CASE NO.: Appeal (crl.) 1178 of 2001 PETITIONER: <NAME> RAJPARA APPELLANT Vs. RESPONDENT: STATE OF GUJARAT RESPONDENT DATE OF JUDGMENT: 24/04/2002 BENCH: Doraiswamy Raju & <NAME> JUDGMENT:

RAJU, J.

The appellant, head of the family which consisted besides himself, his wife, four daughters and a son aged about 5 years, stood charged for committing a brutal and cold blooded murder of his wife and four daughters by setting them on fire, when they were stated to be fast asleep under an impression that they were safe in their own house, and convicted for the offence of murder under Section 302  and awarded death sentence by the learned trial judge which in turn was also confirmed by <ORG>. Though charged with an offence under Section 201  also, the trial court acquitted him of the same. Before <ORG>, confirmation case No.3 of 2000 and Criminal Appeal No.540 of 2000 filed by the appellant came to be disposed of together and while confirming the conviction and imposition of the death sentence, the appeal came to be dismissed by <ORG> of <ORG> at Ahmedabad.

The area of controversy is very narrow in that as to whether it is homicidal as per the prosecution version or by sheer accident, as sought to be contended on behalf of the appellant. The occurrence was in the very house where the family lived wherein the appellant, the five members who died and his son lived and the manner in which the five members met their gruesome end is due to flames which engulfed them when they were asleep at 3 a.m. in the early morning hours on 22.5.99. Whether the said fire broke out accidentally or was the making of the appellant deliberately, alone is the dispute since that he struck a match which resulted in the huge fire due to the spilling of petrol accidentally near the cots on which the victims were sleeping is the fact which gives the turn or twist to the whole case. In short whether the appellant designedly sprinkled the petrol which he admittedly procured and kept in the house, though a controversy was raised as to the quantity procured by him, on the sleeping members of the family and set fire to them or that it was a mere case of accidental spill, as the appellant would try to make others to believe.

The skeletal facts necessary to appreciate the claims on behalf of the appellant are that the appellant was a fruit vendor selling mainly bananas in his hand cart in the city of Rajkot, that he got married to <NAME>, and through her had four daughters Raju Ben @ Nirmala, <NAME>, <NAME> and <NAME> and a son <NAME>. Eight months prior to the date of occurrence, the appellant purchased the house from his nephew PW-14, for Rs.1,75,000/- prior to which he was living in Ashapura Nagar locality in Rajkot. A portion of the price Rs.40,000/- remained yet to be paid and though the family started living in the house, it appears the wife and daughters did not like the house and started pressurising him to sell and purchase another house in some other locality. The appellant who got agitated by all these seems to have purchased five litters of petrol in a plastic can 'Car boy' from <ORG>, Rajkot and kept the same in the kitchen. On 21.5.99, after dinner at about 9 p.m. the appellant and his son had gone to sleep on the terrace of the house and other members slept in the rear room of the size 9'X10' on the ground floor. At about 3 a.m. early next morning, the appellant collected the petrol in a steel bowl and sprinkled the same on his wife and daughters who were sleeping and by lighting a match set them on fire and in the process was said to have also sustained burn injuries on his left ear, left shoulder and right thumb. There was huge fire in the room in which the deceased members of the family were sleeping and apprehending that he may also get burnt, ran away from the room by closing the door from outside and went to HUDCO Police Chowky. He seems to have stated that when he was lighting a lamp of petrol he sustained burn injuries and his wife and daughters seriously got caught in the big fire in the house and that they should be saved. On the direction of the chowkidar to go to the hospital for treatment he went by an auto- rickshaw to the hospital and got examined by the doctor PW-9 around 3.30 p.m. and the statement then made by him was that he sustained burn injury while preparing tea at his house. The huge fire resulted in the destruction of television set and other articles. Neighbours gathered and the brother of the appellant PW- 13 brought the dead bodies to the hospital and identified them to be that of the wife and daughters of the appellant. Post mortem was conducted and the medical opinion as to the cause of death was due to shock and extensive burns and failure of cardio respiratory system due to those extensive burns. A dying declaration was also recorded from the appellant by the Executive Magistrate between 10.30 a.m and 11 a.m. with an endorsement of the doctor that the appellant/patient remained conscious throughout. The appellant was later discharged on 3.6.99 when he came to be arrested in connection with the case registered against him under Section 302 .

After completion of the investigation charge sheet was filed and on committal to <ORG>, charge was framed under Section 302 and 201 . On commencement of trial, after recording the evidence of prosecution witness, the circumstances against the appellant were explained and the statement also came to be recorded under Section 313 . The stand of the appellant was one of denial and he preferred not to examine any witnesses for defence. During the course of recording further statement, the appellant tendered his written statement Ex.109 in vernacular language, the translation of which is stated to be as follows:

"I, the undersigned respectfully state that my explanation in this case is as under:

(1) The correct version of the incident is that I was thinking to commit suicide before the incident. So I brought petrol on the day of the incident and I thought to commit suicide in the night of the incident.

Therefore, I took out petrol in the muddamal bowl. At that time weight of petrol was felt less in weight and I was going by carrying the bowl trembling and the bowl had fallen down from my hand and petrol spread around. Thereafter, again I took out petrol in the bowl and at that time petrol was spilt on the cot as my leg got struck with the cot of my wife. Thereafter, I sat for sometime and put the petrol can and the bowl in the kitchen. I dropped the idea of committing suicide.

After some time I ignited the stove and suddenly there was a blaze and fire. I was not knowing that petrol might have been leaked from the can. I also got burnt and I came out of the house. In the meantime, the fire increased quickly and the smoke started coming out. I shouted and went to the police chowky and told to call the fire brigade. They sent me to the hospital.

Thereafter, I came to know that my wife and daughter have expired due to burns. I have neither put them on fire her (sic) killed.

(2) After purchasing this house, I purchased another house as we did not like this house. I was trying to sell this house.

(3) It is not true that I have killed my wife as the (sic) did not like the house.

I am innocent and it is required to declare me innocent."

After completion of trial and conclusion of arguments the learned trial judge came to the conclusion that it was the appellant, who alone was inside the house and poured petrol on the bodies of the deceased and by setting fire to them committed murder and imposed the sentence of death for the offence under Section 302 . The learned trial judge specifically found the following incriminating circumstances against the appellant, which proved the guilt of the appellant beyond reasonable doubt. The existence of misunderstandings and disputes over the purchase of the house where they were residing among the appellant and the wife and daughters; the purchase of five litters of petrol in a plastic can and keeping it in the kitchen, though he had no vehicle for its use; that the appellant alone was present in the house besides the deceased members at 3 a.m. when the incident had taken place; that the appellant alone poured petrol on the deceased members when they were asleep and set them on fire resulting in their deaths, placing in a safe place on the terrace his son to save his life; that due to the highly inflammable nature of petrol five liters poured on the bodies of the deceased ladies they were engulfed in huge fire and got roasted without any chance to escape from the interior room where they were sleeping; that the appellant made no attempts to save the ladies and himself alone ran away from the house and gone to the hospital where he gave also a false version that he had sustained burn injuries due to flames of kerosene stove while preparing tea; that the appellant had not then informed about fire incident involving the lady members or the injuries sustained by them, due to sprinkling or spilling as the appellant would like to claim of petrol on their bodies. The report of <ORG> Ex.42 and the panchnama of the place of occurrence the details of place of incident, the bowl, half burnt pieces of quilt and coired thread of wooden cots on which also the presence of petrol was detected; that the plea raised as in the written reply was not probable or believable and was not only false and got up and belied by the fact that no petrol was detected on his body; the fact that the theory of fire taking place due to electric short-circuit was also completely ruled out and found raised merely to mislead the court and that all those circumstances found amply proved only led to the inevitable conclusion that the appellant alone was the culprit.

The learned judges in <ORG> also gone into the merits at great length and detail and apart from affirming the incriminating circumstances found sufficiently established by the trial court, also held that the false plea set up by the appellant also militated against his innocence and the absence of proper or reasonable explanation and/or a false explanation given regarding the incriminating circumstances strengthened and completed the chain and further held that the prosecution has proved the charge beyond any reasonable doubt and the guilt of the accused conclusively. The case was considered to be one of the "rarest of rare cases" justifying the imposition of death sentence and thus the sentence also was confirmed by <ORG>.

<NAME>, appearing for the appellant, contended that except that the appellant was present at that time in the house, no other circumstance could really incriminate the appellant and that the immediate conduct subsequent to the occurrence and the urge in him to save the others would belie the claim that he committed the offence. Though, motive seems to have been taken as the strongest circumstance, none of the witnesses specifically spoke about the same and the evidence on record was really inadequate to come to such a conclusion. Argued the learned counsel further that all the circumstances noticed by the courts below even taken together could not lead to the only hypothesis of guilt of the appellant and militate against the occurrence being a mere accident and not homicidal. So far as the extreme punishment of death is concerned, it was urged that the case on hand can not be considered to fall in the class or category as to warrant the same and having regard to the broader aspects of the case and the need to maintain the son, the extreme penalty is not warranted in the case. Per contra, Mrs. <NAME> for the <ORG> with equal force contended that the concurrent findings recorded by the courts below are well merited and the punishment of death imposed cannot be said to uncalled for or unjustified.

We have carefully considered the submissions of the learned counsel appearing on either side. The entire case against the appellant rests only on circumstantial evidence, and having regard to the manner, place and time of occurrence it was difficult for the prosecution to gather or produce any direct or ocular evidence for the commission of the murder. As indicated even at the outset, the area of controversy is very limited and even the indisputable facts placed on record, some of which by the very admission of the appellant, would provide sufficient basis for legitimately inferring the actual role played by the appellant and it is in this context only both the courts below have chosen to appreciate and highlight the varying as well as the falsity of the plea of the very appellant. Every one of the circumstances found established in this case definitely form a chain of evidence so complete and definite as not to leave any doubt that the appellant has been carefully planning and meticulously preparing at every stage to get rid of the wife and the daughters as a whole lot. On the evidence on record it could not be properly contended that the courts below found the appellant guilty solely on the basis of the falsity of the stand or explanation given by him of the occurrence. The circumstances held proved in this case by cogent and convincing materials brought on record are sufficient to substantiate the homicidal crime committed by the appellant beyond reasonable doubt and bring home the guilt of the accused with reasonable and positive definiteness. The false nature of the varying explanations and the narration in the written statement of events as to how the incident took place has been highlighted by the courts below more in the process of finding out the reasonableness of the explanation and plausibility of its acceptance, more as an additional circumstance to reinforce the conclusions arrived at and not to use such reasoning as a substitute for the ordinary proof normally expected of the prosecution to substantiate the guilt of the accused. The reliance placed by the courts below on the deposition of PW-14 (the nephew), PW-13 (the brother), PW- 6 (living in the house opposite to the appellant), PW-7, PW-8 (the panch witnesses) and the facts noticed in the panchnama relating to the place of the incident Ex.P-82 to arrive at the conclusions cannot be said to be either inappropriate, unreasonable or unjustified. Both the courts below have analysed the materials carefully and in their proper perspective and the manner of appreciation of evidence by them cannot be said to be either perverse or suffer from any glaring infirmities. It cannot also be legitimately contended that improper and wrong inferences have been drawn from the materials placed on record or facts proved. Therefore, we see no reason to interfere with the concurrent findings of facts recorded by the courts below on the guilt of the appellant.

As for the quantum of sentence, we have given our careful consideration in the light of the submissions of the counsel on either side. As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardsticks as a ready reckoner can be formulated. <CITATION> . [1998(7) SCC 177] it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the "rarest of rare cases", as indicated in <CITATION> [1980 (2) SCC 684] and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor. <CITATION> [1999 (3) SCC 19] dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, this court observed that the particular and peculiar facts and circumstances of each case should be properly balanced and noticing the mentally depressed condition of the accused, held the case to be not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the fact that the accused was guilty of committing a gruesome act of a premeditated and well thought out murder. While striking a contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for wealth or women (neither for money such as extortion, dacoity or robbery nor even for lust and rape) or an anti-social act involving kidnapping and trafficking in minor girls or of an anti- social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills a number of persons nor was committed for power or political ambitions or as part of organized criminal activities. No doubt those cannot be said to be exhaustive of such category but merely enumerative of the criminal intent of the worst type, destructive of the basic orderliness fundamental to the very existence of a welfare oriented society Considering the facts of the case presented before us, it is on evidence that despite his economic conditions and earnest attempt to purchase a house for the family after raising loans, the wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant. Though they were all living together the continuous harassment and constant nagging could have very well affected his mental balance and such sustained provocation could have reached a boiling point resulting in the dastardly act. As noticed even by <ORG> the appellant though hailing from a poor family had no criminal background and it could not be reasonably postulated that he will not get rehabilitated or that he would be a menace to the society. The boy of tender age would also once for all be deprived of the parental protection. Keeping in view all these aspects, in our view, it could not be said that the imposition of life imprisonment would not adequately meet the requirements of the case or that only an imposition of the extreme punishment alone would do real or effective justice. Consequently, we direct the modification of the sentence of death into one of rigorous imprisonment for life, by partly allowing the appeal to that extent. In other respects the appeal shall stand dismissed. The appellant shall undergo the remaining period of sentence, as above.

<NAME>

[Doraiswamy Raju] J.

[Brijesh Kumar] April 24, 2002.


JUDGMENT <NAME>, J.

1. Can a father maintain a petition for compensation under Section 110-A of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act) in respect of the death of his son in an automobile accident, when the mother is alive? That is the question that arises for determination in this appeal.

2. One <NAME> died as a result of an automobile accident in Davangere City on 16-12-1965. He was survived by his mother and his father. On 10-2-1966 the father (appellant 1) made a petition under S, 110- A of the Act before <ORG>, Chitradurga, (hereinafter referred to as the <ORG>) claiming compensation. More than a year later, i.e., on February, 1967, he made an application, I.A.IV, to implead the mother of the deceased as the second petitioner. Respondents 1 to 3 herein, namely, the owner of the motor vehicle involved in that accident, the Insurance Company (wherein that vehicle was insured) and the driver of that vehicle (who were also respondents 1 to 3 before the <ORG>), did not file any objections to I.A.IV. The <ORG> allowed that application on 3-3-1967 and the mother was added as petitioner 2 in the petition.

3. On 20-12-1967, petitioner 2 namely, the mother, made an application praying for condoning the delay in making her claim. That application was opposed by the respondents. The <ORG> dealt with that application along with the main petition.

4. The <ORG> framed six issues. The third issue is whether the death of <NAME> was on account of his own negligence; the first issue is regarding the right of the petitioners to claim compensation; the fifth issue is regarding the maintainability of the petition; and the second issue relates to the quantum of compensation.

5. On the third issue, the <ORG> held that the accident was due to the rash and negligent act of the driver of the motor vehicle.

6. The <ORG> considered issues Nos. 1 and 5 together and held that when the mother is alive, she alone is entitled to claim compensation and that the father is not entitled to do so, that the mother must be regarded as having made the petition for compensation only on the day on which the application, I.A.IV, was filed for being added as a petitioner, that at that time the period of limitation for making such petition had expired, and that the delay in making such petition could not be condoned as she had not <NAME>wn that <NAME> was prevented by sufficient cause from making the petition in time. In that view, the <ORG> dismissed the petition and did not consider it necessary to give a finding on the second issue which relates to the quantum of compensation.

7. The petitioners have presented this appeal.

8. Mr. <NAME>, learned counsel for the appellants contended that the view taken by the <ORG> that the father of the deceased could not maintain a petition for compensation under Section 110-A of the Act, was clearly unsustainable.

9. In order to appreciate the above contention, it is necessary to set out certain statutory provisions.

10. Sub-section (1) of Section 110-A of the Act reads:

"110-A (1). An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made:--

(a) by the person who has sustained the injury; or

(b) where death has resulted from the accident, by the legal representatives of the deceased; or

(c) by any agent duly authorised by the person injured or the legal representatives of the deceased, as the case may be.

11. In exercise of the powers conferred by Section 111-A of the Act, <ORG> made rules called 'the Mysore Motor Vehicles Rules, 1963'. The title of Chapter VII of these Rules is "<ORG>".

12. Rule 342 of those Rules contains certain definitions,

13. Sub-rule (2) of Rule 342 provides that the expression 'legal representative' shall have the meaning assigned to it under Sub-section (11) of Section 2 , C. P. C.

14. The expression 'legal representative' had not been defined in the Code of Civil Procedure, 1882. The definition of that expression was embodied in Section 2(11) of the Code of Civil Procedure, 1908. The definition reads:

"2 (11). 'legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party suing or sued."

15. Section 8 of the Hindu Succession Act provides, inter alia, that the property of a male Hindu dying intestate shall devolve firstly upon the heirs specified in Class I of the Schedule to that Act; and that if there is no heir of Class I, then upon the heirs specified in Class IT of that Schedule. Son, daughter, widow and mother are among the heirs specified in Class I of the Schedule, while father comes in Class II of that Schedule.

16. The Fatal Accidents Act , 1855, was enacted to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong.

17. Section 1-A of that Act reads:

"1-A. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable to an action or suit if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor administrator or representative of the person deceased;

and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amounts so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct."

18. The <ORG> took the view that as the mother of the deceased was alive, the father could not be regarded as an heir of the deceased under Section 8 of the Hindu Succession Act, that the father could not be regarded as a legal representative of the deceased in view of the definition of the expression 'legal representative' as contained in Section 2(11) Civil Procedure Code, which definition has been adopted in Rule 342 of the Mysore Motor Vehicles Rules and that hence petitioner 1 (the father) had no locus standi to bring a petition under Section 110-A of the Act claiming compensation.

19. In support of his contention. Mr. <NAME> relied on the decision of this court in <CITATION> , 1969 Acc. C.J. 439 = (AIR 1970 Mys 67). There, the question that arose was whether the adjudication of a father's claim to compensation for the death of his son by an automobile accident, was taken away from the jurisdiction of <ORG> and placed within the exclusive jurisdiction of <ORG>. <NAME>, J., who spoke for the Bench, referred to the provisions of the Fatal Accidents Act 1855, and said that Sections 110 to 110-F of the Act have not created any new right or any new remedy but have only changed the forum for enforcement of the remedy, and that the term 'legal representative' in Section 110-A included the person referred to as representative in Section 1-A of the Fatal Accidents Act, namely, the wife, or husband, parent and child of the deceased. His Lordship added that since the father comes within the meaning of 'parent' he can make his claim before <ORG> and that the jurisdiction of <ORG> to entertain his suit for such claim, is clearly barred.

20. Referring to Sub-rule (2) of Rule 342 (of the Mysore Motor Vehicles Rules) which adopts the definition of the term 'legal representative' in Section 2(11) Civil Procedure Code. His Lordship said that that term used in Section 110-A of the Act, cannot have the same meaning as that attributed to it in Section 2(11) Civil Procedure Code, and that the right of the representative of a person who died of an automobile accident, to put forward a claim under Section 110-A of the Act," cannot be confined to persons who come within the ambit of the term 'legal representative' as defined in Section 2(11) Civil Procedure Code. In that view. His Lordship held Sub-rule (2) of Rule 342 to be ultra vires of the Act and invalid.

21. The observations of <ORG> in <CITATION> , as to the scope of the expression 'legal representative', do not appear to have been brought to the notice of the Bench of this court that decided the case, 1969 Acc. CJ 439 = (AIR 1970 Mys 67). In <ORG> case, <ORG> quoted with approval the following observations of <NAME>, J., who spoke for the Bench in <NAME> v. <NAME>, (1904) 8 Cal WN 843.:

"From this review of the authorities it will appear that judicial decisions have extended the sense of the term 'legal representative' beyond that of its ordinary meaning of 'administrator, executor, and heir' and though such extension has been attended with doubt and has in some cases been the subject of conflicting decision it appears to me to be too late now to endeavour, however convenient it might be, to secure for the term that which is perhaps its strict and legitimate sense. I agree, therefore, in holding that the term is not limited to administrators, executors and heirs and am of opinion that it must now be held to include any person who in law represents the estate of a deceased judgment-debtor."

22. <ORG> added that the view expressed by <NAME>, J., has been embodied in the present definition of 'legal representative' by Section 2(11) C. P. C.

23. The above observations of Woodroffe, J., which have been approv-ed by <ORG>, would indicate that the term 'legal representative' as defined in Section 2(11) Civil Procedure Code, is not restricted in its meaning to heirs, executors and administrators of the deceased as the Bench which decided 1969 Acc. CJ 439 = (AIR 1970 Mys 67) seems to have thought. However, this does not affect the main conclusion of their Lordships that the term 'legal representative' in Section 110-A of the Act includes the persons referred to as 'representatives' in Section 1-A of the Fatal Accidents Act, namely, the wife or husband, parent and child of the deceased,

24. Mr. <NAME> next relied on the decision of <ORG> and Haryana in <ORG> v. <NAME>, 1970 Acc. CJ 37 (Punj). There, the father of two boys who died of an automobile accident, had filed a claim application under Section 110-A of the Act. That application was resisted on the ground that the claim should have been made both on behalf of the father and the mother of the deceased and that as the father alone had made the claim, no amount could be awarded in respect of the loss caused to the mo-ther. Repelling that contention. <NAME>, J., observed that under the Fatal Accidents Act , compensation is available to all those members of the family who suffer monetary loss as a result of the death of a member by accident, that the father is also entitled to compensation as a member of the family and that it is not necessary that all the members of the family should join as claimants.

25. In the light of the above decisions, it is clear that under the Fatal Accidents Act , the father of the deceased, is one of the persons who is entitled to the benefit of the compensation and that he can bring a claim petition as a representative of the person deceased. The view taken by the <ORG> that the father of the deceased is not a legal representative of the deceased, who can make a claim petition under Section 110-A of the Act, is clearly unsustainable. In that view, it is immaterial whether appellant-2, the mother of the deceased, did or did not join in that claim petition. It also becomes unnecessary to go into the question whether appellant-2 (the mother) was prevented by sufficient cause from making the claim for compensation within the time fixed in Section 110-A .

26. In the result, this appeal is allowed; the order of the <ORG> dismissing the petition is set aside and the same is remanded to the <ORG> with a direction to dispose of the petition according to law and in the light of this judgment.

27. The court-fee paid by the appellants on the memorandum of appeal will be refunded to them. The costs in this appeal will be costs in the cause. Advocate's fee Rs. 150/-.


CASE NO.: Appeal (civil) 1990 of 1995 PETITIONER: MATHURAM AGRAWAL RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 28/10/1999 BENCH: S.P. BHARUCHA & B.N. KIRPAL & V.N. KHARE & S.S.M. QUADRI & D.P. MOHAPATRA JUDGMENT:

JUDGMENT 1999 ( 4 ) Suppl. SCR 195 D.P. MOHAPATRA, J. This case calls in question the vires of proviso to clause (b) of sub-section (2) of Section 127-A of Madhya Pradesh Municipalities Act, 1961 (for short the 'Act') and the levy and collection of property tax in respect of the buildings owned by the appellant.

The relevant facts of the case, shorn of unnecessary details, may be stated as under:

The appellant and respondents 4 to 7 are joint owners of 13 separate items of house properties bearing No. 56/2(1) to 56(2)/13 situated in ward No. 15 of Raigarh Municipal area. The assessment proceeding for the purpose of levying property tax was initiated under the provisions of the Madhya Pradesh Municipalities Act, 1961 (M.P. Act No. 37 of 1961) (hereinafter referred to as 'the Act') by <ORG>, Raigarh, respondent no.2 herein. The Municipality purporting to invoke the proviso to the section 127-A(2) of the Act aggregated the annual letting value of all the buildings and levied property tax on the deemed annual letting value so aggregated. The assessment order was followed by the demand notice.

Feeling aggrieved by the levy and collection of property tax in the manner aforementioned, the appellant and respondents 4 to 7 preferred appeal under Section 139 of the Act before the Civil Judge Class-II, Raigarh. The appellate authority allowed the appeal and quashed the assessment order and the demand notice. On a revision petition being filed by the Municipality the District Judge, Raigarh allowed the revision, set aside the order of the appellate authority and confirmed the order of assessment made by the concerned authority.

The appellant and the respondents 4 to 7 filed the Writ Petition in <ORG> challenging the order of assessment, inter alia, on the grounds that it was not in conformity with the provisions of the Act. They also challenged the constitutional validity of the proviso to sub-clause (b) of Section 127(A) (2) of the Act. By the impugned judgment <ORG> of <ORG> rejected the contentions raised by the petitioners including the challenge to the constitutional validity of the proviso to Section 127(A)(2) and confirmed the assessment order of the municipality and dismissed the writ petition. <ORG> placed reliance mainly on the decision of this Court in <CITATION> .,  1 SCC 361 and its own decision in the case of <CITATION> , (1990) M.P.L.J. 28. Thereafter one of the petitioners in the Writ Petition, <NAME>, filed this appeal challenging the judgment of <ORG>.

When the case was taken up by a Bench of two learned Judges of this Court a submission was made on behalf of the petitioner that in the light of the decision of this Court in the case of Administrator, Municipal Corporation, Bilaspur (Supra) decided by a Bench of three learned Judges of this Court construing Section 127(1)(2) of the Act the question as to the constitutional validity of that proviso arises for consideration. Taking note of the said submission the bench passed the order dated 13.2.95, relevant portion of which reads as follows:

"In view of the construction made by a Bench of three learned Judges in the above quoted decision, the question of considering the constitutional validity of the provision does arise. However, the question for consideration also is whether the alternative construction which would support the constitutional validity of the provision is to be preferred and is also available on the language of the statute. It is, therefore, appropriate that the matter is considered by a Bench of five learned Judges."

The question that arises for consideration is when several items of properties (houses, buildings or lands) within the municipality, the annual letting value of each of which dose not exceed Rs. 1,800 per annum, are owned by one person, then, is the owner liable to pay property tax for such properties.

Since determination of the question largely depends on interpretation of Section 127 (A) and its interaction with other relevant provisions of the Act it would be convenient to quote the relevant statutory provisions before proceeding to consider the merits of the case.

S.126 Definition of annual letting value - In this Chapter, the expression "annual letting value" shall mean:

(i) where any building or land is let out, the annual rent for which it is actually let out;

(ii) where the rent of any building has been determined under the Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955), the annual rent as so determined; and

(iii) in any other case, the annual rent for which any building or land exclusive of furniture or machinery contained or situated therein or thereon, might reasonably be expected to let from year to year, and shall include any payment made or agreed to be made by a tenant to the owner of the building or land on account of occupation taxes, insurance or other charges incidental to the tenancy;

Provided that if it appears to the <ORG> that the annual rent of any building or land is much lower than the annual rent for which it might reasonably be expected to let at the time of assessment, such letter rent shall be deemed to be the annual letting value in respect of such building or land."

Section 127 reads as follows:

"127 Taxes which may be imposed (1) A Council may, from time to time and subject to the provisions of this Chapter, and any general or Special order which the State Government may make in this behalf, impose in the whole or in any part of the Municipality any of the following taxes, for the purposes of the Act, namely:-

(0 a tax payable by the owner of houses, buildings or lands situated within the limits of Municipality with reference to annual letting value of the house, building or land called property tax:

127(A) Imposition of property tax (1) Notwithstanding anything contained in this Chapter, as and from the financial year 1976-77, there shall be charged, levied and paid for each financial year a tax on the lands or buildings or both situate in a Municipality other than Class IV Municipality at the rate specified in the table below:

TABLE (0 where the annual letting value 6 per centum of the annual exceeds Rs. 1800 but does not letting value exceed Rs. 6000 (ii) where the annual letting value 8 1/3 per centum of the exceeds Rs. 6000 but does not annual letting value exceed Rs. 12000 (iii) where the annual letting value 10 per centum of the annual exceeds Rs. 12000 but does not letting value exceed Rs. 18000 (iv) where the annual letting value 15 per centum of the annual exceeds Rs. 18000 but does not letting value exceed Rs. 24000 (v) where the annual letting value 20 per centum of the annual exceeds Rs. 24000 letting value

(2) The property tax levied under sub-section (1) shall not be leviable in respect of the following properties, namely:-

(a) building and lands owned by or vesting in-(i) the Union Government

(ii) <ORG>; (iii) the Council;

(b) buildings and lands the annual letting value of which does not exceed eighteen hundred rupees:

Provided that if any such building or land in the ownership of a person who owns any other building or land in the same Municipality, the annual letting value of such building or land shall for the purpose of this clause, be deemed to be the aggregate annual letting value of all buildings or lands owned by him in the Municipality.

(Emphasis supplied) xxx xxx xxx"

From the statutory provisions quoted above it is clear that the incidence of the tax is the house, building or land situated within the limits of the municipality. The tax is to be paid by the owner(s) of the house, building or land. The amount of tax to be paid by the owner(s) is to be determined with reference to the annual letting value of the house, building or land in question. The manner of determination of the annual letting value is prescribed in section 126 of the Act. The Table in Section 127 , which provides for the rate at which the tax is to be levied, starts with property the annual letting value of which exceeds Rs. 1,800 per annum but does not exceed Rs. 6,000, and in such a case the tax is to be levied at 6 per centum of the annual letting value. As the annual letting value of the property escalates the rate of tax increases. The very fact that no rate of tax is prescribed in the Table for a property the annual letting value of which is less than Rs. 1800 clearly indicates the intention of the <ORG> not to levy the tax on such properties. This position is further clarified in clause (b) of subsection (1) of Section 127 in which it is laid down that house, building and lands annual letting value of which does not exceed Rs. 1800 are exempt from property tax.

On a fair reading of the proviso to section 127 (A)(2)(b) it is clear that in respect of any building or land whose letting value is less than Rs. 1800 which is owned by a person who owns any other building or land in the same municipality, the annual letting value of such building or land shall be deemed to be the aggregate annual letting value of all building or lands owned by him in the municipality. The provision also makes it clear that this exception is meant for the purpose of this clause i.e., clause (b) of subsection (2). It follows, therefore, that the exemption to the levy under subsection (1) of section 127(A) will not be available in a situation to which the proviso applies.

Then the further question for determination is whether such a building or land, annual letting value of which does not exceed Rs. 1800, automatically becomes liable for payment of tax and if so what is the rate of tax in such a case. The provision in sub-section (1) of section 127(A) , which is a charging section, makes no provision regarding the rate at which the tax is to be paid in case the building or land in question annual letting value of which is less than Rs. 1800 is to be taxed.

Another question that arises for consideration in this connection is whether sub-section (1) of Section 127-A and the proviso to sub- section 2

(b) should be construed together and the annual letting values of all the buildings owned by a person to be taken together for determining the amount to be paid as tax in respect of each building. In our considered view this position cannot be accepted. The intention of the <ORG> in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter.

In the case of <CITATION> , <ORG> quoted with approval the following passage from the opinion of Lord Russel of Killowen in Inland Revenue Commissioners v. Duke of Westminster, (1936) A.C. 1:

"I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a <ORG>'s view of what it considers the substance of the transaction, the <ORG> thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord <NAME> said many years ago in (1869) 4 H L 100(2) at p. 122: "As 1 understand the principle of all fiscal legislation it is this" If the person sought to be taxed conies within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand if the <ORG>, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be."

In the case of <NAME> (INSPECTOR OF TAXES) v. <NAME>. 1948 The All England Law Reports page 1, Lord <NAME> in his opinion at page 5 observed:

"My Lords, there is a maxim of income tax law which, though it may sometimes be over-stressed, yet ought not to be forgotten. It is that the subject is not to be taxed unless the words of the taxing statute ( unambiguously impose the tax on him. It is necessary that this maxim should on occasion be reasserted and this is such an occasion."

In Administrator, <ORG>, Bilaspur v.. <NAME>, Advocate and another (supra) this <ORG> while accepting the position that each building is a unit for the purpose of taxation and that there I is no provision for taxation in respect of a building having annual letting value less than Rs. 1800 and that the deeming proviso to clause (b) of sub- section (2) as expressly stated is "for the purpose of this claluse", held that since the aggregation of annual letting value of all buildings or lands is permitted, then, all such buildings or lands have to be taken as one unit for the purpose of taxation. The <ORG> was of the view that any other construction would render the proviso nugatory and defeat the object of the Act.

This construction, in our considered view, amounts to supplementing the charging section by including something which the provision does not state. The construction placed on the said provision does not flow from the plain language of the provision. The proviso requires the exempted property to be subjected to tax and for the purpose of valuing that property alone the value of the other properties is to be taken into consideration. But, if in doing so, the said property becomes taxable, the Act does not provide at what rate it would be taxable. One cannot determine the ratable value of the small property, by aggregating and adding the value of other properties, and arrive at a figure which is more than possibly the value of the property itself. Moreover, what rate of tax is to be applied to such a property is also not indicated.

Take, for instance, a case where a person owns 10 buildings, 8 of which are small ones fetching annual rental value of Rs. 1,500 each and the other 2 fetch annual rental value of Rs. 60, 000 each; then applying the ratio of Administrator <ORG>, Bilaspur (supra) the annual rental value of each of the small buildings will come to Rs. 1, 32,000 and the owner will have to pay tax according to the highest slab for each building. Such an intention on the part of the legislature cannot be accepted, particularly in the absence of specific provision in the charging section.

In view of the discussions in the foregoing paragraphs the proviso to clause (b) of sub-section(2) of section 127-A of the Act being contrary to the charging section is struck-down as ultra vires.

The appeal is allowed and the judgment of <ORG> under challenge is set aside. There will, however, be no order as to costs.

V.S.S.

Appeal allowed.