<NAME>, J.

1. Heard the learned Counsels appearing for the parties concerned.

2. This contempt petition has been filed praying that this Court may be pleased to punish the respondent for wilful disobedience of the order passed by this Court, on 10.2.2005, in W.P.M.P. No. 3375 of 2005, in W.P. No. 11541 of 2004, dated 10.2.2005.

3. It is submitted that a writ petition in W.P. No. 11541 of 2004, had been filed before this Court on behalf of the petitioners challenging the impugned order No. 289/Special Cell/ADM/2004, dated 27.1.2004.

4. The writ petition had been admitted by this <ORG>, on 27.4.2004. During the pendency of the writ petition, the first respondent, through his men, had attempted to lay a road in the land belonging to the petitioners, on 10.1.2005. Therefore, the petitioners had been constrained to file a writ miscellaneous petition in W.P.M.P. No. 3375 of 2005 in W.P. No. 11541 of 2004, praying for an order of injunction restraining the first respondent and his men from trespassing into the lands belonging to the petitioners and laying a cement road or dealing with the same in any manner till the disposal of the writ petition.

5. It has been further stated that when the writ miscellaneous petition W.P.M.P. No. 3375 of 2005, in W.P. No. 11541 of 2004, was taken up for hearing, on 10.2.2005, the learned Counsel appearing for the respondents had brought to the notice of this <ORG> paragraph 5 of the impugned order, dated 27.4.2004, wherein it is stated that the Government had dropped the entire proposal to lay a road on the lands belonging to the petitioners.

6. Based on the submissions made by the learned Counsel appearing for the respondents, this <ORG> had passed an order as follows:

5. Learned Government counsel for Pondicherry represents that in the impugned order itself it was stated that <ORG> had pre-closed the proposed work of laying road on the petitioners' land and the entire proposal has been dropped and reiterated the same in his oral arguments.

6. There seems to be apprehension in the minds of the petitioners and it cannot be said that there is no basis for the same and having regard to the facts and circumstances, there shall be an order of interim injunction as prayed for till the disposal of the writ petition.

7. It has been further stated by the petitioners that in spite of the orders passed by this Court, the first respondent, through his men, had trespassed into the lands belonging to the petitioners on the night of 24th and 25th of March, 2005 and completed the laying of the road on 26th of March 2005.

8. It has also been stated that the first respondent is the sanctioning authority for laying of roads and the second respondent is the approving authority for the same and the third respondent is the work allotting authority for laying of roads in Pondicherry. The road was laid in the petitioners' land as a part of the contract work granted for laying of road in the adjacent area, namely, Kathirgamam, Ananda Nagar. In spite of the order of interim injunction granted by this <ORG>, the respondents have laid the road defeating the rights of the petitioner, who is a handicapped senior citizen with 80% disability. Thus, the respondents had wilfully disobeyed the orders passed by this <ORG>, on 10.2.2005, committing contempt of <ORG>.

9. In the counter affidavit filed on behalf of the first respondent, he has tendered his unconditional apology in the event this Court finds that the respondent had committed contempt of Court by any act or omission.

10. It has been further submitted that poor residents of Thattanchavadi colony in R.S. No. 228/9 pt. 10pt. & 11 pt. had requested <ORG> to provide Toilet facilities and concrete pavement in the locality under MPLAD Scheme. Based on the said request, tenders were called for and work order was placed with the Contractor <ORG>, on 7.12.1999. During the last week of January, 2000, the Contractor had started earth filling. While so, the petitioners had claimed that the lands in R.S. No. 228/10, 11 were belonging to them. Pursuant to the claims made by the petitioners, the works started earlier were pre-closed and the earnest money deposit had been refunded to the Contractor. <ORG> has not laid any road in the private land bearing R.S.Nos.228/10 and 228/11 in Thattanchavadi village, before or after the issuing of orders by this <ORG> in W.P.M.P. No. 3375 of 2005 in W.P. No. 11541 of 2004.

11. <ORG> of <ORG> is in-charge of carrying out road works in Thattanchavadi village of Pondicherry only in respect of the roads belonging to the <ORG>. The Executive Engineer of the said division had categorically stated that they have not laid any road in the private land bearing R.S.Nos.228/10 and 228/11, Cadaster No. 1736 pt. situated in Thattanchavadi village, before or after the orders were issued by this Court, as alleged by the petitioners.

12. It has also been submitted that Oulgaret Municipality in which the land in question is situated had also reiterated that they have not provided any road facilities till date on the petitioners' lands, since the road portion had not been handed over by the owner of the land to the Municipality.

13. It has also been submitted that on enquiry conducted by the <ORG>, it was noticed that the residents of the locality had unanimously decided to lay some roads by mutual contributions by way of collecting donations through their madar sangam. The residents are possessing ration cards and their huts have been provided with water and electricity connection by the concerned authority. The Sub Divisional Magistrate-cum-Deputy Collector (Revenue)-North, Pondicherry, had inspected the land and had reported that there were 24 families residing in the said area for more than 20 years. <ORG>, Pondicherry, had given identification certificates during the year 1997.

14. The learned Counsel appearing for the petitioners had reiterated her contentions stating that the respondents had wilfully disobeyed the order passed by this Court, on 10.2.2005 in W.P.M.P. No. 3375 of 2005, in W.P. No. 11541 of 2004.

15. The learned Counsel appearing for the petitioners had also stated that the first respondent has not only laid the road in question but had also gone to the extent of giving a new name "Puthu Theru Matha Koil Street" in the month of July, 2005.

16. The learned Counsel appearing for the petitioners had also quoted Sections 37 and 43 of The Pondicherry Town and Country Planning Act, 1970, to show that no development or change of use of any land could be undertaken or carried out without following the procedures established therein. If any act is done in contravention of the provisions of the said Act, it was liable to be punished as provided thereunder. Even if it is accepted that the road in question was laid by the encroachers, penal action ought to have been initiated against them for contravention of the provisions and for disobeying the orders passed by this Court. Even though there was no mention about the existence of the road, during the hearing of the earlier writ petitions, in W.P. No. 4077 of 2000 and W.P. No. 7629 of 2001, it is for the first time such a claim is made in the counter affidavit filed in the above contempt petition.

17. While stating that the respondent had filed a false affidavit, the learned Counsel appearing for the petitioners had relied on the decision of <ORG> in <CITATION> (1995 SCC (Cri) 608), wherein, it was held that filing of false affidavits was not only reprehensible and condemnable but also requires to be dealt with sternly. It was also held that belated apologies offered for such behaviour are not apologies of a truly repentant person. When they are made obviously with a view to escape from punishment such apologies cannot be accepted. As such action would only aggravate contumacious act and it would amount to a deliberate attempt to overreach the due process of law without compunction.

18. It was also contended that mere explanation offered by the respondent for the act amounting to contempt of Court would not absolve him of the liability as held by <ORG>.

19. The learned Counsel appearing for the petitioners had also relied on the following decisions in support of her contentions.

1. , ( <CITATION> .,

2. , ( <CITATION> )

3. ( <CITATION> .)

4. , ( <CITATION> .)

5. . ( <CITATION> )

20. Relying on the above said decisions, the learned Counsel appearing for the petitioners had emphasised the point that this Court ought to take a serious view on the contumacious conduct of the respondents in order to preserve the dignity and authority of the <ORG>, as the rule of law is the foundation of a democratic society, and judiciary is the guardian of the rule of law.

21. Based on the said decisions, it was also pointed out by the learned Counsel appearing for the petitioners that an order passed by the <ORG> should be strictly obeyed and strictly complied with, both in letter and spirit. The correctness or otherwise of the order cannot be questioned by the respondent before this <ORG>, at this stage. Unless the respondent is made to obey the orders passed by this <ORG>, it would result in diluting the authority of this <ORG>, especially, when the respondents are attempting to place before this <ORG> distorted facts, which are incorrect.

22. The learned Counsel appearing for the respondents had submitted that the authorities concerned have taken appropriate steps on the representations made on behalf of the petitioners and it has been found that the dispute is between the petitioners and the alleged encroachers who are said to be in occupation of the petitioners' property and therefore, it is a matter to be resolved through the Courts of law by way of civil proceedings. The allegations made by the petitioners in the contempt petition are ill-founded and they cannot be sustained, either on facts or in law.

23. In view of the contentions raised by the parties concerned and on a perusal of the records placed before this <ORG>, it is clear that the petitioners have not shown sufficient cause or reason to substantiate the claims made by them to punish the respondents for contempt of <ORG>. There is nothing on record to show that the respondents have laid the road in the petitioners' property as alleged by the petitioners, nor is there anything to show that the respondents were responsible for laying the road as claimed by the petitioners.

24. On the other hand, it is seen that the respondents and the other authorities concerned have taken sufficient steps to implement the order passed by this <ORG> in W.P.M.P. No. 3375 of 2005, in W.P. No. 11541 of 2004, dated 10.2.2005. In such circumstances, the respondents cannot be punished for contempt of <ORG> for wilfully disobeying the order passed by this <ORG>, on 10.2.2005, in W.P.M.P. No. 3375 of 2005, in W.P. No. 11541 of 2004.

25. No doubt the authority and dignity of this <ORG> has to be preserved in the process of establishing and maintaining the rule of law. There is also no doubt that this <ORG> has sufficient powers vested in it by the authority of law to punish the acts and omissions committed by persons having the effect of diluting such authority or dignity. However, this <ORG> is also conscious of the fact that its power to punish persons for contempt of <ORG> is to be exercised with sufficient care and caution. If not, it would result in a situation where Tyranny of law would prevail instead of rule of law.

The contempt petition stands closed. No costs. 25.3.2008 lan


PETITIONER: SMT. POONAM LATA Vs. RESPONDENT: M.L. WADHAWAN & ANR. DATE OF JUDGMENT07/08/1987 BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SEN, A.P. (J) CITATION: 1987 AIR 2098 1987 SCR (3) 840 1987 SCC (4) 48 JT 1987 (3) 305 1987 SCALE (2)281 CITATOR INFO : RF 1986 SC 596 (8) RF 1988 SC1835 (8) F 1989 SC2027 (19) R 1989 SC2265 (19) ACT: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974: s. 3(D--Preventive deten- tion--Order made when detenu in jail--Order whether vitiat- ed. HEADNOTE: In criminal writ petition No. 292 of 1986, preferred by detenu's wife on various grounds, the Vacation Judge ordered his release on parole till further orders. However, when the petition came up for hearing before <ORG> on 3rd March, 1987 the counsel confined his submissions to one aspect only that arose out of the proceedings in <ORG> i.e., that the period of parole should not be added to the period of detention. That plea was rejected and the petition dis- missed on 22nd April, 1987. In the present writ petition filed thereafter on April 27, 1987 it was averred that the counsel did not give up the other points in the earlier writ petition, and had the <ORG> indicated that the petitioner's submission would not find favour with it he would have proceeded to argue the case. Further, two more points were raised: (1) that the detenu had been prejudiced in making an effective representation to the <ORG> against his detention in the absence of the sum- mons issued under s. 108 of the Customs Act to him, which document had not been supplied in spite of demand, and (2) that since the detenu was already in custody at the time the order of detention was served the said order was liable to be quashed. Dismissing the writ petition, HELD: 1. It is common experience that when several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the hearing. In the instant case, only one point was argued at the previous hearing. It was open to the counsel to make full submissions on all aspects arising in the writ petition. That having not been done it was improper on his part to raise such allegations. [844A, D] 841 2.1 The detenu had been called by the Customs Authori- ties for investigation on February 27, 1986. A statement had been made by him under s. 108 of the Customs Act and there- after he was taken into custody and produced before the Additional Chief Metropolitan Magistrate, who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention under s. 3(1) of the COFEPOSA Act for one year came to be made on February 28, 1986 he was in jail at the most for one day. Chargesheet had not been submitted against him in the crimi- nal case. [847FG] 2.2 Since there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, it could not be held that summons under s. 108 of the Customs Act was in existence. Once the summons was out in existence it could not be said that there was prejudice to the detenu on account of the authority's withholding the summons. [846D] 3.1 The fact that the detenu was already in detention did not take away the jurisdiction of the detaining authori- ty in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detain- ing authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. [851D] 3.2 In the instant case, there was sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made yet he was satisfied that his preventive detention was necessary. The order of detention was, therefore, not viti- ated. [851E] <CITATION> , Dhanbad,  4 SCC 416; <CITATION> ,  4 SCR 921; <CITATION> ,  3 SCC 490; <CITATION> , Jabalpur,  4 SCC 164 <CITATION> and Kashmir,  2 SCC 43; <CITATION> ,  3 SCC 301 and <CITATION> ,  4 SCC 378, referred to. JUDGMENT:

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 408 of 1987.

(Under Article 32 of the Constitution of India).

<NAME> and Ms. <NAME> (Not present) for the Petitioner.

<NAME>, <NAME> and Ms. <NAME> for the Respondent.

The Judgment of the Court Was delivered by <NAME>, J. Petitioner's husband, <NAME>, was detained by an order passed by the Additional Secretary to <ORG>, <ORG>, <ORG>, dated February 28, 1986, made in exercise of powers vested under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 (hereinafter referred to as 'the COFEPOSA'). The peti- tioner made an application to this Court under Article 32 in Writ Petition (Crl) No. 292 of 1986 challenging that order of detention. In the earlier writ application, on 15th of May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the follow- ing terms:-

"The detenu is released on parole until further orders on the condition that he will report to <ORG>, New Delhi, every day and the <ORG> will be at liberty to direct him to explain his con- duct during this time ....... In the mean- time the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole."

On 3rd March, 1987, the writ petition was listed for hearing before the Bench consisting of both of us. In the writ petition, several contentions had been raised but Mr. <NAME>, learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of parole, that is, from 15th May, 1986, till February 22, 1987, should not be added to the period of detention speci- fied in the impugned order under section 3(1) of the COFEPO- SA and the period of one year from the date of detention having expired on February 20, 1987, the impugned order has lapsed and the detenu became entitled to be freed from the impugned order of detention. That point was examined at length and by the judgment of this Court delivered on 22nd April, 1987 in <CITATION> , AIR 1987 SC 1383 the writ petition was dismissed by saying:-

"In the premises, it must according- ly be held that the period of parole has to be excluded in recokning the period of detention under sub-section (1) of section 3 of the Act."

In paragraph 14 of the judgment, it was fur- ther observed:-

"For these reasons, the only conten- tion advanced by <NAME> in course of the hearing namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of deten- tion of the detenu <NAME> for one year as specified in the impugned order of deten- tion passed under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974, must fail. The writ petition is accordingly dismissed. There shall be no order as to costs. We direct that the petitioner shall surrender to custody to undergo remaining period of detention. We give the detenu 10 days' time to comply with this direction failing which a non-bailable warrant for his arrest shall issue."

This writ petition was thereafter filed on 27th of April, 1987. In paragraph 2 of the petition, with reference to the earlier writ petition, it was averted:-

"Arguments were advanced by the counsel for the petitioner only to the one point and it was clearly stated by the senior counsel, <NAME>, who appeared in the hearing that he had a strong, almost unanswerable case on merits but he was very keen to have the question of exclusion of the parole period decided since it arises squarely in this case. It would have been a breach of professional duty on the part of the counsel not to raise those points against the validity of the detention order on which the court had prima facie issued notice. <NAME>, senior counsel, did not give up the other points in the said writ petition. However, <ORG> has dismissed the said writ petition on 22.4. 1987. Though <ORG> has rightly observed that the only point which was argued was on the question of the period of parole it Was submitted that had <ORG> indicated that the petitioner's submission on this score did not find favour of <ORG>, counsel would have proceeded to argue the case."

We are surprised that in the writ petition which has been settled by Mr. <NAME>, such allegations have been made. It is common experience that when those several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the heating. The judgment indicated that only one point was argued. The averments in paragraph 2 of the present writ petition accepts that position. It, therefore, follows that Mr. <NAME> made submissions confined to one contention--a contention which had not been raised in the earlier writ petition but arose out of the proceedings in court therein--relating to the effect of release on parole. The fact that Mr. <NAME> raised only one submission having been accepted, it is a matter of no consequence as to whether giving up the other pleas raised in the writ peti- tion amounted to breach of professional duty on the part of Mr. <NAME>. The fact remains that only one contention had been raised. There is absolutely no basis for the alle- gation in paragraph 2 of the writ petition that if the <ORG> had indicated to Mr. <NAME> in course of arguments that the submission on this limited point did not find favour with the <ORG> he would have proceeded to argue the other points. That certainly was an unusual expectation. It was open to Mr. <NAME> to make full submission on all as- pects arising in the writ petition. That having not been done, it was improper on the part of Mr. <NAME> to raise such allegations in paragraph 2, as have been extracted above. We are surprised that Mr. <NAME> who was aware of the proceedings in the <ORG> and did not dispute the fact that he had confined his arguments to one point settled the writ petition as senior counsel with the allegations quoted above in paragraph 2 of the writ petition. This writ peti- tion was fixed for final hearing on 31st of July, 1987, as suggested by Mr. <NAME>, but at the hearing he did not appear and Mr. <NAME>, senior counsel, appeared for the peti- tioner. When we pointed out to Mr. <NAME> about the incorrect- ness of the averments and that the allegations contained in paragraph 2 are without foundation against the Bench hearing the matter, he pleaded ignorance and stated that it was for Mr. <NAME> to answer. We do not want to say anything more but we think it appropriate to point out that Mr. <NAME> on the earlier occasion had argued the writ petition in his own way and had raised only one contention which was dealt with by the judgment in the writ petition. Mr. <NAME>, learned counsel for the petitioner has raised two points before us for consideration: (1) the detenu had been prejudiced in making an effective representation to the <ORG> against his detention in the absence of the summons issued under section 108 of the Customs Act to him. In spite of demand, that document had not been supplied, and(2) the petitioner was already in custody at the time the order of detention was served and since the detenu was already in custody, the order of detention is liable to be quashed. In Ground No. 4 of the writ petition, it has been alleged:-

"That the most material document under the circumstances turns out to be the summons which was served on the detenu being the summons referred to in the letter dated 21.3. 1986, Annexure E above mentioned. The detenu by his advocate's letter of 12th April, 1986, has called upon the respondent No. 1 to supply him with a copy of the summons because he intends to use the said summons while presenting his case to the advisory board. True copy is annexed hereto and marked as Annexure F. The request contained in the said letter has not been complied with." In paragraph 4(iv) of the counter affidavit, it has been stated:-

"In reply to para 4, it is submitted that the summons as required by the detenu's advocate in the letter dated 12.4. 1986 were not supplied as there were no written summons served on the petitioner. I say that after the completion of the search of the residential premises of the petitioner on 27.2. 1986 the petitioner was taken by <ORG> officers. As the petitioner. happened to be in the presence of the empowered officers of <ORG>, he was accord- ingly told that his presence was required for giving evidence and the petitioner accompanied the <ORG> officers on his free will. No written summons were, therefore, served on the peti- t i o n e r ........................................... "

Section 108(1) of the Customs Act provides:- "Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods."

No specific provision has been made for summons in the <ORG> ACt and, therefore, the provisions of section 61 of the Code of Criminal Procedure will be applicable. That section provides:-

"Every summons-issued by a <ORG> under this Code shall be in writing, in dupli- cate, signed by the presiding officer of such <ORG> or by such other officer as <ORG> may, from time to time, by rule direct, and shall bear the seal of the <ORG>." On 12th of April, 1986, counsel for the petitioner wrote a letter to the detaining authority wherein it was stated:- " .......... I have to further request you to supply me with a copy of the summons said to have been served on client on or about 27th of February, 1986. The DRI has not yet supplied to my client the documents as stated in your above-mentioned rejection letter."

In view of the positive case of the respondents that there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, we think that it would not be proper to hold that summons under section 108 of the Customs Act was in existence. Once the summons is not in existence, there is no foundation in the submission that there is prejudice to the detenu on account of the authority's withholding the summons. The first con- tention fails.

Admittedly the petitioner was taken into custody around 2.00 p.m. on 27.2.1986, in course of investigation of the case. He was produced before the Judicial Magistrate and an order was made requiring him to be produced next day in the court. Paragraphs 7 and 8 of the grounds served on the petitioner run thus:-

"7--I have carefully gone through the facts and circumstances of the case, relevant documents and also the statements of various persons in the subject case. I have also seen and gone through the various applications moved in the court of the <ORG>, New Delhi and orders passed thereon."

"8--In view of the facts mentioned hereinabove, I have no hesitation in arriving at the conclusion that you have been dealing in smuggled goods otherwise than engaging in transporting or concealing or keeping smuggled goods. Even though the investigations in the subject case is in progress, prosecution and adjudication proceedings under the Customs Act , 1962, are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activi- ties Act, 1974, with a view to preventing you from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods."

In paragraph 7 of the counter-affidavit, it has been stated:-

" ......... The petitioner, as already stated, was summoned after the search of his residental premises on 27.2. 1987 and his statement recorded by the competent officer of DRI. The petitioner was arrested at 2.00 p.m. on 27.2. 1986 and was produced at the resi- dence of <ORG>, New Delhi on 27.2. 1986 at about 8.00 p.m ......... ...... ". In paragraph 9 of the said affidavit, it is further alleged that:-

"<NAME> was arrested at 1400 hrs. of 27.2. 1986 and produced before the <ORG> around 2000 hrs. at his residence the same day. <NAME> was then remanded to judicial custody till 28.2.1986 by the said magistrate."

The order of detention is dated 28.2. 1986. It was addressed to the detenu at his residential address at Delhi and not to the jail authorities for service on the detenu. From the facts and circumstances emerging in this case it is clear that the detenu had been called by <ORG> for investigation. A statement had been made by him under section 108 of the Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who ramanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention came to be made the petitioner was in jail for at the most one day. Charge- sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th of February, 1986.

Now it has to be seen if on these facts the order of detention would become vitiated. Strong reliance was placed by Mr. Garg on a two-Judge judgment of this Court in <CITATION> ,  4 SCC 416. Paragraph 3 of the judgment indicates the facts as follows:-

"The petitioner/appellant was in detention when the petitioner/appellant was served with the orders of detention. There were criminal cases against the petitioner. There was a murder case in respect of Crime No. 33 1 of 1985. In the said case, investiga- tion was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all con- cerned with the murder. When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already surrendered in respect of the criminal charge against him. At the relevant time, the petitioner was under trial in the said crimi- nal case."

On such facts, it was the contention of the petitioner therein that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for put- ting him back in jail. This Court therein pointed out:-

"The principles applicable in these types of preventive detention cases have been discussed in the decisions of <CITATION> ,  4 SCC 378 and <NAME> v. State of Bihar,  4 SCC 407. Judged on the basis of the said principles, there is no ground for interfer- ence with the order of detention as passed. It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the peti- tioner was taken into custody. From the affi- davit of the District Magistrate, it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decisions and especially in the decisions in <CITATION> , <CITATION> .

A Constitution Bench of this Court in <NAME> v. District Magistrate, Burdwan, [1964] 4 SCR 921 held as follows:-

"As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail."

The self-same question was examined in <CITATION> ,  3 SCC 490 where a three-Judge Bench of this Court observed:-

"It is true that he had been held in custody in connection with the offences under the Arms Act which are nonbailable offences, but even so, it was open to the trying magis- trate to release the petitioner on bail. The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reason- able conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity. Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order."

That very question again came before a two- Judge bench in Dr. <NAME> v. Dis- trict Magistrate, Jabalpur, [ 1975] 4 SCC 164 where it was observed:-

"In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151 Cr. P.C. That custody was obviously of a short duration. The mere service of the detention order on the petitioner in jail would not therefore invali- date the order. On the basis of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code ."

<CITATION> ,  2 SCC 43 a two-Judge Bench of this Court pointed out:-

"If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the <ORG>. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive deten- tion order needs to be made."

That vexed question came before a two-Judge bench of this Court in the case of <CITATION> ,  3 SCC 301 wherein it was observed:-

"Now, if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made?"

The <ORG> then referred to the <ORG> decision in <NAME> case (supra) and left it as a matter to be decided in every individual case on its own facts. The <ORG> also indicated that it was not a matter of jurisdition but had to be decided on the facts of each case. We may now refer to a recent judgment of a three-Judge Bench in the case of <CITATION> ,  4 SCC 378. <NAME>, J. who delivered the judgment in <NAME> case (supra) on which Mr. <NAME> has relied has also delivered the judgment in this case. Therein it was said:-

"In <NAME> v. District Magis- trate, Etah, [1985] 4 SCC 232 it was held that merely on the ground that an accused in deten- tion as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respect- fully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in re- spect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous mainte- nance of essential supplies and thereby jeo- pardise the security of the <ORG>, then sub- ject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive deten- tion ................. "

It is thus clear that the fact that the detenu is al-

ready in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was sub- jectively satisfied that his order of detention became necessary. In the facts of the present case, there is suffi- cient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. <NAME>. Since both the contention canvassed are rejected, the writ petition is dismissed.

P.S.S. Petition dismissed.


PETITIONER: <NAME> Vs. RESPONDENT: COMMISSIONER OF INCOME TAX, <NAME>, JAMMU &<NAME>, <NAME> DATE OF JUDGMENT09/09/1971 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> GROVER, A.N. CITATION: 1972 AIR 126 1972 SCR (1) 639 1971 SCC (3) 369 CITATOR INFO : R 1984 SC 420 (38) E&D 1987 SC 522 (17) ACT: Income-tax Act , s. 9(1) -Property left by evacuee in Pakistan-Administered by Custodian under provisions of Pakistan (Administration of Evacuee Property) Ordinance 15 of 1949-Evacuee whether continues. ,owner' of property for purpose of s. 9 of the Income-tax Act, 1922. HEADNOTE: The assessee was a .,registered firm deriving income from securities, property, business and other- sources. In 1946 it purchased a hotel in 'Lahore for a sum of Rs. 46 lacs. For that purpose it raised a loan of Rs. 30 lacs from a bank and a loan of Rs. 18 lacs from one R. The 'loan taken from the, bank was largely repaid but with R the assessee came to an agreement whereby R accepted a half share in the said property in lieu of the loan advanced and-. also 1/3rd of the outstanding liability of the bank. This arrangement came into effect on November 1, 1951. After the creation of Pakistan, Lahore became a part of Pakistan and the hotel in question was declared evacuee property. As such it came to vest in the Custodian in Pakistan. In its returns for the assessment years 1952-53, 1955-56 and 1956-57 the assessee claimed certain amounts as losses on account of interest payable to the bank but showed the gross annual letting value from the said property at Nil. The Income-tax Officer held that since the property had vested in the Custodian no income or loss from that property could be considered in the assessee's case. The Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. <ORG> however came to the conclusion that the assessee still continued to be the owner of the property for the purpose of the computation of loss, and the interest paid was a deductible allowance under s. 9(1) (iv) of the Income-tax Act , 1922. In. reference <ORG> on an analysis of the various provisions of the Pakistan (Administration of Evacuee Property) Ordinance.15 of. 1949 came to the conclusion that for the purpose of s. 9 of the Act-the assessee could not be considered as the owner of that property: 'In the assesee's appeal to this Court it was contended that the property vested in the Custodian only for. the purpose of administration and the assessee still continued to be its- owner. HELD : Under the Pakistan (Administration of Evacuee Property) Ordinance 1949 the evacuee could not take possession of his property. He could not lease that property. He could not sell the property without the consent of the custodian. He could not mortgage that property. He could not realise the income of the property. All the rights that the evacuee had in the property were exercisable by the Custodian excepting that he could not appropriate the proceeds to his own use. The evacuee had only a beneficial interest in the property. In the eye of the law the Custodian who had all the powers of the owner was the owner of the property. His position_ was no less than that a Trustee. [643 F-644 A] Section 9 of the Income-tax Act,- 1922, brings.to tax the income from property and. not the interest of a. person in the property. A property cannot be owned by two persons, each one having independent and exclusive right over it. Hence for the purpose of s. 9 the owner must be 640 that person who can exercise the rights of the owner, not on behalf of the owner but in his own right. Accordingly the assessee was not the owner of the property in question during the relevant assessment years for the purpose of s. 9 of the Act. [644 D] It is true that equitable considerations are irrelevant in interpreting tax laws. But those laws like all other laws have to be interpreted reasonably and in consonance with justice. If the thousands of evacuee who left practically all their properties as well as businesses in Pakistan had been considered as the owners of those properties and businesses as long as the 'ordinance' was in force then those unfortunate persons would have had to pay income-tax on the basis of the annual letting value of their properties and on the income, gains and properties of the business left by them in Pakistan though they did not get a paisa out of those properties and business. Fortunately no one in the past interpreted the law in the manner suggested by the assessee. [644 E-G] Official Assignee for Bengal (Estate of <NAME>), 5 I.T.R. 233, Commissioner of Inland Revenue v. <NAME>, 14 T.C. 78 and . <CITATION> , 2 I.T.R. 148, applied. <CITATION> ,  S.C.R. 801, distinguished. <NAME> v. C.I.T., 16 I.T.R. 123 and <CITATION> , 28 I.T.R. 510, considered. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1970 to 1973 of 1968.

Appeals from the judgment and order dated September 20, 1967 of <ORG> in Income-tax Reference Nos. 2 :and 3 of 1967.

<NAME> and <NAME>, for the appellant (in all the appeals) <NAME>, <NAME> and <NAME>, for the respondent (in all the appeals).

The Judgment of the Court was delivered by <NAME>, <NAME> In these appeals by certificate, the only question arising for decision is : "whether on the facts and in the circumstances of the case, the assessee. continued to be the owner of the property for the purposes of computation of income under S. 9 of the Income-tax Act, 1922" (to be hereinafter referred to as the Act). A Full Bench of <ORG> speaking through <NAME>, <NAME> answered that question in the negative. Being dissatisfied with that decision the assesses has brought these appeals. Now turning to the facts of the case, the concerned assess- ment years are 1952-53, 1955-56 and 1956-57, the relevant accounting periods being financial years ending March 31, 1952, March 31, 1955 and March 31, 1956. The assesses is a registered firm deriving income from interest on securities, property, business and other sources. Sometime In the year 1946 it purchased <ORG> in Lahore for a sum of Rs' 46 lakhs. For that purpose it raised a loan of Rs. 30 lakhs from <ORG>, Lahore and a loan of Rs. 18 lakhs from the <NAME> of Jubbal. The loan taken from the bank was partly repaid but as regards the loan taken from the <NAME>, the assessee came to an agreement with the <NAME> under which the <NAME> accepted a half share in the said property in lieu of the loan advanced and also 1/3rd of the outstanding liability of the bank. This arrangement came into effect on November 1, 1951. After the creation of Pakistan, declared an evacuee property and consequently vested in the Custodian in the Pakistan.

In its return for the relevant assessment years, the assessee claimed losses of Rs. 1,00,723.- Rs. 1,16,599/- and Rs. 1,16,599/- respectively but showed the gross annual letting. value from the said property at Nil. The loss claimed was stated to be on account of interest payable to the bank. Since the property in question has vested in the Custodian of Evacuee Property, in Pakistan, the Income-tax Officer held that no income or loss from that property can be considered in the assessee's case. He accordingly disallowed the assessees claim in respect of the interest paid to the bank. The Appellate Assistant Commissioner- confirmed the order of the Income-tax Officer. In second appeal the <ORG> came to the conclusion that the assessee still continued to be the owner' of the property for the purpose of computation of loss. The <ORG> held that the interest paid is a deductable allowance under s. 9(1)(iv) of the Act. In arriving it that conclusion, the <ORG> relied on its earlier decision in the case of the assessee in respect of the assessment year 1951-52. thereafter at the instance of the assessee, the <ORG> submitted the question set out earlier. <ORG> on an analysis of the various provisions of the Pakistan (Administration of Evacuee property) Ordinance, 1949 (XV of 1049) (to be hereinafter erred to as the 'Ordinance) came to the conclusion that for the purpose of s. 9 of the Act, the assasee cannot be considered as .he owner of that property. It was urged by Mr. <NAME>, learned Counsel for the assessee that <ORG> erred in opining that the assessee was not the owner of the property, for the purpose of s. 9 of the Act. According to him the property vested in the Custodian only for the purpose of administration and the assessee still continued to be its owner. He contended that the expression "owner" means the person having the ultimate right to the property. He further contended that the so long as the assessee had a right to that 7-L3Sup.C.I./72 property in whatever manner that right might have been hedged in or restricted, he still continued to be the owner. On the other hand, it was contended on behalf of the <ORG> that the <ORG> is concerned with income, gains and profits. Therefore for the purpose of that Act, the owner is that person who is entitled to the income. According to the <ORG> the word "owner" in s. 9 refers to the legal ownership and not to any beneficial interest in the property.

For deciding the question whether the assessee was the owner of the property for the purpose of S. 9 of the Act during the relevant accounting years, we have to look to the provisions of the Ordinance. Let us first take a survey of the relevant provisions of the Ordinance and thereafter analyse the effect of those provisions.

The long title of the Ordinance says that it is an Ordinance to provide for the administration of the evacuee property in Pakistan and for certain matters incidental thereto. The preamble says that "whereas an emergency has arisen which renders it necessary to provide for the administration of evacuee property in Pakistan and for certain matters incidental thereto". Section 6(1) provides that all evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the 1st day of March 1947. Section 9 gives Dower to the Custodian to take possession of the evacuee property. Section 11 provides that any amount due to an evacuee or payable in respect of any evacuee property, shall be paid to the Custodian by the person liable to pay the same and the payment to the Custodian discharges the debtor's liability to the extent of the payment made. Section 12 prescribes that the property which hag vested in or of which possession has been taken by the Custodian shall be exempt from all legal process, including seizure, distress, ejectment or sale by any officer of a Court or any other authority a;; no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any ot" authority. Section 14(1) permits <ORG>, allot evacuee property to the refugees. Section 16(1) says the no creation or transfer of any right or interest in or encumbrane, upon any property made in any manner whatsoever on or after the first day of March, 1947 by or on behalf of an evacuee or by or on behalf of a person who has or may become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian. Section 19 empowers the Custodian to restore the evacuee property to the lawful owner subject to such conditions as he may be pleased to impose. Section 20(1) stipulates that the Custodian may take such measures as he considers necessary or expedient for the purpose of administering, preserving and managing any evacuee property which has vested in him and may for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. Sub-s. (2) of that section provides that "without Prejudice to the generality of the provisions contained in sub-s. (1), the Custodian may.

(m)sell any evacuee property, notwithstanding any this contained in any law or agreement to the contrary relating thereto, Provided that the Custodian shall not under this Clause or the next succeeding clause sell any immovable evacuee property or any business or undertaking which is evacuee property, except with the previous approval of the Central Government."

Clause (i) of that sub-section empowers the <NAME> to demolish or dismantle any evacuee property which in his opinion cannot be repaired, or sell the site of such property and the materials thereof. The <NAME> can recoup all the expenses incurred by him in the administration of the evacuee property from out of the receipts in his hand in respect of that property, Section 22(1) requires the <NAME> to maintain separate account of the property of each evacuee of which he has taken possession and shall cause to be made therein entries of all receipts and expenditure in respect therof. The Ordinance starts by saying that it is an Ordinance to provide for the administration of evacuee property and not management of evacuee property. The expression "administra- tion" in relation to an estate, in law means managements and settling of that estate. It is a power to deal with the estate. The evacuee could not take possession of his property. He could not lease that property. He could not sell that property without the consent of the <NAME>. He could not mortgage that property. He could not realise the lncome of the property. On the other hand, the <NAME> could take possession of that property. He could realise its income. He could alienate the property and he could under certain circumstances demolish the property. All the rights that the evacuee had in the property he left in Pakistan were exercisable by the <NAME> excepting that he could not appropriate the proceeds for his own use. The evacuee could not exercise any rights in that property except with the consent of the <NAME>. He merely had some beneficial. interest in that property. No doubt that residual interest in a sense is ownership. The property having vested in the <NAME>, who bad all the powers of the owner, he was the legal owner or the property. In the eye of the law, the <NAME> was the owner of that property. The position, of the <NAME> was no less than that of a Trustee. Section 9(1) says :

"The tax shall be payable by an assessee under the head "Income from Property" in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits of which are assessable to tax subject to the following allowances namely :-

The question is who is the "owner" referred to in this section ? Is it the person in, whom the property vests or is it he who is entitled to some beneficial interest in the property It must be remembered that S. 9 brings to tax the income from property and not the interest of a person in the property. A property cannot be owned by two persons, each one having independent and exclusive right over it. Hence for the purpose of s. 9 , the owner must be that person who can exercise the rights of the owner, not on behalf of the owner but in his own right.

For a minute, let us look at things from the practical point of view. If the thousands of evacuees who left practically all their properties as well as business in Pakistan had been considered as the owners, of those properties and business as long as the 'Ordinance' was in force then those unfortunate persons would have had to pay income-tax on the basis of the annual letting value of their properties and on the income, gains and profits of the businesses left by them in Pakistan though they did not get a paisa out of those properties and businesses. Fortunately no one in the past interpreted the law in the manner Mr. <NAME> wants us to interpret. It is time that equitable considerations are irrelevant in interpreting tax laws. But these laws, like all other laws have to be interpreted reasonably and in consonance with justice.

The question as to who is Vie owner of a house property under s. 9 of the Act in circumstances similar to those before us came up for consideration before <ORG> in the matter of <NAME> for Bengal (Estate of <NAME>) (1). In that case on the adjudication of a person as insolvent under the Presidency Towns Insolvency Act , 1909, certain house property of the insolvent vested in the Official Assignee. The question arose whether the Official Assignee (1)5. I.T.R. 233.

could be taxed in respect of the income of the property under s. 9 . <ORG> held_ that the property did not by reason of the adjudication of the debtor cease to be a subject fit for taxation and in view of the provisions of s. 17 of the Presidency Towns Insolvency Act, the Official Assignee was the, "owner" of the property and he could rightly be assessed in respect of the income from that property under s. 9 . Section 17 of the, Presidency Towns Insolvency Act , reads:

"On the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the official assignee and shall became divisible among his creditors, and thereafter, except as directed by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall, during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt: or shall commence any suit or other legal proceedings except with the leave of the Court and on such terms as the Court may impose :

Provided that this section shall not affect the power of any secured creditor to realize or otherwise deal with his security in the same manner, as he would have been entitled to realise or deal with it if this section had not been passed."

We may note that the powers of the Custodian are no less than that of the Official Assignee under the Presidency Towns Insolvency Act , 1909. Delivering the judgment of the <ORG> in the Official Assignee's case(1), <NAME>, J. observed :

"With regard to the first point, Mr. <NAME> argued that although by section 17 of the Presidency Towns Insolvency Act these properties vested in the Official Assignee he did not thereby or thereupon become the owner of those properties within the meaning properly ascribable to that word for the purposes of the applicability of Section 9 . What Mr. <NAME> really invited us to do was to restrict the meaning of the word by putting before it the qualifying adjective "beneficial". What was argued by Mr. <NAME> was that the Official Assignee had no legal interest in the properties themselves, they were merely vested in him for the purposes of the administration of them in the interest of the creditors of the insolvent. I am unable to accept Mr. <NAME>'s contention. In this country there is no difference between "legal estate" and "equitable estate". In this connection the case of Sir <NAME> (1) 5 I.T.R. 233.

netcy <CITATION> 612 I.A. 1209) is of assistance. At page 217 Sir <NAME> when giving the judgment of <ORG> made this observation: "In their Lordships" opinion the effect of the Act creating these trusts is not to give the baronet for the time being any right to any part of the interest or property specifically or any right which, even granting that the legal title is not the only thing that can ever be looked at, would make it true to say that any proportion of the interest is not 'receivable' or any proportion of the property is not 'owned' by the incorporated trustees."

The learned judges of <ORG> in reaching that conclusion relied on the decision in <NAME> v. Fleming(1). That appeal related to a claim for repayment of income-tax to which the respondent claimed to be entitled in respect of "personal allowance" introduced into the Income-tax system by S. 18 of the Finance Act, 1920. The claim arose in the following circumstances :

The respondent was declared insolvent in 1921. He was then the owner of heritable properties. His insolvency lasted till May 10, 1926. When he received his discharge on payment of composition and was reinvested in his estate. At that time his estate consisted of (1) Two of the original heritable properties which had not been realised by the trustee in the insolvency and (2) a balance in cash of pound 53 odd. During the insolvency, the trustee paid income-tax on the full annual value of the two properties in question. The contention of the respondent was that the radical right to these properties was in him all that time; and that; in paying the tax, the trustee was really paying it on his behalf-that is, on his income-and that consequently there arose in each of the years in which the payment was made a right to deduct his "personal allowance" from the annual value 'of the properties. The right to this abatement is said to have passed to the Respondent himself in virtue of the reinvestment in his estate which occurred upon his discharge on composition. Rejecting this contention Lord President observed : "It is obvious that, unless during the years in question the annual value of the properties was income of the Respondent, he cannot have any claim to abatement of it for income-tax purposes; and accordingly everything depends upon the soundness of the proposition that the income consisting in the annual value of (1) 14, Tax Cases 78.

these properties was truly income of the Respondent. I do not see how it can possibly be so described. It was part of the income arising from the sequestrated estates vested in the trustee for the Respondent's creditors. Any income that did arise from those estates was income of the trustee as such, and he (and he alone) had the right to put it into his pocket as income. It was not income that went or could go into the pocket of the Respondent as income in any of the years in question. How then can it be said to have reached his pocket as income on his subsequent reinvestiture."

For determining the person liable to pay tax, the test laid down by the court was to find out the person entitled to that income. An attempt was made by Mr. <NAME> to distinguish this case on the ground that under the corresponding English statute the liability to tax in respect of income from property is not laid on the owner of the property. It is true that s. 82 of the English Income- tax Act, 1952 is worded differently. But the principles underlying the two statutes are identical. This is clear from the various provisions in that Act.

The conclusion reached by <NAME>, J. in Official Assignee's case(1) receives support from the decision of <ORG> in <CITATION> (2). The Counsel for the appellant was unable to point out to us any decision which has taken a view contrary to that taken in Official Assignee's case(3).

The learned judges of <ORG> in reaching their con- clusion that the assessee was not the owner of the property in the relevant assessment years, took assistance from the decisions of English courts dealing with the question of levy of income-tax on the income from enemy properties taken possession of by the <NAME> during war. In those cases the English judges have enunciated the theory of suspended ownership. We do not think that we need call assistance from those decisions.

Mr. <NAME> contended that despite the fact that evacuee property was taken over by the Custodian and that he had been conferred with large powers to deal with it, an evacuee from Pakistan who owned that property before he migrated to India still continued to be the owner of the property. For this contention of his he placed reliance on some of the observations of this Court in <CITATION> (1). Therein delivering judgment of the Court <NAME>, J. observed (at p. 815 of the report):

(1)5 I.T.R. 233.

(2)2 I. T.R. 148.

(3) [1957] S.C.R.

"Stopping here it will be seen that the position, in its general aspect, is that all evacuee property is vested in the <NAME>. But the evacuee has not lost his ownership in it. The law recognised his ultimate ownership subject to certain limitations. The evacuee may come back and obtain return of his property, as also an account of the management thereof by the <NAME>."

Those observations have to be understood in the context in which they were made. Therein, their Lordships were considering whether the right of an evacuee in respect of the property left by him in the country from which he migrated was property right for the purpose of Art. 19 (1 ) (1) (f ) of the Constitution. No one denies that an evacuee from Pakistan has a residual right in the property that he left in Pakistan. But the real question is, can that right be considered as ownership within the meaning of S. 9 of the Act. As mentioned earlier that section seeks to bring to tax income of the property in the hands of the owner. Hence the focus of that section is on the receipt of the income. The word "owner" has different meanings in different contexts. Under certain circumstances a lessee may be considered as the owner of the property leased to him. In Stroud's Judicial Dictionary (3rd Edn.), various meanings of the word "owner" are given.' It is not necessary for our present purpose to examine what the word "owner" means in different contexts. The meaning that we give to the word " owner" in s. 9 must not be such as to make that provision capable of being made an instrument of oppression. It must be in consonance with the principles underlying the Act. Mr. <NAME> next invited our attention to the observations in Pollock on Jurisprudence (6th Edn. 1929) 178-80: "Owner- ship may be described as the entirety of the powers of use and disposal allowed by law... The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of 'it; and he will be the owner even if the immediate power of control and use is elsewhere". It is not necessary to consider whether those observations hold good even now because of the various legislative measures enacted during the last about forty years after those observations were made. Suffice it to say that those observations are inapplicable to the case of the "owner" under S. 9 of the Act.

<NAME>

Mr. <NAME> in support of his contention next placed reliance on the decision of <ORG> in <CITATION> (1). Therein the question was whether the receiver of a property appointed by court was the owner of the property for the purpose of s. 9 of the Act. The court came to the conclusion that he was not the owner as the property did not vest in him. In fact in the course of the judgment, the court made a distinction between a receiver and a trustee and an official assignee. In our opinion this decision instead of supporting the case of the appellant may lend some support to the contention of the <ORG>. Reliance was next placed on the decision of <ORG> in <CITATION> (2). The facts of that case were :

Properties which belonged to the ancestors of the Nawab of Murshidabad as Rulers, were, some time after the territories had been conquered by the British, settled by the Secretary of <ORG> for India in the year 1891 on the then Nawab of Murshidabad under a deed of settlement which provided that such properties " shall henceforth and for ever be held and enjoyed by the said Nawab Bahadur and such one among his lineal male heirs as may be successively entitled to hold the said title in perpetuity,. with and subject to the incidents, power, limitations and conditions as to the inalienability and otherwise hereinafter contained". One of the conditions was that he was not entitled to sell or alienate the properties except with the approval of the Governor of Bengal. The Settlement deed was confirmed by Act XV of 1891. The question arose whet-her Nawab of Murshidabad was liable to pay tax in respect of the income of those properties under s. 9 of the Act. The Court held that whatever might have been the original nature of the "<ORG> properties, after the deed of settlement and the Act of 1891, as the dual status of the Nawab as the holder of the <ORG> and as an individual ceased, it could not be said that the Nawab for the time being was not the "owner" of such properties for the purposes of s. 9 of the Act and the Nawab was therefore liable to be assessed to income-tax on the income of such properties. The Court further held that the word "owner" in s. 9 of the Act applies to owners of the whole income, even though they are under certain restrictions with regard to the alienation of the properties. We are unable to see how this decision gives any support to the contentions advanced on behalf of the assessee.

After giving our careful consideration to the question of law under consideration, we have come to the conclusion that the (1) 16, I.T.R. 123.

(2) 28, I.T.R. 510.

assessee was not the owner of <ORG> during the relevant assessment years for the purpose of s. 9 of the Act. Hence these appeals fail and they are dismissed. In the circumstances of the case we make no order as to costs in these appeals.

<NAME>

Appeals dismissed.


<ORG> <ORG> West Bengal <NAME> (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO FA/832/2012 (Arisen out of Order dated 28/09/2012 in Case No.CC/341/2010 of Unit-I, Kolkata DF) DATE OF FILING : 05.11.2012 DATE OF ORDER: 25.07.2013 APPELLANT : 1. <ORG> A company incorporated under the provisions of Companies Act ,. 1956 having its Registered Office at Sandoz House, Shivsagar Estate Dr. Annie Beasant Road, Worli, Mumbai-400018 RESPONDENTS : 1. Smt. Rasula Begaum Chowdhary, Wife of Mr. <NAME>, Subarnarekha Apartment, 4th Floor, C-1, Baghajatin, Police Station-Jadavpur, Kolkata-700092 2. <ORG>, 4, Lyons Range, Police Station-Shakespeare Sarani, Kolkata 700001 BEFORE HONBLE MEMBER :

<NAME> HONBLE MEMBER : <NAME> FOR THE APPELLANT : Mr. <NAME>, Ld. Advocate, Mr. <NAME>, Ld. Advocate.

FOR THE RESPONDENT No. 1 :

Mr. <NAME>, Ld. Advocate FOR THE RESPONDENT No. 2 : Mr. <NAME>, Ld. Advocate.

______________________________________________________________________ <NAME> , Member The present appeal has been directed against the judgment and order dated 28.09.2012 passed by <ORG> Unit-I, Kolkata in CDF/Unit-I/Case No.341/2010, wherein <ORG> allowed the petition of complaint ex parte with cost against the OP No.1, <ORG> and on contest against the OP No.2, <ORG>, thereby directing both the OPs to be jointly and severally liable to reimburse a sum of Rs.71,412/- (Rupees seventy one thousand four hundred twelve) to the Complainant for cost of fourth dose of medicine with cost @ 9% per annum from the date of repudiation till the date of realization along with a further direction to pay compensation of Rs.65,000/- (Rupees sixty five thousand) for the harassment and mental agony caused to the Complainant along with a further direction to pay a litigation cost of Rs.10,000/- (Rupees ten thousand). <ORG> also directed the OPs to pay a sum of Rs.2,00,000/- (Rupees two lakhs) to the Complainant and Rs.5,00,000/- (Rupees five lakhs) in favour of <ORG>, Government of West Bengal as punitive damages as per provisions laid down under section 2 (1) ( r ) of the Consumer Protection Act , 1986 for carrying Unfair Trade Practice.

The case of the Complainant/Respondent before <ORG>, in brief, was that the Complainant was suffering from neovascular (wet) age rated to muscular degeneration (AMD), Visual Disorder and required Lucentis treatment, a product of <ORG> and Complainant was to borne the cost of such treatment. According to the Complainant, the OP No.2, Insurance Company, repudiated the claim of the Complainant for reimbursement of such medicinal costs on the ground of non follow-up communication with the Doctor. It was the further case of the Complainant that <ORG> purchased a Mediclaim Reimbursement Policy from <ORG> in the name of the Complainant as the cost of medicine was exorbitant. The insurance coverage was from 25.09.2008 to 24.09.2009 and the date of purchase of medicine was 16.09.2008 and the sum insured was Rs.1,65,000/- (Rupees one lakh sixty five thousand). The <ORG> i.e., the Insurance Company reimbursed the cost of medicine except the cost of fourth dose of medicine amounting to Rs.71,412/- (Rupees seventy one thousand four hundred twelve) on the ground of failure monthly follow-up. According to the Complainant, the acts on the part of the OPs tantamounted to gross negligence, Unfair Trade Practice and deficient service and hence, the petition of complaint for proper redressal.

Only <ORG> contested the case by filing W.V. thereby denying and disputing the material obligations mentioned in the petition of complaint contending, inter alia, that there was no deficiency in service at the instance of <ORG> and as such the petition of complaint was liable to dismissed.

<ORG> while disposing of the petition of complaint, has observed that the Complainant was a bonafide purchaser of medicine from the OP No.1 with the assured Insurance Policy purchased by OP No.1 on behalf of the Complainant from OP No.2, the question of refusing the claim of the Complainant in respect of fourth dose of medicine, amounting to Rs.71,412/- (Rupees seventy one thousand four hundred twelve) does not arise at all. According to <ORG>, the plea taken by the Insurance Company to the effect that there was absence of follow-up action on the part of the Complainant is not at all tenable, in as much as, the Complainant was very much armed with the relevant Doctors certificate and since it was admitted position that OP No.1 had a tie-up with <ORG> as regards insurance coverage for the cost of medicine so purchased by the Complainant, the question of repudiating the claim of the Complainant, so far as it related to the cost of medicine, amounting to Rs.71,412/- (Rupees seventy one thousand four hundred twelve) in respect of the fourth dose, does not arise at all and, accordingly, they disposed of claim of the Complainant in this regard. <ORG> has also observed that there was Unfair Trade Practices at the instance of the OP, also by which a bonafide consumer, namely, the Complainant was put to unnecessary mental agony and harassment and, accordingly, disposed of the petition of complaint in the manner as mentioned above.

The only moot question that revolves round the present appeal is that, whether the Ld. District was justified in disposing of the petition of complaint in the manner discussed above.

Decision with reasons At the time of hearing, <ORG> for the Appellant OP No.1 has submitted before us that the Ld. District forum has utterly failed to appreciate the actual state of affairs and, as such, has arrived at a wrong and improper decision. According to <ORG>, from the materials on record it would be evident that there was no role at the instance of the Appellant in repudiation of the claim of the Complainant, so far as it related to cost of medicine in respect of the fourth installment so purchased by the Complainant. <ORG>, in this respect, has also submitted before us that for no fault on the part of the Appellant, the W.V. could not be filed on behalf of the Appellant OP No. 1 before the Ld. District forum as the Advocate on record, on behalf of the Appellant No.1, did not appraise the Appellant nor has took appropriate steps in this regard for which, for no fault of the Appellant OP No.1, the case before the Ld. District forum remained unrepresented on behalf of the Appellant due to which the same was disposed of ex parte against the Appellant OP No.1, which is extremely detrimental to the case of the Appellant. So far as it relates to the imposition of punitive damages, <ORG> for the Appellant has submitted before us that without assessing the involvement of the Appellant in this matter, punitive damages have been imposed without any rhyme or reason, and on this score the impugned judgment is liable to be set aside.

Ld. Advocate for the Respondent No.2 i.e. <ORG> has submitted before us that since there was absence of follow-up action on the part of the Complainant, which was a pre-condition for the release of the cost of medicine for the fourth dose, <ORG> was prevented from reimbursing the Complainant for which <ORG> should not be penalized. According to the Ld. Advocate, there was no deficiency in service at the instance of <ORG> and <ORG> without any rhyme or reason has passed the impugned judgment against the Respondent No.2, Insurance Company, which should be set aside.

We have duly considered the submissions so put forward on behalf of the Appellant and the Respondent No.2, Insurance Company and found that, in this case, the Complainant has come forward with a case to the effect in respect of Complainants purchase of costly medicine from the OP No.2 for valuable consideration, and though there was a tie-up in between the OPs for reimbursement of cost of medicine so purchased by the Complainant from the OP No.2 and more so when it is also an admitted position that OP No.1 had purchased the insurance coverage from the OP No.2 on behalf of the Complainant in respect of the price of the medicine so purchased by the Complainant, there was no point on the part of <ORG> to repudiate the just and proper claim of the Complaint in respect of price of fourth dose of medicine. <ORG> having refused to reimburse the Complainant in respect of the price of fourth dose of medicine, the same consumer complaint has been filed for proper redressal.

Before the Ld. District forum, the Appellant OP No.1 did not contest the case. However, <ORG> tried to put up a cost to the effect that there was no follow-up action on the part of the Complainant in respect of the purchase of fourth dose of medicine, the claim of the Complainant could not be considered, and in this regard there was no deficiency in service at the instance of the Insurance Company. As such, the petition of complaint was liable to be dismissed.

We have carefully gone through the impugned judgment and found that <ORG> has really appreciated the pros and cons of respective parties cases and has rightly adjudged the OP including the present appeal to the deficiency in service, as claimed by the Complainant. When the Complainant was very much armed with relevant Doctors certificate so far as it related to the fourth dose of medicine, we do not think that the plea taken by <ORG> in this regard, is acceptable.

We have also considered the plea taken by the Appellant OP No.2 to the effect that the OP No.2 have no role in the matter of repudiation of the claim of the Complainant, but since admittedly there was a tie-up in between the OPs, we do not think that plea of exonerating the OP No.1 can be accepted. However, we find much substance in the observations of <ORG> to the effect that both the OPs are jointly and severally liable to pay Rs.71,412/- (Rupees seventy one thousand four hundred twelve) to the Complainant for cost of fourth dose of medicine and imposition of the litigation cost of Rs.10,000/- (Rupees ten thousand). However, so far as it relates to the imposition of punitive damages to the tune of Rs.2,00,000/- (Rupees two lakhs) to be paid to the complainant and Rs.5,00,000/- in favour of <ORG>, <ORG>, we think that it would be just and proper if the punitive damages be reduced to Rs.50,000/- (Rupees fifty thousand) in favour of the Complainant and Rs.1,00,000/-(Rupees one lakh) in favour of <ORG>, <ORG>. The impugned judgment stands modified accordingly.

In the result, the appeal succeeds in part.

Hence, Ordered That the appeal stands allowed on contest in part. The impugned judgment stands modified to the extent that the imposition of punitive damages be reduced from Rs.2,00,000/- (Rupees two lakhs) to be payable to the Complainant by Rs.50,000/- (Rupees fifty thousand) and Rs.5,00,000/-, to be payable to <ORG>, Government of West Bengal to Rs.1,00,000/- (Rupees one lakh). The other portion of the impugned judgment remained unaltered.

MEMBER MEMBER


IN THE HIGH COURT OF <ORG> PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY,THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 WP(C).No. 34797 of 2014 (Y) ---------------------------------------- PETITIONER(S): ----------------------- <NAME>, AGED 65 YEARS, S/O.SANKUNNI NAIR, MARAMMAKALATHIL, THEKKUMMURI POST, KARALMANNA AMSOM, CHERPALASSERY VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. <NAME> RESPONDENT(S): ------------------------- THE VILLAGE OFFICER, CHERPALASSERY VILLAGE, CHERPALASSERY, PALAKKAD DISTRICT - 679 503. BY SENIOR GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/ WP(C).No. 34797 of 2014 (Y) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P-1: TRUE COPY OF THE REGISTERED SALE DEED NO.3064/1987 IN FAVOUR OF THE PETITIONER. EXT.P-2: TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 26.12.1989. EXT.P-3: TRUE COPY OF THE BASIC TAX RECEIPT DATED 23.5.2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P-4: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 14.5.2014 RESPONDENT(S)' EXHIBITS: ----------------------------------------- NIL //TRUE COPY// P.S.TO JUDGE Msv/ A.MUHAMED MUSTAQUE, J. ***************************************************** W.P.(C) No.34797 of 2014 ***************************************************** Dated this the 19th day of December, 2014 JUDGMENT

The petitioner approached the respondent by Ext.P4 for accepting basic tax and to issue a possession certificate.

In view of the above, there shall be a direction to the respondent to consider and take appropriate decision on Ext.P4 within a period of four weeks.

The writ petition is disposed of as above.

Sd/-

<NAME>, JUDGE ln