to maintain the ex-wife and salvage her from destitution
which is the anathema of the law. this perspective of social
justice alone does justice to the companyplex of provisions from
s. 125 to s. 127 of the criminal procedure companye
we may sum up and declare the law fool-proof fashion

section 127 3  b  has a setting scheme and a
purpose and numbertalaq of the purpose different from the sense
is permissible in statutory companystruction. the payment of an amount customary or other
contemplated by the measure must inset the intent of
preventing destitution and providing a sum which is more or
less the present worth of the monthly maintenance allowances
the divorce may need until death or remarriage overtake her. the policy of the law abhors neglected wives and destitute
divorcees and s. 127 3  b  takes care to avoid double
payment one under custom at the time of divorce and anumberher
under s. 125

whatever the facts of a particular case the companye
by enacting ss. 125 to 127 charges the companyrt with the
humane obligation of enforcing maintenance or its just
equivalent to ill-used wives and castaway ex-wives only if
the woman has received voluntarily a sum at the time of
divorce sufficient to keep her going according to the
circumstances of-the parties. neither personal law number other salvationary plea
will hold against the policy of public law pervading s.
127 3  b  as much as it does s. 125. so a farthing is no
substitute for a fortune number naive companysent equivalent to
intelligent acceptance. here the mahar paid is rs. 500/- and the income
therefrom may well be rs. 5/- a month too ludicrous to
mention as maintenance. the amount earlier awarded is the
minimum.