JUDGMENT <NAME>, C.J.

1. This batch of three revision petitions seeks to vacate the petitioner having been charged tax on sales of kerosene oil, in the assessment years 1953-54, 1954-55 and 1957-58. The claim for the exemption from the tax on the aforesaid sales had been made on the basis of the dealer's being only the agent, and having earlier registered as such; but the claim had been rejected on the ground of the sales not being on behalf of <ORG>, because of the petitioner's having bought the oil from the aforesaid concern earlier. The petitioner has, for the assessment year 1953-54, claimed exemption on Rs. 8,45,905-9-6 out of the total turnover of Rs. 17,63,726-11-0, on the ground of the amount representing sales of kerosene as commission agent for <ORG> As regards the next assessment year 1954-55, the amount asked to be exempted is Rs. 7,49,804-84 nP.; and so far as the assessment year 1957-58 is concerned, Rs. 4,17,151-33 nP. has been requested to be excluded for the same reason. The written agreement, which the petitioner asserts to be of agent, is dated 1st June, 1952, but mentions the document to be kerosene sales agreement. It is not disputed that the petitioner's licence under Section 9 of the General Sales Tax Act, No. XI of 1125, had been renewed for all the three assessment years, and which section, omitting the unnecessary proviso, reads thus:-

Government may, on application and on payment of such fee as may be prescribed in that behalf, license any person under this section who for an agreed commisson or brokerage buys or sells on behalf of known principals specified in his accounts in respect of each transaction and may exempt from the tax or the taxes payable under Section 3 such of his transactions as are carried out in accordance with the terms and conditions of his licence.

* * * * Provided also that the burden of proving that a transaction is exempt, by virtue of this section, from the tax or taxes payable under Section 3 , shall be on the licensee. 2. The assessing authority had disallowed all the claims for the reason, which reads as follows :-

The agreement between the assessee and <ORG> was, however, not made available for verification. A copy of the same was, therefore, called for from the company direct for verification. It is seen from the covering letter and copy of agreement furnished by the company that the previous agreement was replaced by a fresh and totally different one with effect from 1st June, 1952. Whatever be the merit or defects of the previous agreement, the current one cannot be construed as a commission agency agreement in the accepted sense of the term and as contemplated under Section 9 . At best it is a distributorship, and the company reserves no ownership or other rights over the stocks in the possession of the assessee. I think the first clause of the agreement itself will set at rest any doubt or controversy. As per Clause 12, the risk of loss or damage is also on the assessee. In the light of these facts, I feel that the claim for agency exemption under Section 9 , will not stand and will be disallowed.

3. The appeals against the aforesaid rejections having failed, the petitioner appealed to <ORG>, and the Tribunal has also dismissed the appeals. It has found from clauses 2, 4, 5, 8, 12, 17 and 34 of the agreement that it is one of sale of kerosene to the petitioner, and, therefore, does not create the relationship of principal and agent between <ORG> and the petitioner. There are no findings by the taxing authorities, nor by <ORG> on what are the terms of the licences that had been renewed for the three assessment years, and whether these licences cover the sales of kerosene by the petitioner as agent of the <ORG> Company. The three revision petitions before us are against the orders for the three assessment years. Revision Petition No. 55/59 covers the assessment year 1954-55, No. 57/59, the assessment year 1957-58; and No. 58/59 is against the rejection of the claim for the assessment year 1953-54. The grounds taken in all are common, and have been formulated in the form of the following three questions :-

(1) Whether on a true construction of the agreement dated 1st June, 1952, between the assessee and <ORG>, the kerosene supplied by <ORG>, to and sold by the petitioner are as purchaser or as commission agent ?

(2) Whether the respondent is precluded from levying and collecting sales tax on the disputed turnover on account of the fact that a licence under Section 9 of the Sales Tax Act was granted to the petitioner ?

(3) Is the order of <ORG>, Kerala, Trivandrum, in the above matter, sustainable in view of the failure of the Tribunal to decide the question of law ?

4. It is clear that, should we answer the first question in the petitioner's favour, a finding would be necessary on whether he has observed the terms of his licence under Section 9 ; for, it is not disputed that to obtain the benefit under the section, a dealer must not only show his being an agent, but also having observed the terms of the licence. In these circumstances, the cases have to be remanded; and adjudications of the other questions become unneccessary. Nor it should be disputed that, should the petitioner be really a purchaser, any erroneous view earlier entertained by the taxing department when renewing the licences would not preclude the <ORG> from cancelling them, after it had been correctly apprised of the correct position. The decisive issue in these revision petitions, therefore, is whether the agreement, on a fair reading of all its terms, be really one of agency; which, in other words, means the necessity to decide how far the taxing authorities and <ORG> have correctly held it to be of sale.

5. The agreement contains 42 clauses, and these can be grouped under two heads. The first should cover the rights and liabilities of the parties, so long as the agreement continues; and the other, after it had been terminated. Coming to the first head, Clause 2 provides for the quantity of the oil to be purchased, whose minimum for each month would be required by the company and roust be ordered ; Clause 5 is about the company's right to change the prices, mot only of what is sold to the petitioner, but what is to be sold by him ; Clause 8 casts the duty on the petitioner not to represent his being the selling agent of the company ; Clause 9 reserves the right of the company to sell directly; Clause 15 makes the property of the company to be in trust for the company; Clause 17 enables the company to fix the price at which the petitioner is to sell the oil and Clause 19 enables the company to insure the property as well as the stock of kerosene with the petitioner. The liabilities under the agreement are to be found in Clause 4, that makes the purchaser liable to pay for all the kerosene purchased on the dates of the .commodity being shipped ; in clause 7 that fixes the area, wherein the oil purchased must be sold; in Clause 10 that provides for payment of packages to be refunded on returnable receptacles being sent back in sound condition; and in Clause 12 that lays the loss or damage or deterioration during the voyage, on the petitioner. Further, Clause 13 provides for petitioner's taking safeguards against contamination of the oil sold and not to adulterate; Clause 14 requires him to furnish facilities for the storage of purchased kerosene ; and Clause 18 casts the responsibility of due care for the protection of the company's properties. In addition, Clause 20 makes expenses incidental to storage, to he of the petitioner, and Clause 22 provides him indemnifying the company against third party's claims. Correct reports in writing of all sales effected by the petitioner, irrespective of whether they be on cash or credit, must be, under Clause 25, submitted to the company's office in Madras; Clause 26 requires sales accounts being kept; and under Clause 28 all accounts, on termination of the agreement, must be settled.

6. Such are the positions of the parties during the agreement; and after the termination, their rights and liabilities are as follows:- Under Clause 31 the company is .given the option to use the premises used by the petitioner; by Clause 34 not only the properties of the company are to be surrendered, but the stock of the kerosene already purchased should also be given up and the price, if paid, to be repaid. Finally, .clause 36 directs the petitioner, during the continuance of the agreement, to furnish security for the due performance of the obligations he had undertaken under the agreement.

7. It is clear that to hold this agreement to be one of sale only, would be to pay inadequate attention to certain provisions of the agreement. Taking some of such clauses seriatim, the company is, by Clause 2, given the right to notity in writing the minimum quantity of kerosene which the petitioner must order each month, and further the right to require his maintaining at all such times such minimum stock of kerosene as the company may notify. The ordinary rule of contract being formed on the acceptance of the offer being communicated is, by Clause 3, excluded, whereunder the company has the right to treat any order or orders accepted or acknowledged as cancelled, and the petitioner's right to revoke any offer before acceptance is also taken away. The two provisions are consistent with the right of a principal to determine how much oil should his agent have, and to override what the agent thinks he requires. Further, though the petitioner, under the earlier clause, is to pay the price at the time of the shipment, yet the company has, under Clause 5, the right, from time to time and without previous notice, to change all or any prices, whether they be of the petitioner or of his purchases. It appears to us that this clause clearly indicates the right of a principal to control the price in the market of the commodity with an agent. Clause 7 not only confers the right to define the area, in which the petitioner is to sell the oil, but also authorises the company, at its absolute discretion, from time to time, to increase, reduce, restrict, or otherwise alter the said area or territory. This provision looks more like the principal's authority of limiting the locality, wherein his goods are to be sold, than a purchaser being restricted within a defined area to sell commodities he had purchased. Then there is the obligation under clauses 13 and 14, which provide for taking reasonable precaution against contamination of the kerosene by water, dirt, impurities, or other matters injurious to its quality, and for storage of the kerosene purchased from the company in duly licensed manner, the company having the discretion to make monthly deductions for providing such duly licensed storage facilities. We do not see why owners of goods should be placed under such restrictions, unless the intention be of the sales being the business of another. Again, the company may, without being under any obligation, from time to time, furnish, under Clause 15, equipment and other property for receiving, storing, or conveying kerosene, or otherwise for use by petitioner in his business, and, though such equipment, other property and receptacles not paid for by the petitioner, remain the sole and absolute properties of the company, yet the absence of any payment for their use is significant. Clause 16 restricts the petitioner's right of buying or selling the products of another company ; Clause 17 fixes the price, at which the oil is to be sold to the public within the area; and by Clause 19 the company can not only insure all its property or equipment stored with, loaned to, or rented by the petitioner, but can also insure all kerosene sold to the petitioner against loss by fire, and that, not only during the transit, but even when in the petitioner's possession, provided the kerosene be in the warehouses, that are put up by the company. We do not see how the company can have insurable interest in the property sold to another and undertake to bear insurance expenses, unless it be that the company really is the principal. We find clauses 25 and 26 requiring accounts to be kept of daily sales, not only cash, but of credit; and these accounts are to be made available for inspection by the authorised representatives of the company. Finally, Clause 34 requires the petitioner to deliver, on termination of the agreement, not only what are the company's property, but kerosene as well; and what has been paid for, shall be treated as repurchased by the company at the original price, less the discount and deductions.

8. Having weighed these with the other provisions in the agreement, it is clear that the business carried under the agreement, would be of the company, rather than that of the petitioner. To put it differently, there is no such freedom of control, nor sufficiency of profit, nor liberty of action left to the petitioner, to fairly hold selling the kerosene oil to be the petitioner's business. It is true that Clause 8 forbids the company being held out as a principal; but should the business be of the company, the direction like Clause 8, would not convert it into that of the petitioner's. It has to be weighed with the directions of keeping accounts, of circumscribing the area, of determining the re-sale price, of insuring the kerosene already sold, of not being bound even after acceptance, as well as of security for the due performance of such acts. On weighing all these, we have come to the conclusion that under this agreement, the petitioner would be doing the business of another.

9. In this connection, it is well to remember that purporting to purchase commodities, would not be fatal to the agreement in substance being of agency; and in support of this view we would quote the following part of paragaph 17 of American Jurisprudence, Volume 46, American Jurisprudence, page 211, where it is stated:-

The primary test of whether a particular contract or transaction whereby goods are delivered or shipped by one party to another for sale by the latter, creates the relation of, buyer and seller or only a relation of principal and agent, is the intention of the parties to be gathered from the whole scope and effect of the language used, and mere verbal formulas, if inconsistent with the real intention, are to be disregarded. It does not matter by what name the parties chose to designate it. That does not determine its character. The courts look beyond mere names within to see the real nature of the agreement, and determine from all its provisions taken together, and not from the name that has been given to it by the parties, or from some isolated provision, its legal character and effect. The courts will not permit the parties by designating the transaction as a consignment for sale to use it as a cloak or device to disguise the real character of the transaction, and thus enable the consignor to retain a lien or security for the purchase price as against levying creditors of the consignee. It has been held that one appointed exclusive seller of goods which he was to purchase from the owner at a discount, and which he could not sell below retail price, or a dealer under taking to order, for a customer, goods which he does not have in stock, is a mere agent.

10. The case relied in support of the first of the two propositions lastly stated, is <ORG> v. <NAME> 35 Law Ed. p. 782, at p. 815. There, the plaintiff was, by contract, appointed exclusive vendor of defendant's machines, which he was to purchase from defendant at a large discount, and could not sell below the regular retail prices. In such circumstances he was held to be mere agent of the defendant to- sell the machines, and the principal to have a right to determine or revoke the authority at his own mere pleasure, when not otherwise agreed between them. The learned Judge observes as follows :-

It is true that the machines he undertook to sell were to be purchased by him from the company at a large discount. But he could not sell them by retail below the regular retail prices. This arrangement was the mode adopted to protect the company's interests, and to secure to the plaintiff such compensation for his services as would induce him to devote his time, attention and abilities to the company's interests. He was still a mere agent to sell such machines as might be delivered to him under the contract. We perceive nothing in the agreement of 1874 to take the case out of the general rule that 'the principal has a right to determine or revoke the authority given to his agent at his own mere pleasure ; for, since authority is conferred by his mere will, and is to be executed for his own benefit and his own purposes, the agent cannot insist upon acting when the principal has withdrawn his confidence, and no longer desires his aid.'

11. In this country as well, vesting the agent with ownership has not been held to be fatal to the agreement being one of agency; for, in <CITATION>  1 S.T.C. 245 at pp. 268, 280, <NAME>, J., has observed as follows :-

Section 8 , in my opinion, is intended to cover transactions of accommodation contemplated by Explanation 4 to the definition of 'turnover' in the Act. In such a case, notwithstanding the fact that at some point of time the ownership of the goods had vested in him while the purchase was made only to accommodate a particular person, if he shows in his accounts the agreed commission or brokerage and acts on behalf of a known principal and not a fictitious and non-existing one and also makes it possible to levy the tax by including the turnover in the turnover of the seller's principal or purchaser's principal he would escape from the liability to pay the tax notwithstanding that the ownership had vested in him at some point of time.

12. <NAME>, J., also has observed as follows:-

There may be cases where an agent buys goods himself and immediately thereafter sells the same goods to his principal for the cost price plus an agreed amount for commission. Conversely he may buy his principal's goods himself and then sell them to strangers for the cost price plus an additional sum representing his commission. In such cases an lagent is, in law, a buyeror seller of goods as the case (1) [1950] 1 S.T.C. 245 at pp. 268, 280. may be, and would be a 'dealer' within the definition in Section 2(b) of the Act. But in truth and in fact he is really buying and selling for the benefit of his principal, charging a commission for himself as his remuneration. In such cases Section 8 might well come into play and an agent of this description who takes out a licence under Section 8 would be exempt from sales tax in respect of such of his transactions as are carried out in accordance with the terms of Section 8 and the licence issued thereunder.

13. <CITATION>  3 S.T.C. 121. the Full Bench has described who is a commission agent, and has shown him to be a person, who has control over or possession of the goods, and to have the authority from the owner of the goods to pass the property in and title to the goods. In these circumstances, it was held that when a commission agent sells goods belonging to his principal with his authority and consent and without disclosing to the buyer, the name of the owner, there is certainly a transfer of property in the goods from the commission agent to the buyer, and such a business can properly be described as a business of selling goods. The learned Judges further held that similar position would arise even in the case of a commission agent buying for an undisclosed principal, and such a person would be liable to sales tax under Section 3 , but would be exempted under Section 8 . Coming to <NAME> v. State of Madras  4 S.T.C. 379. it was found that under Section 8 of the Madras General Sales Tax Act the exemption granted to a commission agent, to whom a licence had been issued under that section, does not extend to all the transactions carried on by him, but is limited to such of his transactions as are carried out in accordance with the terms of the licence issued to him. It was further held that his claim to immunity from tax is dependent on his fulfilling the conditions of his licence. The learned Judge in <CITATION>  5 S.T.C. 202 held that when goods were sold by an unlicensed commission agent, there was only one sale, and in respect of that one sale, tax could not be levied twice by the department, once in the hands of the commission agent treating him as a dealer, and a second time in the hands of the principal treating the same turnover as the turnover of the principal. In <NAME> v. State of Madras (now Andhra)  6 S.T.C. 216 it was held that where goods are sold by a commission agent, who is not licensed under the Madras General Sales Tax Act, 1939, and he has paid tax, as there is one sale effected by the commission agent, the price for such sale, cannot be treated as the turnover of the principal also, and the latter cannot be required to pay the tax for the second time. <ORG> in <CITATION>  7 S.T.C. 722. has held that a commission agent, when he agrees to work for his principal as the latter's agent, and to obtain for his principal the goods, which the latter wants, undertakes a duty, which he has to discharge by purchasing the goods required and supplying them to his principal. The transfer of the goods purchased by him to his customer, is an act done in the discharge of his duty as an agent. Such a contract between the principal and the commission agent is not one of sale, but of agency, and the transfer of property in the goods is not a sale within the meaning of the Sale of Goods Act , 1930. The learned Judges have further held that though the purchase of goods on behalf of the assessee's principal was a sale, the subsequent supply to the principal did not amount to a sale by the assessee to the principal, as defined in the Sale of Goods Act .

14. The learned Government Pleader relies on <CITATION>  8 S.T.C. 845 where <ORG> has held the transaction under the following circumstances to be of sale. A dealer in bidies, appointed an agent in U.P., who had to sell the goods at prices fixed under the agreement. The agent was entitled to a commission, but had to submit account of stock received and sold and the balance on hand at the end of every month. There was further no responsibility for any shortage in transit or liability to receive any unsold stock, if the agreement be terminated. In these circumstances, the real effect of the transactions was held to be sales within the meaning of Section 2(g) , Explanation II of the State Act. We would respectfully disagree, should the learned Judges be considered as having taken the view in the case that a person is not an agent, because at certain points in dealings with his principal, he becomes vested with the ownership. We think that where vesting of ownership in the agent is to sell the goods of the principal, the earlier transfer would be incidental to the main purpose of making the person an agent, and would not convert the transaction into one of sale. The learned Government Pleader next relied on <CITATION>  9 S.T.C. 248 where it was held that the cement delivered, despatched, or consigned by the assessee to <ORG>, or to their orders, or in accordance with their directions, were sales to the latter, and were, therefore, liable to be taxed under the Bihar Sales Tax Act. We respectfully differ from the proposition that sales to the agent for purposes of selling the principal's goods, would always attract the tax; for, should the proposition, so broadly stated, be accepted as correct, we do not see how a commission agent can be exempted from the operation of the sales tax. The Government Pleader has also referred to <CITATION>  10 S.T.C. 74 where it was found that any unconditional appropriation of the goods by the assessee as soon as the sugar was packed in the factory and put in deliverable state would amount to sales, and, therefore, the assessee would be liable to pay the tax. We do not think the case decides anything, which is contrary to the view we are taking in this case.

15. It is clear from the aforesaid survey of the decisions, that three <ORG> have held vesting of ownership in the commission agents is not sufficient to deprive the agents of the benefits of licences, should they hold such licences for carrying on the business ; and the consequence of the proposition, being established is that the vesting of ownership in agents for purposes of carrying on their agencies, would not be fatal to their being treated as agents. It further follows that the commission agency would be merely illustration of the broader rule of persons being still agents, though they be getting the ownership of the goods for purposes of their doing business of agency. Therefore, the provisions in the agreement of 1st June, 1952, whereby the petitioner is to purchase the goods, pay for them, and carry them at his risk, would not be fatal to his case of the agreement being of agency. These, with others, clearly show that in carrying out the terms of the agreement, the petitioner cannot be treated as carrying on his own business. With prices for sales by the petitioner being fixed by the company and with the liability to pay the company what price it determines, discount on the price paid to the company is the only profit that the petitioner earns ; and we think such discounts really amount to commission on the sales of the kerosene effected by the petitioner. Then the area, in which the petitioner has to operate, is fixed by the company; the storing is with the facilities afforded by the company; and on termination of the agreement what remains must be given up. On these grounds we hold that the true position of the petitioner is not that of a purchaser but of an agent, which is further emphasised by the requirement of keeping and rendering accounts. It is true that the assessee is not to put himself as an agent, but such secret direction by the principal would not affect the rights of a stranger. We, therefore, feel that <ORG> has wrongly interpreted the agreement to be of sale. The position of the petitioner, being an agent, is further strengthened by his having taken licence under Section 9 of the Sales Tax Act, and the assessing authorities as well as <ORG> have erred in not deciding what are the terms of the licence. Indeed, we have not been able to find what the licence in 1952 contains though it is clear that the subsequent years extended what was then granted. It follows that the petitioner would become entitled to exemption on his sales of kerosene for the aforesaid three assessment years, should he be found to have sold in accordance with the licence that had been renewed in his favour under Section 9 , after the taxing authorities had seen the agreement of 1st June, 1952.

16. We would, therefore, remand the cases to <ORG> to determine what were the terms of the licence. It is clear that the petitioner would be entitled to the benefit of Section 9 , only when it is established that he did the business in the three assessment years according to the renewed licences after the taxing authorities had seen the agreement.

17. Accordingly, we allow the revision petitions, vacate the earlier judgments, and remand the cases to <ORG> to decide afresh the appeals before it, in view of what we have held to be the legal position. Costs will abide the final result.


ORDER <NAME>, C.J.

1. Pursuant to directions given by this Court in in ITC No.44/92 under Section 256(2) of the Income-tax Act, 1961 (in short the 'Act') following question has been referred for opinion of this Court by <ORG>. Delhi Bench 'C' (in short the <ORG>):

"Whether on the facts and in the circumstances of the case, <ORG> was justified in holding that the Trust settled for the benefit of the sole beneficiary first son of Shri <NAME> who was unborn at the time of creation of the Trust, is a valid trust?"

2. Factual background in nutshell is as follows:

assessed settled 60,000 equity shares of <ORG> of the face value of Rs.5/- each for the benefit of first son of <NAME>. Son of late Col. <NAME>. For this purpose a trust was created on 2.5.1974. Income-tax Officer (in short the 'ITO') was of the view that the trust was not valid and effective as there was no existence of any beneficiary. Income arising out of the aforesaid shares was included in the income of the assessed. Matter was carried in appeal before the Commissioner of Income-tax (Appeals)(in short the 'CIT(A)'). Adopting the view expressed earlier, in some cases the CIT(A) deleted the addition. Matter was carried in appeal before the <ORG> by the <ORG>. It was revenue's stand that in the absence of a definite or known beneficiary, creation of the trust itself was invalid. <ORG> did not accept the stand. A prayer for reference under Section 256(1) of the Act was turned down. Subsequently, pursuant to the directions of this Court, the aforesaid question has been referred for opinion along with statement of case.

3. We have heard learned counsel for the parties. Stand of learned counsel for <ORG> is that in the absence of known beneficiary, a trust is a misconceived idea. According to him, for constituting a valid trust there must be a definite and an existent beneficiary. According to learned counsel for the assessed, if the description of the beneficiary is there, it would be sufficient compliance with the requirements of law.

4. In order to constitute a valid trust the author of the trust must indicate with reasonable certainty:

(a) the intention on his part to create a trust, (b) the purpose of the trust, (c) the beneficiaries, (d) the trust property and (e) transfer of property to the trust. According to learned counsel for the <ORG> except condition (c) all other conditions are present here. We find that it is not a case where the beneficiary was unknown or indefinite. In fact it was clearly stipulated that the beneficiary was the first son of <NAME>. At this juncture, it would be also relevant to take note of Section 13 of the Transfer of Property Act, 1882 (in short 'T.P.Act'). Section 13 reads as follows:

"13. Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property."

As per the illustration appended to the provision where A transfers his property to B in trust for A and his prospective wife successively for their life and after the death of the survivor, for the eldest son of the intended marriage for life and after his death for A's second son, interest created for the benefit of the eldest son does not take effect for the reason that it does not extend to the whole of A's remaining interest in the property.

5. A transfer cannot be made directly to an unborn person, for the definition of transfer in Section 5 is limited to living persons. Such transfer can only be made by the machinery of trusts. Possibly, to express this distinction, the expression "for the benefit of" has been used, since trustees being the transferees hold the property for the benefit of the unborn person.

6. In the case at hand the entire interest in the property goes to the benefit of the child to be born to <NAME>. As the facts go to show, in fact a child was born in August 1977, What would have happened if <NAME> did not get a male child is also spelt out in the trust deed.

7. Above being the position the <ORG> was justified in its conclusion. The question referred is answered in the affirmative, in favor of the assessed and against the <ORG>.

8. The reference stands disposed of.


<NAME>, J.

1. On March 18, 1948, a judgment was delivered by the-late Lord <NAME>, in which their Lordships stated the reasons which led them to the conclusion that they should humbly advise His Majesty that this appeal should be allowed. Their Lordships do not propose now to repeat what was then said. It suffices to say that the decision of the <ORG> wag given on the assumption, which then appeared to be justified, and had not, indeed, been questioned, that the Police Rules of 1937, to which the judgment refers, had become operative in the year 1938, and at some date prior to April 25, 1938, when the respondent was dismissed from the force.

2. Subsequently to the delivery of the judgment, and before their Lordships had tendered their advice to His Majesty, the respondent submitted a petition wherein he prayed that their Lordships might reconsider their decision, mainly on the ground that it had been ascertained that the Police Rules of 1937 were in fact printed and published on April 29, 1938, that is to say four days after the dismissal of the respondent.

3. Their Lordships accordingly found it necessary to hear further argument and on July 29, 1948, counsel for both parties appeared at their Lordships' bar. It was then admitted that the Police Rules of 1937 were in truth printed and published on April 29, 1938, as the respondent alleged. It follows, in the opinion of their Lordships, that, applying the reasoning contained in the judgment previously delivered, they can only come to the opposite conclusion to that which they had formed on what is now shown to be an erroneous assumption as to a material fact.

4. At the hearing on July 29 of this year counsel for the appellant made an alternative submission to the effect that the rule on which the appellant relied came into force immediately upon its approval by the Governor in Council, and stated that, according to his instructions, that approval was signified on April 17, 1935. Assuming these instructions to be correct, and further assuming (though without deciding) that the approval of the Governor in Council brought the rules immediately into effect, their Lordships are of opinion that, as against the respondent, the rule in question would none the less be inoperative, since the Government of India Act, 1935, under which the rule would have been valid against him, did not come into force until April 1, 1937, and could not then retrospectively affect the respondent's position.

5. On August 6, 1948, their Lordships caused a letter to be addressed to the solicitor representing the appellant, informing him that their Lordships now proposed humbly to advise His Majesty that the appeal should be dismissed, and stating that the order as to costs would not be varied. The letter pointed out that if this advice were tendered, and if His Majesty were pleased to accept it, the effect would be that the declaratory judgment of <ORG> would stand. Finally, the letter referred to the award of Rs. 2,283 to the respondent by <ORG>, which according to a submission made by the appellant's counsel was open to challenge and inquired whether the appellant wished to have an opportunity of satisfying their Lordships that the point was open, and of being heard upon it. By their Lordships' direction, a copy of this letter was sent to the respondent.

6. Their Lordships have now received an intimation that the appellant does not wish to offer any further argument in this case. The respondent, as his counsel stated when the matter was last before the <ORG>, does desire an opportunity of arguing that he shall now be awarded arrears of pay from the date of the institution of his suit on June 17, 1939. Their Lordships do not propose to deal further with this matter. If, in accordance with their Lordships' humble advice, the declaratory judgment of <ORG> is restored, it will be open to the respondent to pursue any remedy which flows from that declaratory judgment in the appropriate Court. Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is unnecessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does not arise in this appeal, which is from the decision of <ORG>. If that decision is affirmed, the respondent who did not himself enter an appeal, cannot now ask for anything more.

7. Their Lordships will humbly advise His Majesty that the appeal, should be dismissed, and that the judgment and decree of <ORG> dated December 4, 1941, should be affirmed. The appellant must pay the respondent's costs of this appeal as between solicitor and client.


PETITIONER: UNION OF INDIA Vs. RESPONDENT: MAJ. I. C., LALA ETC. ETC. DATE OF JUDGMENT29/03/1973 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, I.D. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 2204 1973 SCR (3) 818 1973 SCC (2) 72 CITATOR INFO : E 1981 SC 368 (6,15,23,24) ACT: Indian Penal Code (Act 45 of 1860), Ss. 120B, 420 and 511, Prevention of Corruption Act , s. 5(1)(d) , 5(2) and 5A , Criminal Law Amendment Act , 1952 Ss. 6 and 7(3) Code of Criminal Procedure Act 5 of 1898), Ss. 196A, 235 and 239- Offence committed at more than one place-Order of which magistrate necessary-Cognizable and noncognizable offences--Criterion-Jurisdiction to try non-Government ser- vant with Government servants. Practice-Duty of court to decide on genuineness of sanction. HEADNOTE: Two army-officers and a businessman were put up for trial before the Special Judge under the Criminal Law Amendment Act , 1952. They were all charged with offences of conspiracy under s. 120B , I.P,.C. read with s. 5(2) of the Prevention of Corruption Act and s. 420 I.,P.C. The businessman was charged under s.420 and ss. 420 and 511 , I.P.C . The two army officers were also charged with the offences under s. 420 I.P.C. read with s. 5(1)(d) of the Prevention of Corruption Act. After some witnesses were examined by the prosecution, on a petition by the three accused, <ORG> quashed the charges and the proceedings on the grounds, (1) that the officer who investigated the case was not competent to do so; (2) that the offences were non-cognizable and hence the Special Judge could not take cognizance-of them without sanction under s. 196A , Cr.P.C .; and (3) in view of the enormous length of time that elapsed between the date the registration of the case and the examination of the witnesses (about 4 1/2 years), to proceed further with the case would be an abuse of the process of <ORG> causing harassment to the accused. Allowing the appeal to this <ORG>, HELD : (1) (a) Under s. 5A of the Prevention of Corruption Act, before it was amended in 1964, no officer below the rank of Deputy Superintendent of Police could investigate into offences punishable under Ss. 161, 165, 165A I.P.C ., or under s. 5 of the Prevention of Corruption Act, without the orders of a Presidency Magistrate or the Magistrate First Class. Where an offence is committed in more than one place the order of every Magistrate within whose jurisdiction the offence or part of the offence was committed was not necessary to enable the investigation to be carried on. All that is necessary is that the Magistrate who makes the order under s. 5A should have territorial jurisdiction over the place where any part of the offence took place. In the present case, the offence of conspiracy was alleged to have been committed both at Tejpur as well as at Gauhati and the Inspector concerned had obtained the order of the First Class Magistrate, Tejpur. [821H; 822A- <CITATION> , A.I.R. 1960 Mysore 242, Chatterjea V. Delhi Special Police Establishment I.L.R. 1969 Assam and Nagaland 275 and Union of India v. <NAME>, A..I.,R. 1971 S.C. 1836, referred to. (b) The High <ORG> expressed doubt whether the order of the Magistrate of Tejpur was a genuine one. If he had any such doubt it was the duty of the Judge to have gone into the matter thoroughly and satisfied 819 himself whether the order was genuine or not, and given a categorical finding on the matter. There should have been no room allowed for any doubt, or suspicion of any underhand dealing or unfair conduct, in a matter of this kind. [823A- C] (2) Under Schedule 11 of the Criminal Procedure Code offences under Ss. 161 to 165, I.P.C . and offences punishable with imprisonment for life or imprisonment of 7 years and upwards are shown as cognizable offences. Under s. 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years. Therefore, an offence under s. 5 of the Prevention of Corruption Act is a cognizable offence. The words 'notwithstanding anything contained in the Code of Criminal Procedure, in the section merely carve out a limited exemption from the provisions of Criminal Procedure Code in so far as they limit the class of persons who are competent to investigate, and to arrest without a warrant. The mere fact that under the Act certain restrictions are placed as to the officers who are competent to investigate into the offences mentioned in s. 5A would not make those offences any the less cognizable. Therefore, the offences under s. 161 , 165 and 165A of the I.P.C. and s. 5 , Prevention of Corruption Act , are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non- cognizable when investigated by an Inspector of Police; nor can there be any question of these offences being cognizable if investigated under s. 156 , Cr.P.C . but not when investigated under s.. 5A, Prevention of Corruption Act . It is illogical to say that offences would be cognizable in certain circumstances and non-cognizable in certain other circumstances. Therefore, the reed for a sanction under S. 196A , Cr.P.C . does not arise. [824A-H; 825A-D; 827] <CITATION> , A.I.R. 1960 Mysore 242, <CITATION> , A.I.R. 1957 Madhya Bharat 3 and Public Prosecutor v. Sheikh Shariff, A.I.R. 1965 A.P. 372, referred to. <CITATION> , A.I.R. 1956 Rajasthan 37, Ram Bijhumal v. The State, A.I.R. 1958 Bombay 125 and <CITATION> , A.I.R. 1962 Bombay 263, approved. <CITATION> , A.I.R. 1970 Assam & Nagaland 43, disapproved. (3)The need to order re-investigation or to begin the trial again after the sanction under s. 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, do not arise at all. Hence, there is no question of quashing the charges on that ground. [827G-H] (4) Under s. 6 and 7(3) of the Criminal Law Amendment Act, 1952, and Ss. 235 and 239, Cr.P.C . the businessman (private individual) and the two army officers, (public servants) could be tried together. [829A- <CITATION> .  1 S.C.R. 194, followed. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 161 to 163 of 1970.

Appeals by certificate from the. judgment and order dated May 23, 1969 of <ORG> at Gauhati in Cr. Rev. Nos. 36, 39 and 46 of 1968.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent. <NAME>, for the respondents.

<NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by ALAGIRISWAMI, J.-Two of the appellants, Major <NAME> and Lt. Col. <NAME> are <ORG> officers and the appellant in the 3rd appeal, <NAME>, is a businessman of Gauhati. All of them were put up for trial before the Special Judge appointed under the Criminal Law Amendment Act 1952. One charge which was ,common to all the three of them was that between June 1962 and January 1963 all of them agreed to commit or cause to be committed offences under section 5(2) of the Prevention of Corruption Act, and of cheating punishable under section 420 of the Indian Penal Code, and these offences having been committed in pursuance of a conspiracy were punishable under section 120B of the Indian Penal Code read with section 5 (2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. <NAME>, the businessman was charged under section 420 I.P.C. as well as section 511 read with section 420 I.P.C. The two <ORG> officers were also charged with offences under section 420 read with section 5 (1) (d) of the Prevention of Corruption Act . The case was filed before the Special Judge on 28-6-1963 and the charge was framed on 13-2-65. After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed petitions under section 561A read with section 439 of Code of Criminal Procedure before <ORG> on 28-3-68, 1-4-68 and 10-4- 68 respectively for quashing the charges. A learned Single Judge allowed these petitions on 23-5-1969 and quashed the charges and the proceedings before the learned Special Judge. He did this on three grounds (1) that the officer who investigated the case was not competent to do so;

(2) that the offences that were being tried were noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 196A of the Code of Criminal Procedure, and (3) that in view of the enormous length of time between 2-2-63, the date on which the case was registered and 1-4-68, upto which date some witness had been examined, the last witness having been examined on 15-1-67, it entailed undue harassment to the accused persons and the proceedings have to be quashed to prevent further harassment, abuse of the process of the court and vexation to the accused persons. These three appeals have, therefore, been filed by <ORG> by certificate granted by <ORG>. We shall first of all deal with the question whether the officer who investigated into these cases was not properly authorized to do so. The officer was an Inspector of <ORG>. Under section 5A of the Prevention of Corruption. Act, before it was amended in 1964, no officer below the rank of the Deputy Superintendent of Police could investigate into offences punishable under sections 161 , 165 and 165A of the Indian Penal Code or under section 5 of the Prevention of Corruption Act without the order of a Presidency Magistrate or a Magistrate of the First Class. In this case the Inspector concerned had obtained the order of the First Class Magistrate of Tezpur. The argument before <ORG>, which was accepted by the learned Judge, was that as the offences of conspiracy were alleged to have been committed both at Tezpur as well as at Gauhati, the investigation based on the order of the Tezpur Magistrate alone was not a proper one. In other words, the argument was that unless the Inspector had been authorized to investigate not only by the First Class Magistrate of Tezpur but also by the First Class of Gauhati district, he could not have done so. The learned Judge referred to and relied upon the decision in <CITATION> (1). It was decided in that case that any First Class Magistrate appointed in a district can issue orders under section 5A of the Prevention of Corruption Act for investigation of a case. From this the learned Single Judge drew the conclusion that in respect of an offence said to have been committed at Gauhati as well as at Tezpur the order of the Tezpur Magistrate was not enough. He also relied upon the decision of <ORG> of Assam and Nagaland in <NAME> v. <ORG> ( 2 ) . This decision has been upheld by this Court in <CITATION> (3). But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid. That decision is. no authority for the proposition that where an offence is committed in more than one place the order of every Magistrate within whose. jurisdiction the offence or part of the offence was committed was necessary in order to (1) A. I. R. 1960 Mysore 242.

(2) I. L. R. 1969 Assam & Nagaland 275.

(3) A. I. R. 1971 S. C. 1836.

enable the investigation to be carried on. All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the ingredients of the offence took place. That criterion is amply satisfied in this case. On principle also such a contention seems to be devoid of any substance. The offence of conspiracy or for that matter any other offence might consist of a series of acts and incidents spread over the whole country. Very often one conspirator or one of the offenders might, not have even met the other conspirator or offender. To accept this contention would be to hold that the <ORG> should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of the offence has taken place. We have no hesitation in rejecting it. He also seemed to have had some doubt as to whether the order of the Magistrate of Tezpur produced before him was a genuine one. To say the least, the attitude of the learned Judge is most surprising. To put it in his own words :

"It does not appear that any order of a Magistrate form part of the record. But at the time of hearing, such an order was placed before me on behalf of the Prosecution. The application on which the order is said to have been passed by the Magistrate appears to have been addressed to <ORG> first class at Tezpur, wherein it was stated that for preoccupation of the Deputy Superintendent of Police, the investigation was sought to be made by an Inspector (A Police. The petition is unnumbered undated. What appears curious is that although the application was made before a Magistrate of the first class, the order passed is supported by a seal of the District Magistrate, <NAME>. The order of the Magistrate runs as follows :- "Paper and F.I.R. seen. Shri H. B. D. Baijal, Inspector is permitted to investigate the case."

There is an illegible signature with date 4-2- 63 and below the signature the official designation has not been stated. It appears that no order-sheet of the Magistrate has been produced in this regard and in above circums- tances, it cannot be unequivocally said that this document wag obtained in due course of business in compliance with section 5A of the Prevention of Corruption Act. Even assuming that the order is free from doubt, learned counsel appearing for the petitioners has urged before me that since the venue of the offences has been clearly stated in the charge, the permission given by the Magistrate for investigation of the offences at Gauhati is not valid."

8 23 If he had any doubts about the genuineness of the order of sanction it was his duty to have gone into the matter thoroughly and satisfied himself whether the order was genuine, or not. It was his duty to have given a categorical finding regarding the matter. There should have been no room allowed for any doubt or suspicion of any underhand dealing and unfair conduct in a matter of this kind. It was even alleged on behalf of the, respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution. If that was so it proves a woeful lack of care on the part of the learned Judge. He should have retained the order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not. We have before us the order of the Superintendent of <ORG> dated 2-2-63 entrusting the investigation to Inspector <NAME> and directing him to obtain the necessary permission from a competent Magistrate for doing so. We have also been shown the papers relating to the prosecution, papers given to the accused under section 173 of the Code of Criminal Procedure. Item 71 of those papers relates to the order of sanction dated 4-2-1963 given by the Magistrate of Tezpur authorizing the Inspector of the S.P.E. to investigate. Thus, there is no doubt at all that Inspecor <NAME> had been authorized to investigate into, this case. It only shows rather superficial way the learned Judge chose to deal with this matter.

The next question is whether offences under section 161 , 165 and 165A of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act are cognizable or non- cognizable offences. This becomes important for the purpose of deciding whether a sanction under section 196A is necessary. The sanction necessary under section 6 of the Prevention of Corruption Act and section 197 of the Code of Criminal Procedure has been accorded by <ORG>. What was contended by the respondents before <ORG> and was accepted by that <ORG> was that these offences being non-cognizable offences a sanction under section 196A(2) is necessary and that prosecution without such sanction is bad. Cognizable offence is defined in section 4(1) (f) of the Code of Criminal Procedure as an offence for which a police officer, within or without the presidency towns, may in accordance with the second schedule, or under any law for the time bring in force, arrest without warrant. The argument which appealed to the learned Judge of <ORG> was that as under section 5A of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences punishable under section 161 , 165 or 165A I.P.C . and section 5 of the Prevention of Corruption Act, they were not offences for which any police officer can arrest without warrant, and therefore, they are not cognizable offences. The same argument was repeated before this <ORG> 'by Mr. <NAME>, emphasising that "a police officer" means "any police officer" and as any police officer cannot, under section 5A of the Prevention of Corruption Act, arrest without warrant but only officers of and above the rank of Dy. Superintendent, the offences mentioned in that section are noncognizable offences. If we pursue the same line of argument and look at the definition of non-cognizable offence in section 4(1)

(n) which defines non-cognizable offence as an offence for which a police officer, within or without a Presidency-town, may not arrest without warrant, it might mean that as these are cases where i police officer of the rank of Dy. Superintendent and above can arrest without warrant these are not non-cognizable offences either. How can there be a case which is neither cognizable nor-cognizable ? It was sought to be argued that these offences would 'be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non- cognizable when they are investigated by officers below the rank of Deputy Superintendents. We fail to see how an offence would be cognizable in certain circumstances and non-cognizable in certain other circumstances. The logical consequences of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police. One supposes the argument also implies that the fact that an officer- below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section 5A would not make any difference, to this situation. We, do not consider that this is a reasonable interpretation to place. Under Schedule It of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences. At the end of that Schedule offences punishable with death, imprisonment for life or imprisonment for 7 years and upwards are also shown as cognizable offences. Under section 5 (2) of the Prevention of Corruption Act the sentence may extend to seven years. Therefore, an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule II to the Code of Criminal Procedure a cognizable offence. Therefore, the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would not make those offences any the less cognizable offences. Tile words "notwithstanding anything contained in the Code of Criminal Procedure" found at the beginning of section 5A(1) merely carve out a limited exemption 'from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons- who 82 5 are competent to investigate into offences mentioned in the section and to arrest without a warrant. It does not mean that the whole of the Code of Criminal Procedure. including Schedule II thereof, is made inapplicable. Under section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions therein contained. Also, all offences under any other law (which would include the Prevention of Corruption Act ) shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time bring in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing, with such offences. Section 5A of the Prevention of Corruption Act should be related to this provision in section 5 (2) of the Code of Criminal Procedure, which limits the application of the provisions of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The only change which section 5A of the Prevention of Corruption Act makes is with regard to officers competent to investigate and arrest without warrant; in all other respects the Code of Criminal Proce- dure applies and, therefore, there is no doubt that all offences mentioned in section 5A of the Prevention of Corruption Act are cognizable offences.

<ORG> seems to have taken a line of its own in this matter. <CITATION> (") curiously enough the Bench, of which the learned Judge who dealt with this case was a member, took the view that though an offence under section 161 is a cognizable offence, if investigations were made under section 156 of the Code of Criminal Procedure there would be no need for a sanction under section 196A of the Code of Criminal Procedure, and there can be a conviction under section 161 of the Indian Penal Code, but if the investigation is made under section 5A of the Prevention of Corruption Act it will be an investigation into a non-cognizable offence and there should be a sanction under section 196A for the trial following such investigation. For this conclusion the decision of this Court in <CITATION> (2) was relied upon. We can see nothing in that case to support this conclusion. Nor are we able to see how if the investigation into an offence of misconduct punishable under section 5(2) is done by a police officer of high rank the offence is cognizable and if investigated by ail officer of a lower rank it is non-cognizable. That cannot be a proper criterion for deciding whether an offence is cognizable or non-cognizable. Unless there are clear and compelling reasons (1) A.I.R 1980 Assam & nagaladd 43.

(2) A. I. R. 1965 S. C. 196.

5-L797Sup.C. 1./73 to hold otherwise the division of offences given in the Code of Criminal Procedure as cognizable and non-cognizable should be given effect to. When the same Code makes sanction under S. 196A necessary for trial of non-cognizable offences it clearly contemplates non-cognizable offences as defined in the Code . There is no justification for relying upon extraneous considerations and far-fetched reasoning in order to get over the effect of these provisions. We may now refer to certain decisions of various High Courts on this point. <CITATION> (") it was held "The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment at the hands of subordinate police officers) under the proviso. to S. 3 of the said Act cannot lead to the conclusion that such offence is non-cognizable."

<CITATION> ( 2) it was held : "The provisions of S. 3 , Prevention of

Corruption Act can only have one meaning, and the meaning is that an offence under S. 165A of the Penal Code has to be deemed to be a cognizable- offence for the purpose of ,the Code of Criminal Procedure. It is only because the <ORG> enacted S. 5-A of the Prevention of Corruption Act that, so far as the Presidency town of Bombay was concerned, no police officer below the rank of a Superintendent of Police could in the case of an offence under S. 165-A of the Penal Code, investigate it without the order of a Presidency Magistrate. There is nothing in the language of S. 5-A which would suggest that an offence under S. 165-A of the Penal Code is not to be treated as a cognizable offence."

<CITATION> () it was held that "offence under S. 161 , I.P.C . is a cognizable offence. Its nature is not Affected by either S. 3 or S. 5A of the Prevention of Corruption Act. The requirement that in a cognizable offence, a police officer should be able to arrest without warrant, is without any limita- tion and section 5A cannot be split. up to mean that an offence can be cognizable in reference to one officer and not in reference to another."

(1) A. I R. 1956 Rajasthan 37. (2) A. I R. 1958 Bombay 125. (3) A. I R. 1962 Bombay 263.

8 2 7 The learned Judges specifically dissented from the decision in <CITATION> ("). <CITATION> (2) it was held that "these offences cannot be treated as non-cognizable offences when investigated by an officer below the rank of Deputy Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presi- dency Magistrate or a Magistrate of the First Class. In the same way, offences under section 5 of the Act cannot be treated as non-cognizable even when investigated by a low rank officer. Thus, the provision in S. 5A is of the nature of a special provision which applies to offences specified therein which are cognizable offences including those under section 5 under all circumstances." They also referred to the decision in <CITATION> (supra) to the effect that an offence under S. 161 I.P.C. and under sub. s. 2 of S. 5 , Prevention of Corruption Act is cogni- zable so far as officers of the rank of a Deputy Superintendent of Police and above are concerned, but so far as the officers below the rank of Deputy Superintendent of Police are concerned the said offences are non-cognizable in so far as they cannot investigate them without the permission of a Magistrate of' the First Class, and held that :

"the learned Judges only intended to emphasise the provision in S.5-A and chose to refer to it as a non-cognizable aspect of the offences comprised in the Act and to describe that aspect also as non-cognizable for the limited purpose of the provision in S. 5-A ."

Thus, the preponderance of opinion of the various <ORG> is in favour of the view we are taking. We are, therefore, clearly of opinion that the offences under sections 161 , 165 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non-cognizable when investigated by an Inspector of Police. Nor can there be any question of those offences being cognizable if they are investigated under section 156 of the Cr. P.C. but not when investigated in accordance with the provisions of section 5A of the Prevention of Corruption Act. The question, therefore, of the need for a sanction under section 196A does not arise. Consequently, the need to order re-investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, reasons that weighed with the learned Single Judge for quashing the charges, does not arise. It may incidentally be mentioned that the respondents took nearly three years before they moved the High (1) A. 1. R. 1957 Madhya Bharat 43.

(2) A. 1. R. 1965 A. P. 372.

Court for quashing the charges and are, thus, to a considerable extent responsible for the delay. On behalf of Mr. <NAME> it was argued that he cannot be tried along with the two <ORG> officers. Under section 6 of the Criminal Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under section 161 , 165 or 165A of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act, and under sub-section(3) of section 7 of the same Act a special judge, when trying any case, may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, and under section 239 persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence, may be charged and tried together. <CITATION> .(1) this Court observed :

"No doubt, the offence mentioned in charge No. 1 is alleged to have been committed not by _just one person but by all the accused and the question is whether all these persons can be joint tried in respect of all these offences. To this kind of charge S. 239 would apply. This section provides that the following persons may be charged and tried together, namely :

(1) persons accused of the same offence committed in the course of the same transaction;

(2) persons accused of an offence and persons accused of abetment or an attempt to commit such an offence;

(3) persons accused of different offences committed in the course of the same transaction.

Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1."

In that case the first accused was a public servant and the other accused were private individuals to whom the first accused was alleged to have sold transport permit books intended to be issued (1) [1962] 1 S. C. R. 194.

to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco. This Court also pointed out that "sub-s. (3) of s. 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in s. 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial, and clearly, therefore, accused no. 1 could be tried by the Special Judge for offences under s. 120B read with ss. 466, 467 and 420 J.P.C., and similarly the other accused who are, said to have abetted these offences could also be tried by the Special Judge." There is, therefore, no objection to Mr. <NAME> being tried along with the two <ORG> officers. Though in the revision petitions filed before <ORG> the question as to whether on the evidence produced before the Special Judge the offences with which the respondents had been charged could be said to have been prima facie established, was raised, the learned Single Judge has not dealt with that question apparently because it was not argued before him. We do not, therefore, propose to say anything about the merits of the case.

It is not necessary to refer to the, decision in <NAME> v. state of Punjab(1) and <CITATION> (2) which are relied upon on behalf of the appellants in the view that we have taken that all the offences with which the, accused are charged are cognizable offences, and therefore, the question whether charges which require sanction under s, 196A could be tried alongwith charges which did not require such sanction and the entire charges are vitiated for want of sanction, as held by the learned Single Judge, does not arise.

The appeals are allowed and the order of the learned Single Judge is set aside. The Special Judge will now proceed to deal with the cases and dispose of them as expeditiously as possible as the matter has been pending for a long time.

<ORG> allowed.

(1) [1967] 3 S. C. R. 439. (2) [1968] 2 S. C. R. 528. 83 0


IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 4849-4850 of 2000 Sita Ram Bhandar Society, New Delhi ....Appellant Vs. Lt. Governor, Govt. of N.C.T. Delhi & Ors. ......Respondents JUDGMENT

<NAME>J.

1. These appeals are directed against the judgment of the Division Bench of <ORG> dated 2nd September 1998 dismissing the writ petitions. The facts are as under:

2. On 13th November 1959, a Notification was issued by the Chief Commissioner of Delhi under 4 of the Land Acquisition Act (hereinafter called the "Act") notifying the Government's intention to acquire 34070 acres of land for the "Planned ...2/...

CA Nos.4849-4850/2000 Development of Delhi". This notification had, within its ambit, agricultural land belonging to the appellant society, bearing Khasra No. 157 in Village Lado Sarai, Tehsil Mehrauli, Delhi measuring 8 Bighas and 11 Biswas or 8620 sq. yards equivalent to 1.8 acres. The appellant filed objections under Section 5A of the Act on the 10th December 1959 submitting that the land be exempted from the proposed acquisition. It pointed out that the appellant body was a registered trust and a religious body managing three temples in Pilani, Rajasthan and several gardens, water tanks etc. having religious significance. The objections raised were apparently found without merit whereafter the Chief Commissioner issued a declaration under Section 6 of the Act which was published on 16th May 1966 pertaining to 2153 Bighas 2 Biswas corresponding to about 448 acres. The Collector, Land Acquisition also rendered his award on 19th June 1980 clarifying that it pertained only to 1996 Bighas 18 Biswas leaving out an area of 156 Bighas 4 Biswas for the time being CA Nos.4849-4850/2000 as it was built up and that the award for this area would be given later. The appellant's property Khasra No.157 was, however, included in the award of 19th June, 1980. It appears that pursuant to the award possession of 1933 Bighas and 2 Biswas was taken by the Collector, Land Acquisition on the 20th June 1980 and further handed over to the beneficiary department. It was, however, observed in the proceedings of 20th June 1980 that the possession of the balance area of about 61 Bighas would be taken after the removal of the structures with the help of the demolition squad. On the 29 th July 1980 a Notification under Section 22 (1) of the Delhi Development Act, 1957 was issued by the Central Government, placing the acquired land at the disposal of <ORG> for the planned development of Delhi. At this stage, the appellant filed CWP No.1068 of 1980 in <ORG> challenging the validity of the Notification under Section 4 and Declaration under Section 6 of the Act. This petition was dismissed in limine on the 18 th August 1980. The appellant thereupon preferred Special CA Nos.4849-4850/2000 Leave Petition in this Court and after leave was granted the appeal was registered as C.A. No. 1738 of 1981. While the appeal was still pending, the appellant filed Writ Petition No.2220/1981 under Article 32 of the Constitution of India in <ORG>. It appears that an interim order was made by <ORG> in these proceedings on 15th of July 1981 staying dispossession of the appellant from the property in dispute and the said order was confirmed on 16th September 1982. Both the Civil Appeal and the Writ Petition aforementioned were, however, dismissed by this Court on the 20th July 1993. It also appears from the record that while the aforementioned two matters were pending in this Court, the appellant filed Suit No. 1226 of 1992 on the Original Side of <ORG> praying for an injunction against the respondents, including <ORG>, that no structure be demolished and that no interference be made with the plaintiff's possession and management of the Suit land. An interim injunction was also sought and obtained in these proceedings. It is the appellant's case that though the CA Nos.4849-4850/2000 aforesaid Suit was transferred to <ORG> in Delhi on account of the revision of the pecuniary jurisdiction of <ORG>, the said interim injunction still continued to operate, but despite the interim orders <ORG> continued to impinge on the appellant's property on which a Contempt Petition was filed in the High Court, which in its order dated 19th May 1992, directed the respondent authorities to ensure compliance with <ORG> order dated 2nd April 1992 made in the civil suit. It is further the case of the appellant that some time later <ORG> again tried to interfere with the appellant's property on which yet another Contempt Petition No.36 of 1993 was filed and the same is said to be pending. The appellant, however, continued to be persist in its efforts to save the acquired land and at this stage filed C.W.P.No.700 of 1994 in <ORG> on 28th January 1994 challenging, inter-alia, the constitutional validity of Section 22 of the Delhi Development Act, whereunder the acquired land had been handed over to the <ORG>, and also praying for the CA Nos.4849-4850/2000 allotment of an alternative site in lieu of the acquired land. This writ petition was dismissed as withdrawn on September 8, 1995 the prayer of the counsel for the petitioner (the present appellant) in the following terms:

"Mr. <NAME> says, in view of the order dated 29.11.94, he would not press this petition at this stage and would apply for allotment of alternative land in the institutional area.

Dismissed as withdrawn. However, we will make it clear that allotment of the alternative land be made to the petitioner as per policy."

3. Still dissatisfied, the appellant filed W.P. No. 623 of 1995 in <ORG> challenging some facets of the alleged violation of the Master Plan of 2001 which had statedly made the entire proceedings for the planned development of Delhi incohate and which had rendered the acquisition without any authority of law . This matter came up before <ORG> after notice on 20th February 1995 on which <ORG> observed that the petitioner was seeking two distinct prayers in the Writ Petition, (1) that the land which had been CA Nos.4849-4850/2000 acquired under the Land Acquisition Act should be released from acquisition and (2) that the <ORG> should not be permitted to use the aforesaid land for a purpose other than that postulated in the Master Plan and the Zonal Development Plan and as the two prayers were mutually distinct and pertained to different causes of action, one writ petition was not maintainable. On this, the learned senior counsel for the appellant, Mr. <NAME> stated that he would file two separate writ petitions for which liberty was granted and the papers of CWP No. 623 of 1995 were accordingly returned to the counsel. The appellant thereupon moved two writ petitions i.e. W. P. Nos. 1628/1995 praying that the respondent <ORG> be restrained from taking over possession of the land and Writ Petition No. 1629/1995 seeking to challenge the land acquisition proceedings which had been initiated by the Notification under Section 4 and Declaration under Section 6 of the Act in the year 1959 and 1966 respectively and also pleading that as the possession had not been taken, the land be released under Section 48 of the Act. The Division CA Nos.4849-4850/2000 Bench while dealing with the question of possession held that the writ petitioner had only relied on two stray entries in two Khasra Girdawaris for the period 13th October 1980 to 11th March 1981 which had recorded the land to be "Gair Mumkin Kotha Pukhta and Char Diwari" and that this entry was meaningless in the light of the fact that the land had been described as "Rosli" (agricultural) and not a built up property in the award No.36/80-81 dated 19.6.1980 and that in any case the plea appeared to be an after thought as it had not been taken by the petitioner though it was available at the time when Writ Petition No. 1068/1980 (in <ORG>) and Writ Petition No.2220/1981 had been directly filed in this Court. The Court further held that it was clear from the proceedings recorded by <NAME>, Land Acquisition, on 20th June 1980 in the presence of a large number of Revenue Officials that possession had indeed been taken over on that day after demarcation had been made with respect to 1933 bighas 2 biswas, including the land belonging to the appellant, and that boundary pillars had been affixed CA Nos.4849-4850/2000 round the demarcated land and that the possession had further been handed over to <NAME>, Tehsildar on 20th, 21st, 23rd and 24th of June 1980. The Court also noted that the proceedings aforementioned were witnessed as to their authenticity by <NAME>, and the two <ORG> Officials, <NAME> and <NAME>. The Division Bench in this background observed that possession had, in fact, been taken over after appropriate proceedings. The two writ petitions were accordingly dismissed by the Division Bench of <ORG> vide the impugned judgment leading to the present appeals as a consequence.

4. At the very outset, Mr. <NAME>, the learned senior counsel for the appellant has candidly stated at the <ORG> that the appellant was no longer challenging the acquisition and the relief claimed in W.P. 1629/1995 was, therefore, not being pursued in this appeal. He has, however, prayed with the greatest emphasis, that in so far as the claim arising out of W.P. No.1628/1995 was concerned it was clear from the record that possession of the appellant's land i.e. 1 acre 8 CA Nos.4849-4850/2000 Biswas continued to remain with the appellant despite the findings to the contrary recorded by <ORG>, and as such it was open to the Government to withdraw from the acquisition if it so desired, under Section 48 of the Act.

5. In this background, Mr. <NAME>, has raised three arguments before us during the course of hearing. He has first pointed out that it was the positive case of the appellant that the land in dispute was encircled by a boundary wall and as such possession thereof could be taken only after entering the land and not by any symbolic or paper possession. As a corollary, it has been submitted, that there was no material on record to show that the actual physical possession had been taken as would preclude the withdrawal of the acquisition under Section 48 of the Act. In this connection, the learned counsel has placed reliance on <CITATION> .  and <NAME> Anr. Vs. State of U.P. & Ors.  which had been subsequently followed in <CITATION> . . It has finally been CA Nos.4849-4850/2000 submitted that there was ample evidence on record to show that the property in dispute was, in fact, surrounded by a wall and had some other structures as well, and in view of the positive stand taken by the Land Acquisition Collector in his award dated 19th June 1980 that the possession of the area covered by structures would be the subject matter of a supplementary award, the very basis of the judgment of <ORG> that the possession had been taken on the 20th June 1980 was erroneous.

6. Mr. <NAME> and Mr. <NAME>, the learned counsel appearing for the <ORG> and <ORG> respectively have controverted the submissions and have pointed out that the appellant had, for almost 30 years, been able to scuttle the development of the area by taking piecemeal stands in the writ petitions and civil suits from the year 1980 onwards and though the aforesaid matters had been rejected with positive findings that possession had been taken, and that there was no wall or structure on the land in question. It has also been submitted that the proper procedure had been adopted by the CA Nos.4849-4850/2000 Naib Tehsildar and that the possession had been taken over as per law on the 20th June 1980 and there was ample evidence to this effect which had been considered by <ORG>.

7. We have heard the learned counsel for the parties very carefully. The Act provides a machinery for the acquisition of the land. An acquisition is set in motion by a Notification under Section 4 when it is proposed to acquire any land for public purpose and Section 5A envisages the filing of objections with regard to the proposed acquisition. After the objections under Section 5A have been considered and been found without merit, a declaration under Section 6 of the Act is published that the land is indeed required for a public purpose. Section 9 of the Act provides that after all the proceedings and certain other formalities have been completed the Collector shall give public notice that the <ORG> intends to take possession of the land and calling upon the persons interested to file their claims for compensation. The matter is then enquired into by the Collector who renders his award under Section 11 of the Act and possession is taken by CA Nos.4849-4850/2000 the Collector under Section 16 on which the land vests absolutely in the <ORG> free from all encumbrances. It is the case of the respondent that all the procedures had been followed and that possession had been taken under Section 16 on the 20th June 1980, and as such, the question of its release under Section 48 of the Act did not arise, as this provision gives "liberty to withdraw from the acquisition of any land of which possession has not been taken". The question raised by Mr. <NAME> is that as the area in question was very extensive i.e. about 1933 bigas and the land belonging to the appellant was surrounded by a boundary wall, symbolic possession was meaningless and some more positive action was called for. To support this view he has relied on the three judgments cited earlier. We find, however, that the aforesaid judgments, in fact, help the case of the respondent rather than the other way around. In <NAME> case, which was heard by three Hon'ble Judges of this Court one of the Hon'ble Judges (<NAME>,J.) held that the principles underlying Order 21, Rules 35, 36, 95 and 96 of the <ORG> prescribing the modes of CA Nos.4849-4850/2000 delivery of possession including symbolic and actual could be applied to proceedings under the Act but the other two Hon'ble Judges (<NAME> and <NAME>,<NAME>.) held that the said provisions could not be applied to proceedings under the Act and that actual possession thereof was required to be taken. In this background, the two Hon'ble Judges observed as under:-

"We think it is enough to state that when the <ORG> proceeds to take possession of the land acquired by it under the Land Acquisition Act , 1894, it must take actual possession of the land, since all interests in the land are sought to acquired by it. There can be no question of taking `symbolical' possession in the sense understood by judicial decision under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the <ORG> is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. There cannot be an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in CA Nos.4849-4850/2000 our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking on possession. "

8. In <NAME> case (supra) the basic issue was as to whether the land which was the subject matter of acquisition could be acquired in view of the State policy that Abadi land was not to be acquired. It is in this connection, the Court observed that there appeared to be no conclusive evidence that possession had been taken from the land owner, and the matter was left open for the land owner to approach <ORG> under Section 48 of the Act to have land released. In <NAME>'s case (supra), a reference was made to the judgment in <NAME> case (supra) and it was once again reiterated that the procedure for taking possession would depend upon the nature of the land and the extent thereof. A cumulative reading of the aforesaid judgments would reveal that while taking symbolic and notional CA Nos.4849-4850/2000 possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principal in mind, this Court in <CITATION> ) by Lrs. AIR 1996 SC 3377 after considering the judgment in <NAME> case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in <NAME> case had been rendered and held as under:

"It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the <ORG> in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land."

CA Nos.4849- <CITATION> . AIR 1996 SC 1239 yet again the question was as to the taking over of the possession of agricultural land and it was observed thus:

"It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976 by which date possession of the land had been taken. No doubt, <NAME> has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the Panchnama in the presence of <NAME> and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or un lawful possession."

9. It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswas and to take possession thereof and that a pragmatic approach has to be adopted by the <ORG>. It is CA Nos.4849-4850/2000 also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a <ORG> which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.

10. The question arises as to whether in the face of the above observations, the procedure adopted by <NAME>, Land Acquisition <NAME> was the correct one. The Award was rendered in the present matter on the 19th June 1980. As per the possession proceedings (Panchnama) recorded by <NAME> dated the 20th June 1980, possession of 1933 bighas 2 biswas of land had been taken over and handed over to <ORG> on the 21st June 1980, 23rd June 1980 and 24th June 1980. In the Panchnama it was also observed that the land had been demarcated and pillars had been affixed and that the physical possession had further been handed over to <NAME>, Tehsildar, the representative of the beneficiary department. Admittedly, Khasra No.157 was covered by this document. It is CA Nos.4849-4850/2000 recorded that the possession of the land under the built up area of 160 bighas 6 biswas could not be handed over and the details of this land have also been provided in the aforesaid document. Khasra No.157 does not come in this category. Mr.<NAME> has, however, emphasized that some material documents which show the possession had not been taken on 20th June, as alleged, had been ignored by <ORG> which he has referred us to <ORG> for the years 1980-81 and 1981-82 showing the existence of <ORG>. He has, accordingly, submitted that the observations in the award that the appellant's land was "Rosli" was incorrect in the light of this record. We find absolutely no merit in this plea. A Khasra Girdwari which is a mere crop inspection report entered twice a year (Kharif and Rabi crops) has no presumption of truth attached to it. Even otherwise the state of the land as on the date of the Notification under Section 4 of the Act (which is 13th November 1959) would be the relevant date as to the nature of the land and a crop inspection report 20 years later cannot be taken as proof of some facts said to CA Nos.4849-4850/2000 exist in the year 1959. Mr. <NAME> has also stressed that from the Award itself it was clear that the wall standing on Khasra No.157 had been assessed to a compensation of Rs.420/- and as such the observations in the award that land was agricultural was erroneous. Mr. <NAME> has, however, pointed out that the part of the Award to which reference has been made by Mr. <NAME> is captioned as "Wells and Structures' and that a reference to a wall in the body is typographical error. We reproduce the relevant portion of the award herein under:

Wells and Structures "The land under acquisition has number of wells, water channel and structures. The Assistant Engineer (Valuation) has made the rate assessment of each of these items to which I agree and award accordingly subject to the verification at the time of possession as per details given as under: -

Value Kh.No. Item Assessed Well, Drain, Water 555/2/2 tank Rs.6920/-

254 Well Structure Rs.2490/- 577/430 -do- Rs.2130/- 217 Well Structure Rs.2730/- 100 Structure Rs.260/- 670/27 -do- Rs.3320/- 15 Well Rs.4030/- CA Nos.4849-4850/2000 Structure/Room Well, Water tank, 29 Room & Structures Rs.3490/- Well, Structures, Water tank, rooms & 139 drains 4600/- Well Structures, 160 room & drain Rs.2750/- 394 Well Structures Rs.4690/- 399 -do- Rs.2380/- 242 Structure Rs.540/- 149 -do- Rs.260/- 580/148 Wall Rs.1264/- 157 -do- Rs.420 Well, Water Tank, 172 drain Structure Rs.7960/- 298 -do- Rs.4890/- 333 wells, Structure Rs.5350/- Structure & 20 Compound wall Rs.3300/- Well, Water drains, 195/2 Water tank & room Rs.7530/- 321 -do- Rs.7250/- Well, Water tank 478 drains & rooms Rs.6665/- Room, water tank, 321 drain Rs.1125/- 478 Drain Rs.360/- Well, water tank, 92 drain, Khurli, rooms Rs.7260/- Well, water tank, drain khurli, rooms, 155 verandah Rs.6720/- Well, Water tank, 597/202/264 Room Rs.2700/- Well, Water tank, Water Channel 455 room Rs.2790/- Well, Water tank, 86 drains, rooms Rs.3320/- Value No. Item assessed 514 Well Rs.1720/- 464 -do- Rs.2850/- 688/518/119/2 -do- Rs.2290/- 189 -do- Rs.1820/- 436 Well, structures Rs.1020/- 210 Well Rs.2060/- 453 -do- Rs.5650/- CA Nos.4849-4850/2000 Total: Rs.1,21,189-00 There are water channels running

through <ORG>. Nos. 228, 635/251, 254, 253, 255, 250, 263, 597/262, 261, 269, 434, 435, 440, 442, 443, 444, 445 & 446. The Naib-

<ORG> has made a detailed valuation to which I agree and award Rs.2870/- as compensation as these channels."

11. A reading of the above extract reveals that wells, and structures connected with wells, and irrigation facilities have been referred to therein and an independent wall is not even remotely the subject matter. Mr. <NAME> has, however, seriously objected to this explanation by submitting that no plea doubting the accuracy of the document having been raised in the counter affidavit, the respondents were now precluded from making this submission. We, however, feel that in the light of the context in which the entire matter has been dealt with in the Award, there can be no doubt that the entry `wall' should be read as `well' vis-`-vis Khasra No.157. There is yet CA Nos.4849-4850/2000 another circumstance, perhaps even more relevant. We find that no question had ever been raised by the appellant with regard to the presence of a wall in the objections filed under Section 5A or even in the responses filed to the notices under Section 9 of the Act and the only prayer was that the land be exempted from acquisition (Item no.36). These omissions become more significant as several other landowners had claimed compensation for the superstructures that were existing on the acquired land. It is also equally significant, as pointed out by Mr. <NAME>, that no question had ever been raised by the appellant with regard to the existence of a wall or superstructure in any of the litigations prior to the present set of Writ Petitions. Mr. <NAME> has, however, referred us to the objections dated 15th November 1966 showing the existence of a wall. These objections are, to our mind, meaningless as they had not been filed in response to the notification CA Nos.4849-4850/2000 under Section 4 which had been published in the year 1959 and were filed after the declaration under Section 6 had been made and are, therefore, an obvious after thought. It also bears notice that despite the claim under this document, no plea with regard to the existence of a wall had been raised at any stage till the filing of the present petitions in the year 1995.

12. Mr. <NAME> has, with great emphasis, pointed out that from the affidavit dated 30th July 1996 sworn by Mr. <NAME>, Under Secretary, <ORG>, it was clear that the appellant continued to remain in possession on account of the stay of dispossession granted by <ORG> on 15th July 1981 in WP No. 2220/1981 and the confirmation of the said order on 16th September 1982 and as such the stand of the appellants that possession had been taken was not correct. We have, however, already observed that possession had been taken between 20th and 24th June 1980, and the acquired land thus stood vested in the State CA Nos.4849-4850/2000 free from all encumbrances under Section 16 of the Act. It is also relevant that the afore-referred writ petition was dismissed meaning thereby that the said order should automatically be vacated as well. Even assuming for a moment that the petitioner had re-possessed the acquired land at some stage would be of no consequence in view of the provisions of section 16 ibidem. In <NAME> case (supra) one of the arguments raised by the land owner was that as per the communication of the Commissioner the land was still with the land owner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the land owner had re-entered the acquired land immediately after its possession had been taken by the government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under:

"This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and CA Nos.4849-4850/2000 became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting."

To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons, (1) that the suits/petitions were ultimately dismissed and (2) that the land once having vested in the <ORG> by virtue of Section 16 of the Act, re-entry by the land owner would not obliterate the consequences of vesting.

12. We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from the 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilize all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the CA Nos.4849-4850/2000 conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter. The appeals are, accordingly, dismissed with costs which are determined at Rupees two lacs. The respondents, shall, without further loss of time proceed against the appellant.

..................................J. (Dalveer Bhandari) .................................J.

(<NAME>) New Delhi, Dated: September 15, 2009