judgement:
Appeal No. 51 of 1972.
(From the judgment and order dated the 16th Oct., 1970 of the.
Gujarat High Court in I.T. Ref.
No. 4 of 1967) 221 V.S. Desai, J. Ramamurthi and Girish Chandra, for the appel lant.
B. Sen, Mrs. ,4.
K. Verma, K.J. John and Shri Narain for the respondents.
Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of Gujarat High Court whereby the High Court an swered the following question referred to it under section 256(1) of the Income tax Act, 1961 (hereinafter referred to as the Act of 1961) in favour of the assessee respondent and against the revenue: "Whether on the facts and in the circumstances of the case, there was a transfer of a capital asset within the meaning of section 45 read with section 2(47) of the Income tax Act, 1961 ?" The matter relates to the assessment year 1962 63, for which the accounting previous year was calendar year 1961.
The assessee who is an individual held 192 shares of Kawelengoji Ginneries Ltd., Kampala, a private limited company incorporated in Uganda (hereinafter referred to as the Uganda company).
Those shares were acquired by the assessee sometimes before January 1, 1954 and he paid Sh.
1000 for each share.
The amount thus paid by the assessee for the 192 shares was Sh.
1,92,000, equivalent to Rs.28,000.
The said company went into voluntary liquidation as per special resolution dated July 10, 1961.
The liquida tors sold the assets of the company in due course and the liquidators account was finally drawn up on July 31, 1961.
As per this account, the assessee became entitled to receive Sh.
4,68,489 at the rate of Sh.
2440.0493 per share as return of capital.
The above amount was equivalent to Rs.3,12,326.
There was thus an excess of Rs.1,84,326.
This amount was received by the assessee during the accounting year.
The Income tax Officer treated the amount of Rs.1,84,326 as capital gains liable to tax within the meaning of section 45 of the Act of 1961.
It was pointed out by him that the Uganda company was not a company within the meaning of section 2(17) of the Act of 1961 and the shareholders thereof could not be said to be entitled to the benefit provided under section 46(2) of the Act of 1961.
Accord ingly, the entire amount was liable to be taxed as above.
On appeal before the Appellate Assistant Commissioner refer ence was made on behalf of the assessee to the definition of the word "transfer" in section 2(47) of the Act of 1961.
according to which transfer in relation to a capital asset includes the sale, exchange or relinquishment of the asset or the extinguishment of any rights therein or the compulsory acquisition thereof under any law.
There was no dispute that the present was not a case of sale, exchange or compulsory acquisition of capital asset within the meaning of section 2(47) of the Act of 1961.
The only question was whether there was "relinquishment of the asset or the extinguishment of any rights therein".
The Appellate Assistant Commissioner held that for the relinquishment of an asset, the asset must 222 continue to be in existence.
Applying that criterion, the Appellate Assistant Commissioner held that there was no relinquishment of the asset.
There was, however, in the opinion of the Appellate Assistant Commissioner, extinguish ment of the rights in the capital assets as represented by the shares and therefore the amount was liable to be taxed to capital gains tax.
The appeal of the assessee was ac cordingly dismissed.
On second appeal the assessee, apart from contesting the taxability of the amount of Rs.1,84,326 as capital gains, raised two other contentions.
One of those contentions was that in any event the capital gains should have been computed by deducting the fair market value of the asset as on January 1, 1954 from the amount received by the assessee.
The other contention was that having regard to the provisions of section 114 of the Act of 1961 the levy of capital gains tax should have been much less than the amount actually calculated by the Income tax Officer.
We are in the present case not concerned with the second con tention.
The first of these two contentions was, however, accepted and it was held that taking into account the value of the shares as on January 1, 1954 the capital gain, if chargeable, would work out to be Rs.1,23,590.
The Tribunal then went into the question as to whether there was transfer of capital assets and came to the conclusion that there was no such transfer within the meaning of section 2(47) of the Act of 1961.
The contention of the revenue that there had been extinguishment of the rights of the assessee was re pelled.
In the result the appeal of the assessee was ac cepted.
On the application made by the appellant, the question reproduced above was then referred to the High Court.
The High Court in answering the question referred to it in the negative, held that the transfer contemplated by section 45 should be one as a result of which consideration is received by the assessee or accrues to him.
When a shareholder receives moneys representing his share on dis tribution of the net assets of the company in liquidation, he, in the opinion of the High Court, receives such moneys in satisfaction of the right which belongs to him by virtue of his holding the share and not by way of consideration for the extinguishment of his right in the share.
The High Court accordingly concluded that when a shareholder receives his share on final distribution of the assets of the company in liquidation, there is no transfer of capital assets by him which would attract the charge of capital gains tax.
The judgment of the High Court is reported in Before proceeding further, we may mention that tax on capital gains was charged for the first time by the Income tax and Excess Profits Tax (Amendment)Act, 1947 (Act 22 of 1947) which inserted section 12 B in the Indian Income tax Act, 1922.
It taxed capital gains arising after March 31, 1946.
The tax on capital gains was virtually abolished by the Indian Finance Act, 1949 which confined the operation of section 12 B to capital gains arising before April 1, 1948.
Capital gains tax was.
however.
revived with effect from April 1. 1957 by the Finance (No. which insert ed new section 12 B instead of the old section 12 B in the Act of 1922.
223 In the present appeal we are, however, concerned with the Act of 1961.
It may be appropriate at this stage to refer to the relevant provisions of that Act at the material time.
Section 2(14) of the Act defined capital assets to mean property of any kind held by an assessee, whether or not connected with his business or profession, but does not include certain categories of property which need not be mentioned as we are not concerned with them.
It is the common case of the parties that the shares held by the assessee in the Uganda company constituted capital asset.
"Company" has been defined in Section 2(17) of the Act to mean (i) any Indian company, or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assesable or was assessed under the Indian Income tax Act, 1922 (XI of 1922), as a company for the assessment year commencing_from the 1st day of April, 1947, o.r which is declared by general of special order of the Board to be a company for the purposes of the Act.
The learned counsel for the parties are agreed that the Uganda company was not a company within the meaning of the word "company" as given in the above provision.
Transfer in relation to a capital asset has been defined in clause (47) of section 2 of the Act, and the definition reads as under: "(47) 'transfer ' in relation to a capi tal asset, includes the sale, exchange or relinquishment of the asset or the extin guishment of any rights therein or the compulsory acquisition thereof under any law;" Section 45 deals with the levy of tax on capital gains, and reads as under: "45 Capital gains.
Any profits o.r gains 'arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in section 53 and 54, be chargeable to income tax under the head 'Capital gains ' and shall be deemed to be the income of the previous year in which the transfer took place.
" Section 45 deals with the levy of tax on capital gains, and reads as by companies in liquidation reads as under: "46.
Capital gains on distribution of assets by companies in liquidation. (1) Notwithstanding anything contained in section 45, where the assets of a company are dis tributed to its shareholders on its liquida tion, such distribution shall not be regarded as a transfer by the company for the purposes of section 45.
(2) Where a shareholder on the liquidi sation of a company receives any money or other assets from the company, he shall be chargeable to income tax under the head 'Capital gains ', in respect of the money so received or the market 224 value of the other assets on the date of distribution, as reduced by the amount assessed as dividend within the meaning of sub clause (c) of clause (22) of section 2 and the sum so arrived at shall be deemed to be the full value of tire consideration for the purposes of section 48.
" Section 47 specifies some of the transactions which shall not be regarded as transfers.
Section 48 prescribes the mode of computation and deductions in the matter of tax on capital gains.
There can be no dispute that the amount received by the assessee in respect of the 192 shares of the Uganda company held by him in excess of the cost of acquisition of those shares constituted profits or gains.
The question with which we are concerned is whether those profits or gains arose from a transfer of the capital assets.
The argument of Mr. Desai, learned counsel for the appellant, is that when the assessee received the sum of Sh.
4,68,489 in lieu of the 192 shares held by him in the Uganda company, he received that amount as a result of transfer.
The word "transfer" in relation to a capital asset.
according to the learned counsel, includes extinguishment of any rights therein.
The words "extinguishment of any rights therein", it is submitted, would cover the case of the assessee when he received the amount mentioned above on account of the shares held by him in the Uganda company.
The above conten tion has been controverted by Mr. Sen who was urged that there was no transfer contemplated by law as to attract the levy of tax on capital gains.
After giving the matter our earnest consideration, we are of the opinion that the con tention of Mr. Sen is well founded.
The question as to whether the distribution of assets of a company has gone into voluntary liquidation to its share holder would amount to sale, exchange, relinquishment or transfer within the meaning of section 12 B of the Act of 1922 as amended in 1956 was considered by this Court in the case of Commissioner of Income tax, Madras vs Madurai Mills Co. Ltd.(1) While answering that question in the negative, this Court held that the act of the liquidators in distrib uting the assets of the company which had gone into volun tary liquidation did not result in the creation of new rights.
It merely entailed recognition of the legal rights which were in existence prior to the distribution.
This Court further observed "When a shareholder receives money representing his share on distribution of the net assets of the company in liquidation.
he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer.
" The above observations, though made in the context of sec tion 12 B of the Act of 1922 which related to capital gains in respect of profits or gains arising from sale, exchange.
relinquishment or transfer of capital assets, in our opin ion, would also cover the case of extinguishment of any rights in capital assets.
(1) 225 The matter can also be looked at from another angle.
In the case of Indian companies and the other companies falling within the definition of company, as given in section 2(17) of the Act of 1961, the legislature, has made.
express provision in sub section (2) of section 46 of the Act that where a shareholder on the liquidation of a company receives any money or other assets from the company, he shall be chargeable.
to income tax under the head "Capital gains" in respect of the money so received or the market value of the other assets on the date of distribution as reduced by certain amounts which need not be specified.
But for this provision, it would not have been possible, in our opinion, to charge tax under the head "Capital gains" on the money or other assets of a company received by its shareholder on its liquidation.
The provisions of sub section (2) of section 46, as already mentioned, apply only to the distribution of assets by such companies in liquidation as are covered by the definition of the word "company" in section 2(17) of the Act.
The legislature having made no similar provision in respect of companies other than those which fall within the definition contained in section 2(17), we find it difficult to sustain the levy of tax on capital gains when such other companies distribute assets on liquidation to share holders.
We are not impressed by the argument of Mr. Desai that section 46(2) does not create liability of a share holder to pay tax on capital gains which liability, according to the learned counsel, arises because of section 45, but was enacted with a view to prescribe the mode of calculating capital gains in the event of distribution of the assets of a company in liquidation to its share holders.
The afore said section, in our view, was enacted.
both with a view to make shareholders liable for payment of tax on capital gains as well as to prescribe the mode of calculating the capital gains to the shareholders on the distribution assets by a company in liquidation.
But for that sub section, as already mentioned, it would have been difficult to.
levy tax on capital gains to the shareholders on distribution of assets by a company in liquidation.
Mr. Desai took us through the legislative history of the provisions relating to the levy of tax on capital gains.
A similar attempt was made by the learned counsel for the revenue in the case.
of Madurai Mills (supra) and this Court observed that consideration stemming from legislative histo ry cannot be allowed to override the plain words of a stat ute.
As a result of the above, we dismiss the appeal with costs.
P.H.P. Appeal dismissed.

summary:
The respondent assessee acquired before 1 1 1954 certain shares in a private limited company incorporated in Uganda for Sh.
192002 Rs.1,28,000/ .
The said company went into voluntary liquidation in the year 1961.
The liquidators, sold the assets of the company and the assessee received an amount equivalent to Rs.3,12,326/ .
The Income Tax Officer treated the difference between the amount received on liqui dation and the amount paid by the assessee for the acquisi tion of shares as capital gains liable to tax within section 45 of the Income Tax Act, 1961.
The Income Tax Officer held that since the Uganda company was not a company within the meaning of section 2(17) of the Act, the assessee was not enti tled to the benefit of section 46(2) and, therefore, the entire amount was liable to.
be taxed.
On an.
appeal, the AAC held that the transaction amounted to a transfer within the meaning of section 2(47) because there was extinguishment of the rights in the capital assets as represented by the shares.
The Tribunal held that it was not transfer within the mean ing of section 2(47).
The High Court decided the reference in favour of the assessee on the ground that when a shareholder received monies representing his share on distribution of the net assets of the company in liquidation, he receives such monies in satisfaction of the right which belongs to him by virtue of his holding the share and not by way of consideration for the extinguishment of his right in the share.
Dismissing the appeal by certificate, HELD: (1) The Uganda company is not a company within the meaning of section 2(17).
There was no transfer as contemplated by the Act to attract the.
levy of capital gain tax.
This Court in the case of Madurai Mills has already held that the act of liquidation in distributing the assets of the company which.
had gone into voluntary liquidation did not result in the creation of new rights.
It merely entailed recognition of the legal rights which were in existence prior to the distribution.
[223 C, 224 E F] Commissioner of Income tax, Madras vs Madurai Mills Co. Ltd., , followed.
(2) The legislature made express provisions in section 46(2) for levying capital gains tax in respect of distribution of assets of a company.
But for the said provision distribution of assets on the liquidation of a company would not attract the capital gains tax under section 45.
Since the Uganda company is not a company within the meaning of the Act the provi sions of section 46(2) do not apply to it.
The said distribu tion, therefore, does not attract capital gains tax.
Section 46(2) creates the liabality of a shareholder to pay the tax on capital gains and also prescribes the mode of calculat ing the capital gains.
[225 A F]


judgement:
Appeal No. 297 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 16 10 74 of the Allahabad High Court in Special Appeal No. 169/72.
S.T. Desai, M.K. Garg, K.B. Rohtagi, V.K. Jain and M.M. Kashyap, for the Appellant.
O.P. Rana for Respondents 1 4.
V.M. Tarkunde, Pramod Swarup and R.S. Verma for Respond ent No. 5.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is against the judgment of a Division Bench of the Allahabad High Court, reversing on appeal the decision of learned single Judge, whereby notification dated April 23, 1966 issued by the State Government under section 7(1) of the U.P. Land Acqui sition (Rehabilitation of Refugees) Act, 1948 (hereinafter referred to as the Act) had been quashed.
As a result of the decision of the Division Bench, the writ petition filed by the appellants to quash that notification stood dis missed.
The Sufferers ' Co operative Housing Society, Jaunpur, respondent, applied to the Uttar Pradesh Government in 1955 for acquiring four acres of land for the purpose of erecting houses, shops and workshops for the rehabilitation of the refugees who were members of that society.
At the instance of the State Government, the society deposited a sum of Rs.15,000 towards the cost of the land to be acquired.
In 1964, the society entered into an agreement with the State Government under section 6 of the Act.
The State Government thereafter published on April 23, 1966, the impugned notifi cation and the same reads as under: "Under sub section (1 ) of section 7 of the U.P. Land Acquisition (Rehabilitation of Refugees) Act No. XXVI of 1948, the Governor of Uttar Pradesh is pleased to declare that he is satisfied that the land mentioned in the Schedule is needed and is suitable for the erection of houses, shops and 228 workshops for the rehabilitation of displaced persons and/ or for the provision of amenities directly connected therewith.
All the persons interested in the land in question are, therefore, required to appear personally or by duly autho rised agent before the Compensation Officer of the Distt.
at Jaunpur on the twenty seventh day of April 1966, with neces sary documentary or other evidence for the determination of the amount of compensation under section 11 of the Act.
The Collector of Jaunpur is directed to take possession of the aforesaid land fourteen days after the publication of this notice in the official gazette.
Upon the publication of this notice, the aforesaid land shall be deemed to have been acquired permanently and shall vest absolutely in the State Government free from all encum brances from.
the beginning of the day on which the notice is so published.
SCHEDULE Distt.
Pargana Mauza Municipality PlotNo.
Area Cantonment, Town area or Notified area 154 Mohalla Diwan Shah Kabir alias 152/1 1,00 Tartala Pargana Haveli, Tahsil 152/2 Jaunpur Municipal Area 149 Jaunpur 153 2 shops No. 6 and 7 For what purpose required: for the rehabilitation of displaced persons.
Note: A copy of the site plan may be inspected at the office of the Collector, Jaunpur.
" Subsequent to that notification, the Land Acquisition Offi cer determined the amount of compensation for the land and shops to be acquired at a little over rupees forty one thousand.
The balance of the amount to be paid as compensa tion was thereafter deposited by the society.
On April 10, 1970 the appellants, claiming to be the owners of a part of the land sought to be acquired, fried petition under article 226 of the Constitution of India in the Allahabad High Court with a prayer for quashing the impugned notification.
The notification was assailed on the following three grounds: (1) The notification did not properly specify the lands sought to be acquired; (2) The notification was ultra vires the Act inasmuch as it sought to acquire lands for the rehabilitation of the displaced persons and not for the rehabilitation of refugees; and (3) The notification was not in accordance with the provisions of section 7(1) of the Act.
229 The learned single Judge, while allowing the writ peti tion, did not go into the first ground.
He, however, accepted the second and third grounds and in the result quashed the notification.
On the second ground, the learned Judge referred to the definition in section 2(7) of the Act, according to which refugee means any person who was a resident in any place forming part of Pakistan and who, on account of partition of civil disturbances or the fear of such disturbance, has on or after the first day of March 1947 migrated to any place in the U.P. and has been since residing there.
It was observed that there was nothing to show that the displaced persons for whose benefit the land in question was being acquired had settled in Uttar Pradesh.
Regarding the third ground, the learned Judge expressed the view that the notification under section 7(1) of the Act required that the State Government should indicate in the notification that it had decided to acquire the land.
As the word "decided" was not mentioned in the notification, the notification was held to be not in accordance with law.
On appeal, the Division Bench of the High Court disagreed with the learned single Judge on both the grounds on which he had quashed the notification.
It was held that the notification was substantially in accordance with section 7(1) of the Act.
It was further observed that the society for whose benefit the land was being acquired consisted of refugees.
Dealing with the first ground, namely, that the notification was vague as it did not properly specify the land sought to be acquired, the Division Bench held that all the necessary particulars in respect of the land sought to be acquired had been given.
In the result, the appeal was allowed and the writ petition was dismissed.
In appeal before us, Mr. Desai has assailed the decision of the Division Bench on all the three grounds and has urged that the impugned notification is liable to be quashed on each of those grounds.
We shall accordingly deal with those grounds.
So far as the ground is concerned that the persons for whose rehabilitation the land is sought to be acquired are not refugees, Mr. Desai could not in spite of our query refer us to any paragraph in the writ petition wherein the above ground had been taken.
All the same, he submitted that as the question had been allowed to be agitated before the High Court, we should not debar the appellants from advancing arguments on that score.
The submission made by the learned counsel in this behalf is that there is nothing to show that the persons for whose benefit the land is being acquired arc settled in Uttar Pradesh.
In this respect we are of the view that the question as to whether those per sons are settled in Uttar Pradesh or not is essentially one of fact.
In the absence of any averment in the writ peti tion that the person concerned were not settled in Uttar Pradesh, it is obvious that the material facts having bear ing on this point could not be brought on record.
A party seeking to challenge the validity of a notification on a ground involving questions of fact should make necessary averments of fact before it can assail the notification on that ground.
As such we find it difficult to sustain the contention of Mr. Desai that the persons for whose benefit the land is being acquired were not settled in Uttar Pra desh.
Apart from that, we find that 230 ground No. 13 taken in the writ petition proceeds upon the assumption that the persons for whose benefit the land was being acquired were in fact refugees.
It further appears from the judgment of the Division Bench that there was hardly any dispute before the Division Bench on the point that the respondent society, namely, Sufferers ' Co opera tive Housing Society, consists of refugees and has refugees as its members.
Coming to the second ground taken by the appellants that the notification was not in conformity with section 7(1) of the Act inasmuch.
as it did not state that the State Gov ernment had decided to acquire the land in dispute, we are of the opinion that a reading of the notification which has been reproduced above leaves no manner of doubt that the State Government had decided to acquire the land.
It is stated in the notification that the Governor of Uttar Pra desh is pleased to declare that he is satisfied that the land mentioned in the schedule is needed and is suitable for the erection of houses, shops and workshops for the rehabil itation of displaced persons and/or for the provision of amenities directly connected therewith.
The notification further proceeds to state that the land in question shall be deemed to have been acquired permanently and shall vest absolutely in the State Government free from all encum brances from the date of the notification.
The recital in the earlier part of the notification as well as the opera tive part of the notification that the land shall be deemed to have been acquired permanently and shall vest in the State Government lend clear support for the conclusion that the State Government decided to acquire the land and the order of acquisition was merely an implementation of that decision.
The fact that the word "decided" has not been used in the notification would not prove fatal when the entire tenor of the notification reveals the decision of the State Government to acquire the land and is consistent only with the hypothesis of such a decision having been arrived at.
The courts should be averse to strike down a notification for acquisition of land on fanciful grounds based on hypertechnicality.
What is needed is substantial compliance with law.
The impugned notification, in our opinion, clearly satisfies that requirement.
Lastly, we may deal with the contention advanced on behalf of the appellants that the notification in question is vague.
It is pointed out by Mr. Desai that the total area of the land comprised in field numbers mentioned in the notification is 1.26 acres, while the actual area which is sought to be acquired is one acre.
The learned counsel accordingly urges that it is not possible to find out the particular portions of those fields which are sought to be acquired.
As such, the notification is stated to be vague and thus not in conformity with law.
Our attention has also been invited by Mr. Desaid to the report dated June 23, 1971 of the Tehsildar, who was deputed to deliver possession of the acquired land to the society.
In the said report the Tehsildar stated that he found it difficult to find out as to which part of the fields mentioned in the notification were acquired.
In this respect we find that the report of the Tehsilder itself indicates that when he went to the spot to deliver possession of the acquired 231 land, he did not take with, him the correct plan of the said land.
The impugned notification makes an express reference to the site plan.
An affidavit has been filed on behalf of the society and that affidavit makes it plain that the area of the land which has been acquired comes to exactly one acre.
There appears to be no cogent ground to interfere with the finding of the Division Bench of the High Court that the impugned notification has not been shown to be vague.
We, therefore, find no infirmity in the impugned notification.
The appeal fails and is dismissed but in the circumstances with no order as to costs.
Before we conclude, we would like to observe that the case before us tells a sad tale of delays in a matter which on sheer humanitarian grounds needed to be attended to with expedition.
The case, as would appear from the above, pertains to the acquisition of land with a view to rehabili tate refugees who were uprooted from their hearths and homes in areas now in Pakistan because of disturbances and fear of disturbances which marred the partition of the country.
The refugees for this purpose formed a society, and applied to the administration in 1955 for acquisition of land so that they could erect shops and workshops on that land with a view to earn their livelihood.
It took the administra tion 11 years thereafter to issue necessary notification for the acquisition of the land in dispute.
Four years were thereafter spent because possession of the land could not be delivered.
The only attempt made to deliver possession proved infructuous as the Tehsildar entrusted with this task took a wrong plan.
From 1970 till today the delivery of possession remained stayed because of the writ proceedings initiated by the appellants.
One can only hope that now that the final curtain has been dropped, the matter would be attended to with the necessary promptitude.
P.H.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
U.P. Government issued a notification under Section 7(1) of the U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 for acquiring the land belonging to the appellant for the purpose of Sufferers Cooperative Housing Society.
The Society entered into an agreement with the Government under section 6 of the Act.
The Land Acquisition Officer determined the amount of compensation for the acquired land.
The appellants challenged the validity of the said notifica tion on the following grounds: 1.
The notification did not properly speci fy the land sought to be acquired.
The notification was ultra vires the Act because it sought to acquire land for the rehabilitation of displaced persons and not for the rehabilitation of refugees.
The notification was not in accordance with the provisions of section 7(1) of the Act.
The single Judge of the High Court did not go into the first ground but accepted the second and third grounds and quashed the notification.
He held that according to the definition of refugees in section 2(7) a refugee is a person who has migrated from Pakistan to any place in the U.P. and has been since then residing in U.P. and that there was nothing to show that the displaced persons who are the members of the Society had settled in U.P. While accepting the third ground the learned Judge held that section 7(1) requires to indicate in the notification that it had decid ed to acquire the land.
However, the notification did not mention the expression "decided".
On an appeal, the Division Bench disagreed with the conclusions of the Single Judge and allowed the appeal.
The Division Bench held that the notification was substantially in accordance with the sect.ion 7( 1 ) and that the members of the Society consisted of refugees.
The Division Bench also held that the notification was not vague and it proper ly specified the land sought to be acquired.
In an appeal by Special Leave the appellants repeated the 3 grounds.
Dismissing the appeal HELD: 1.
The ground about the members of the Society not being refugees has not been taken in the Writ Petition at all.
The question whether those members have settled in U.P. is essentially one of fact.
In the absence of any averment in the writ petition the material facts having bearing on the point could not be brought on record.
A party seeking to challenge the validity of a notifi cation on a ground involving questions of fact should make necessary averments of fact before it can assail the notification on that ground.
[229 F H] 227 2.
The recital in the earlier part of the notification as well as the operative part of the notification that the land shall be deemed to have been acquired permanently and shall vest in the State Government lends clear support to the conclusion that the State Government decided to acquire the land and the order of acquisition was merely an implementa tion of that decision.
The fact that the word decided has not been used in the notification would not prove fatal when the entire tenor of the notification reveals the decision of the State Govt.
to acquire land.
The court would not strike down a notification for acquisition on hypertechnicality; what is needed is sub stantial compliance with law and the impugned notification clearly satisfies that require ment.
[230 D F] 3.
The contention that the notification in question is vague is not substantiated.
The notification makes an express reference to the site plan.
[230 G 231 A]


judgement:
il Appeal No. 71 of 1972.
(From the Judgment and Order dated the 18th December, 1964 the Calcutta High Court in Matter No. 199/61).
T.A. Ramachandran and D.N. Gupta, for the appellant.
B.B. Ahuja and R.N. Sachthey, for respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of the Calcutta High Court whereby the High Court answered the following question referred to it under section 27 of the Wealth Tax Act in favour of the revenue and against the assessee appellant: "Whether on the facts and in the circum stances of the case, the provision of Rs.49,19,520/ made by the assessee for its tax liability less the amount of the last instalment of advance tax constituted a debt owed by the assessee within the meaning of clause (m) of section 2 of the Wealth Tax Act on the relevant valuation date ?" The matter relates to the assessment year 1958 59, the relevant valuation date for which was December 31, 1957.
A sum of Rs.49,19,520/ was provided for in the books of the appellant for the dis 3 1546 SCI/76 296 charge of its tax liabilities.
The appellant claimed the amount as a deduction in the computation of the net wealth.
The claim was disallowed by the wealth tax officer, the Appellate Assistant Commissioner of Wealth Tax and the Tribunal.
On an application filed by the appellant, the Tribunal referred the question reproduced above to the High Court.
The High Court, while answering the question in favour of the revenue and against the assessee appellant, relied upon its earlier decision in the case of Assam Oil Co. Ltd. vs Commissioner of Wealth Tax, Central Calcutta(1).
The decision in the case of Assam Oil Co, Ltd. relied upon by the High Court was reversed on appeal by this Court.
Naturally therefore at the hearing of the appeal, Mr. Rama chandran, learned counsel for the appellant, has drawn our attention to that decision of this Court in the case of Assam Oil Co. vs Commissioner of Wealth Tax, Central Calcut ta(2).
It was held in that case by majority that the amount set apart by the appellant company in its balance sheet as on December 31, 1956 as an estimated provision for meeting its tax liability, less the last instalment of the demand of the advance tax, was a debt owed by the appellant company on December 31, 1956, the relevant valuation date, within the meaning of section 2(m) of the Wealth Tax Act, 1957, and was deductible in computing its net wealth as on that date.
Following that decision, we are of the view that the answer to the question referred by the Tribunal to the High Court should be in the affirmative in favour of the assessee appellant and against the revenue.
Mr. Ahuja submits that the view taken by the majority in the case of Assam Oil Co. Ltd. needs reconsideration.
This Bench, however, is bound by that decision.
Following that decision, we accept the appeal, set aside the judgment of the High Court and answer the question referred by the Tribunal in the affirmative in favour of the assessee appellant and against the revenue.
The parties in the circumstances shall bear their own costs of this Court as well as of the High Court.
P.H.P. Appeal allowed.

summary:
The appellant made a provision for a sum of Rs.49,19,520/ in his books of account for the discharge of its tax liabil ities.
The appellant claimed deduction of the said amount for computation of his net wealth on the ground that it was a debt owed by the assessee within the meaning of section 2(m) of the Wealth Tax Act.
The claim was disallowed by the Wealth Tax Officer, the Appellate Asstt.
Commissioner of Wealth Tax and the Tribunal.
The High Court of Calcutta answered the reference in favour of the revenue and against the assessee relying on its earlier decision in the ease of Assam Oil Co. Ltd. Allowing the appeal by certificate, HELD: This Court has reversed the decision of Calcutta High Court in the case of Assam Oil Co. Ltd. In that case this Court held by majority that the amount set apart by an assessee in his balance sheet on the valuation date as an estimated provision for meeting its tax liability less the last instalment of the payment of the advance tax was a debt owed by the assessee within the meaning of section 2(m) of the Wealth Tax Act, 1957 and was deductible in computing its net wealth as on that date.
The Court followed the said deci sion.
[296C G] Assam Oil Co. vs Commissioner of Wealth Tax, Central Calcut ta, followed.


judgement:
Appeal No. 473 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 26 2 1976 of the Allahabad High Court in Second Appeal No. 2068/75).
D.P. Singh, R.P. Singh, L.R. Singh, Rajev Dutta and P.K. Jain, for the appellants and R. 2. 214 D. Mukherjee and Amlan Ghosh, for respondent No. 1.
The Judgment of the Court was delivered by BEG, J.
The respondent was initially appointed as an Ac countant 10th July, 1969, in the Varanasaya Sanskrit Vishwavidyalaya Varanasi (hereinafter referred to as the University ').
On 4th December, 1969, he was transferred to another post, that of a "Senior Assistant".
In January, 1970, Dr. Shambhu Nath Singh, who was the permanent Lecturer in Hindi in the University proceeded on long leave, and the plaintiff respondent, being already in the service of the University, was asked to teach classes for the time being Applications 'were invited for filling up the, post of Dr. Singh.
The advertisement said that the appointment was to be temporary but likely to be made permanent later.
The plain tiff respondent, who was already officiating, also applied.
He was temporarily appointed on 25th February, 1970.
On 23rd April, 1970, the Registrar of the University gave the plaintiff[respondent a notice that his temporary appointment would terminate on 30th April, 1970.
The plaintiff respond ent promptly brought his first suit in the Court of Munsif City, Varanasi, to restrain the University from appointing any one else in his place; but, this suit was ultimately dismissed.
On 15th July, 1970, Dr. Singh had resigned from his post so that the permanent vacancy was there to be filled up.
At that time, the plaintiff 's suit, mentioned above, was still pending.
A Selection Committee of the University interviewed candidates, including the plaintiff respondent on 2nd November, 1970, and submitted a list of names for appointment to the post.
In this list, the plain tiff respondents name was placed first.
As the Executive Committee of the University was not in session, it appears that the Vice Chancellor appointed the plaintiff on 1st February, 1971, on the basis of the recommendations of the Selection Committee.
The Vice Chancellor purported to act under Section 13, sub.
section (7) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956 (hereinafter referred to as 'the Act ').
The Executive Committee of ' the University then passed a resolution on 17th or 18th March, 1971, approv ing what it assumed to be the recommendation of the Selec tion Committee to appoint the plaintiff respondent tempo rarily.
It also decided to advertise for the post again.
On 10th April, 1971, the plaintiff respondent was informed by the Registrar of the University, communicating the decision of the Executive Committee, that his appointment was to continue only, upto the end of the current academic session.
On 15th May, 1971, the plaintiff respondent filed his second suit, now before us, for a permanent injunction to restrain the appellant University from terminating his services.
This suit was dismissed by an Additional Civil Judge.
On an appeal it was decreed by the Additional District and Ses sions Judge of Varanasi.
The High Court of Allahabad, in second appeal, affirmed the judgment and order under appeal before it.
The defendant University is now before this Court by grant of special leave to appeal.
The case of the plaintiff respondent was: firstly, that the vacancy in which he was to be appointed being permanent and the procedure of appointment through a Selection Commit tee being meant for permanent appointments, the plaintiff respondent was actually recommended for 215 a permanent appointment, but, there had been an alteration and interpolation in the recommendation of the Selection Committee so as to make it appear that the recommendation was only for a temporary appointment secondly, that the Vice Chancellor, in any case, had the power to make a permanent appointment under Section 13, sub.
section (7) of the Act and he had done so, thirdly, that the plaintiff respondent 's ap pointment being complete and permanent, the Executive Com mittee of the University had no power left to nullify it; and lastly, that the authorities of the University, that is to say the Vice Chancellor and the Executive Committee, had (in the words used by the plaintiff respondent): "xx xx in collusion with one another with a view to put an end to the plaintiff 's services as Lecturer in Hindi in utter disre gard of the statutes and rules and the ap pointment letter issued by the then Vice Chancellor have collusively arranged and made manipulation in the report of Selection Com mittee and resolution of the Executive Commit tee for an order dated 10th April, 1971, and, in colourable exercise of power, are threaten ing to treat the plaintiff 's appointment as continuing till the end of Session but the plaintiff is continuing to discharge his function as permanent lecturer in Hindi and on account of interim injunction granted in suit No. 289 of 1971 for permanent injunction restraining the defendants terminating the services of the plaintiff the defendants have not been able to do any act adverse to the interest of the plaintiff".
The Trial Court had held that, even if there had been an interpolation of the word temporary in the recommendation of the Selection Committee for a proposed appointment, it did not affect the result because the Vice Chancellor had nei ther the power to make a permanent appointment nor had he done so by means of his order dated 1 st February, 1971, which merely said that the plaintiff respondent was appoint ed to lecture without specifying whether the appointment was to be temporary or permanent.
It appears to us that the Appellate District Court had been very much carried away by the fact that there had been, in its opinion, an alteration or interpolation in the recom mendation of the Selection Committee although the Committee had no power whatsoever to determine the nature of the appointment of the plaintiff respondent.
The Appellate Court had, therefore, reached the conclusion, which did not really follow from this finding, that the appointment of the plaintiff respondent was permanent in the eye of law.
It also held that the Executive Committee had no power whatso ever to alter or touch the terms of the appointment made by the Vice Chancellor, which amounted to an appointment on probation for two years.
It reached this surprising conclu sion despite the complete absence in the Vice Chancellor 's order of any mention of a probation.
The Appellate Court had granted an injunction in the following terms: "The defendants respondents are perma nently restrained from advertising the post of Lecturer in Hindi and from caus 216 ing any interference in the plaintiff 's dis charge of his duties as lecturer in Hindi in the Varanasaya Sanskrit Vishwavidyala by terminating his services or from withholding his salary in pursuance of resolution No. 44 dated 17/18 3 1971 passed by the Karya Kariti ni Parishad of the Varanasaya Sanskrit Vish wavidyalaya and order No. 3 dated 10 4 1971 (exhibit 1 ) passed by the defendant respondent No. 3".
The High Court, in agreement with the first Appellate Court, had interpreted Section 13(7) of the Act as confer ring the power of absolute appointment to a permanent vacan cy upon the Vice Chancellor.
It had repelled the contention that Section 23(1)(g) of the Act gives exclusive powers to the Executive Committee to make appointments of teachers because that power is: "Subject to the provisions of this Act and the Statutes".
The power is "23 (1) (g) to appoint the officers, teachers and other servants of the Vishva Vidyalaya, to define their duties and the conditions of their service and to provide for the filling of casual vacancies in their posts," The High Court sustained the injunction, but had modified it considerably by what it called a clarification in the following words: "xxx as it is not a yet certain whether the position of the plaintiff respondent at present is that of probationer or a permanent employee, if for any valid reason the services of the plaintiff are terminated hereafter, the permanent injunctions granted to the plain tiff respondent by the lower appellate court shall become inoperative and unenforceable".
After the High Court had diluted the injunction in a type of case in which the desirability of granting such a relief was very doubtful, it was perhaps not very necessary for this Court to consider the matter under Article 136 of the Constitution.
Nevertheless, as this Court had thought fit to grant special leave in this case and the High Court 's findings are not unequivocal, we propose to decide the question of interpretation of Section 13 (7) of the Act and other questions which appear to us to have a bearing on the question whether it is desirable for Courts to interfere by means of an injunction in the affairs of educational institutions.
The High Court itself has held that the ordinary power of making appointments of teachers of the University and of defining the nature of appointments and specifying condi tions of service in such cases is vested in the Executive Committee.
The emergency powers under Section 13 (7 ) of the Act are obviously intended for certain emergent situa tions necessitating "immediate action".
Before they can be exercised it must appear that there is, in fact, such a situation as to warrant the exercise of extraordinary powers conferred under Section 13 ( 7 ) of the Act.
It is apparent that the Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter".
It seems to us to be rather extraordinary that despite these clear indications of the situation in which 217 and the extent to which the Vice Chancellor may exercise his emergency powers, it should have been held by the first Appellate Court and affirmed by the High Court that the Vice Chancellor had a power to make an absolute or clear appoint ment without any restriction or obligation to place the matter before the Executive Committee for confirmation.
We find that the Appellate Court had gone to the extent of saying that the Executive Committee had "no jurisdiction" or power left to consider the case.
We think that this is an impossible view to take in view of the clear meaning of the words used in Section 13(7) of the Act.
The object of the provision for reporting the matter to the body which deals with it in the ordinary course could only be to leave the final decision to that body when it does meet.
In other words, the powers of the Vice Chancellor was, in our opin ion, confined to making a tentative decision which, whether he meant the appointment to be temporary or permanent, was subject to confirmation by the Executive Committee.
Until then it was not final.
When that body refused to treat the appointment as permanent and to re advertise the post, it clearly indicated its ;intention to specify the nature of the plaintiff respondent 's appointment which it alone could do.
Although we are not satisfied that circumstances existed which justified the use of emergency powers of the Vice Chancellor under Section 13(7) of the Act, yet, we do not think it possible to enter upon this enquiry as no argument seems to us to have been advanced on this aspect in the High Court or in the District Courts.
We, however, think that the first Appellate Court had much too lightly believed that the plaintiff appellant had been a victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI, Rule 4, Civil Procedure Code, which lays down: "In all cases in which the party plead ing relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms, aforesaid, particulars (with dates and items if neces sary) shall be stated in the pleading".
We do not think it is enough to state in general terms that there was "collusion" without more particulars.
This Court said in Bishundeo Narain & Anr.
vs Seogeni Rai & Ors.
C) (at p.556) as under: "General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influ ence and coercion".
We have already set out the general allegations of alleged collusion by which the plaintiff respondent seemed to imply some kind of fraud.
He indicated no reason for this and made no specific allegation against any particular person.
(1) ; , 556 218 Apart from some suspicion surrounding the alleged alter ations in the recommendation of the Selection Committee, which did not have as the Appellate Court rightly held the power to determine the nature of appointment of the plain tiff respondent, nothing more seems to have been proved here at all on the findings of fact recorded.
It is in evidence that the Selection Committee itself was presided over by the Vice Chancellor.
It is true that the alterations have not been initialed.
But, considering the most unsatisfactory and haphazard manner in which the records of this University had been kept (we have examined the original records), we would not be surprised if the actual proceedings were, quite honestly, recorded in this fashion.
If the Vice Chancellor, who presided, had any actual prejudice or animus against petitioner, he would not be a party to placing the plain tiff 's name first let alone the recommendation for a tempo rary appointment of an employee whose worth must be known to him.
There was nothing to prevent a Selection Committee from making a particular recommendation of this kind.
It certainly had no power to make the appointment which vested only with the Executive Committee.
But, its powers of recom mendation were not fettered.
At any rate, no rule was shown to us as to how it should send its report.
Furthermore, if the Vice Chancellor was prejudiced against the plaintiff respondent and had even altered records, he could not have passed an order of appointment without even clearly specify ing that the appointment was temporary.
The original order on the record shows that the petitioner was appointed with out specifying whether he was being appointed permanently or temporarily.
Obviously, if the Vice Chancellor did not have the power to make a permanent appointment, as we think he did not, we do not think that it would have made a differ ence even if he had purported to make a permanent appoint ment which would have been invalid.
However, on the exact terms of the order of the Vice Chancellor, it could not be said that he had passed any order for a permanent appoint ment.
The resolution of the Executive Committee, which was also presided over by the Vice Chancellor, could not be said to be dishonest or collusive.
We think that the first Appellate Court was unduly swayed by what it thought was a dishonest interpolation in the report of the Selection Committee.
The result of the consideration of the applicable provi sions and the pleadings and findings of fact in the case before us is that we think that the plaintiff respondent has failed completely to show that the resolution of 17 18th March, 1972, of the Executive Committee, which had the final power to appoint and to specify conditions of service, under Section 23(1)(g) of the Act, could be said to be either collusive or inoperative.
We would also like to observe that, in a matter touching either the discipline or the administration of the internal affairs of a University, Courts should be most reluctant to interfere.
They should refuse to grant an injuction unless a fairly good prima facie case is made out for interference with the internal affairs of an educational institutions.
We presume that the plaintiff respondent has been work ing as a result of the injunction granted to him.
We, however, see no justification for continuing the injunction.
We, therefore, allow this appeal to the 219 extent that we withdraw the injunction.
This means that the parties are left free to adjust their differences.
If, upon the strength of any facts subsequent to the institution of the suit now before us, the plaintiff has acquired any new rights which have been infringed he is free to seek relief.
We make this observation as it was stated on his behalf that he claims some rights on the strength of subsequent facts too.
As those are not before us, we can say nothing about them.
The result is that we allow this appeal and set aside the decree and order of the High Court and restore those of the Trial Court.
The parties will bear their own costs throughout.
M.R. Appeal allowed.

summary:
A permanent lecturer 's post fell vacant in the appellant University, and the Executive Committee which ordinarily made the appointment under section 23(1) (g) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956, not being in session, the Vice Chancellor exercised his emergency powers under section 13(7) of the Act to appoint the respondent on the recommendation of a Selection Committee of the University.
Later, the Executive Committee, when apprised of the ap pointment, refused to treat it as permanent and decided to re advertise the post.
The respondent 's suit for permanent injunction against the termination of his services was dismissed by the Trial Court but decreed on appeal.
On second appeal, the High Court upheld the decree.
The respondent contended that his appointment by the Vice Chancellor, made under section 13(7), was permanent and could not be nullified by the Executive Committee as its resolution was collusive and inoperative.
Allowing the appeal, the Court, HELD: (1) The extraordinary power under section 13(7) of the Act are intended for certain emergent situations necessitat ing "immediate action.
" The Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter" The object of such a report is to leave the final decision to that body when it does meet.
The Executive Committee had the final power to appoint and to specify conditions of service under section 23(1)(g) of the Act.
The powers of the Vice Chancellor were confined to making a tentative decision which was subject to confirmation by the Executive Commit tee.
[216 G H, 217 B C] (2) It is not enough to state, in general terms, that there was "collusion" without particulars.
By general allegations of alleged collusion, the plaintiff respondent seemed to imply some kind of fraud, but no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI Rule 4, Civil Procedure Code.
[217 E F] Bishundeo Narain & .Anr.
vs Seogeni Rai & Ors.
; at 556, applied.


judgement:
ON: Criminal Appeal No. 383 of 1976.
(With Criminal Misc.
Petitions Nos. 62 and 380 of 1976.) (Appeal by Special Leave from the Judgment and Order dated 22 8 1975 of the Delhi High Court in Crl.
Writ Peti tion No. 135/75).
241 S.K. Sinha, for the Appellant.
V.P. Raman and Girish Chandra, for the Re spondents.
Tek Chand Chanana (In person) for the appli cant Intervener.
The Judgment of the Court was delivered by BEG J.
A petition under Article 226 of the Constitution was fled in the High Court of Delhi, seeking a writ in the nature of Mandamus "or any other appropriate Writ, direction or order", to restrain the respondents from carrying out the sentence of death passed against Amrit Bhushan Gupta, a person condemned to death for having com mitted culpable homicide amounting to murder.
The petition was flied by Smt.
Shanti Devi, purporting to act on behalf of her son Amrit Bhushan Gupta, who was alleged to be insane.
A Division Bench of the Delhi High Court passed the following order on it: "We have no doubt in our minds that if the petitioner is really insane, as stated in the petition, the appropriate authorities will take necessary action.
This petition, at this stage, we feel, does not justify invocation of the powers of this Court under Article 226 of the Constitution.
Criminal Writ is dismissed.
" Before the grant of special leave to the petitioner on 27th August, 1976 an application for intervention in the matter had been filed by Tek Chand Chanana supported by an affidavit stating the following facts which have not been controverted: "Amrit Bhushan Gupta was sentenced to death for burning alive three innocent sleep ing children aged 14, 8 and 5 years at Srini was Puri on the midnight of 21st June, 1968 by the learned Dist.
& Sessions Judge Delhi under Section 302 and 7 years R.I. section 307 for attempting to murder Tek Chand Chanana (Peti tioner) on 6th June, 1969 with the remarks 'even the extreme penalty of death may appear too mild for the gruesome murder of three children by burning them alive. ' Delhi High Court confirmed the death sentence on 23rd September, 1969.
Amrit Bhushan Gupta 's relatives made the plea of insanity to the High Court but the Hon 'ble High Court refused even to entertain this petition of the ac cused, some dates are given below: Writ petition dismissed on 20th July, 1971 . .
Petition dismissed . . 20th August, 1975.
Supreme Court had dismissed the var ious petitions of Amrit Bhuahan Gupta noted below: 17 1458SCI/76 242 Special leave petition dismissed on 3rd April, 1970.
Petition dismissed on 12th Sept. 1970.
Petition dismissed on 30th April, 1971.
Writ Petition filed on 11 May 1971 was withdrawn on 2nd August, 1976.
Petition dismissed on 8th January, 1976 Rashtrapati had also rejected several mercy petitions of the accused some dates are given below: 1.
10th August, 1970.
6th December, 1970.
8th November, 1971.
February, 1972.
Government of India had fixed various dates for execution, details given below: 1.18th December, 1970.
25th August, 1975 and 19th December, 1975.
Amrit Bhushan Gupta and his relatives have been delay ing the matter on one excuse, or the other.
Their latest plea is nothing new.
It is repetition of their modus operandi.
The petitioner and his wife have been under constant torment since the day their three innocent child ren were gruesomely murdered in 1968 and the punishment awarded to the accused in 1969 is being postponed on the making of the accused.
" This Court when granting special leave in this case was obviously not aware of the facts stated above which were concealed.
Learned Counsel for the appellant, when asked to state the question of law which called for the invocation of the jurisdiction of this Court under Article 136 of the Constitution, could only submit that the provisions of Section 30 of the Prison ers Act, 1900, should be applied to the petitioner.
This section reads as follows: "30.
Lunatic Prisoners how to be dealt with. (1) Where it appears to the State Government that any person detained or imprisoned under any order or sentence of any Court is of unsound mind, the State Government may, by a warrant setting forth the grounds of belief that the person is of unsound mind, order his removal to a lunatic asylum or other place of safe custody within the State there to be kept and treated as the State Government directs during the remainder of the term for which he has been ordered or sentenced to be detained or imprisoned, or, if on the expira tion of that term it is certified by a medical officer that it is necessary for the safety of the prisoner or others that he should be further detained under medical care or treat ment, then until he is discharged according to law.
243 (2) Where it appears to the State Gov ernment that the prisoner has become of sound mind, the State Government shall, by a warrant directed to the person having charge of the prisoner, if still liable to be kept in custody, remand him to the prison from which he was removed, or to another prison within the State, or if the prisoner is no longer liable to be kept in custody, order him to be discharged.
(3) The provisions of Section 9 of the Luna tic Asylums Act, 1858, shall apply to every person confined in a lunatic asylum under sub section (1) after the expiration of the term for which he was ordered or sentenced to be detained or imprisoned; and the time during which a prisoner is confined in a lunatic asylum under that sub section shall be reck oned as part of the term of detention of imprisonment which he may have been ordered or sentenced by the Court to undergo.
(4) In any case in which the State Government is competent under sub section (1) to order the removal of a prisoner to a lunatic asylum or other place of safe custody within the State, the State Government may order his removal to any such asylum or place within any other State or within any part of India to Which this Act does not extend by agree ment with the State Government of such other State; and the provisions of this section respecting the custody, detention, remand and discharge of a prisoner ' removed under sub section (1) shall, so far as they can be made applicable, apply to a prisoner removed under this sub section." Thus, at the very outset, the section invoked relates to the powers of the State Government.
It has nothing to do with powers of Courts.
It only regulates the place and manner of the confinement of a person, who appears to be a lunatic, when his detention or imprisonment ' is either during the trial or during the period when, after the sentence, he is undergoing imprisonment.
In the case of a person condemned to death no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution.
A special provision for a person sentenced to death is to be found in Section 30 of the , which lays down: "30.
Prisoners under sentence of death. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence be searched by, or by order of, the Jailor and all articles shall be taken from him which the Jailor deems it dangerous or inexpediem to leave in his possession.
(2) Every such prisoner shall be con fined in a cell apart from all other pris oners, and shall be placed by day and by night under the charge of a guard.
" 244 The whole objection of the proceedings in the High Court and now before us seems to be to delay execution of the sentence of death: passed upon the appellant.
In view of the number of times the appellant has unsuccessfully ap plied, there can be little doubt that the powers of the High Court and of this Court ought not to have been invoked again.
The repeated applications constitute a gross abuse of the processes of Court of which we would have taken more serious notice if we were not disposed to make some allow ance for the lapses of those who, possibly out of misguided zeal or for some other reason, may be labouring under the belief that they were helping an unfortunate individual desperately struggling for his life which deserves to be preserved.
A bench of this Court 100 was persuaded to pass orders for observation of the convict and obtaining certificates of experts on the mental condition of the convict.
Dr. P.B. Buckshey, Medical Superintendent and Senior Psychiatrist, Hospital for Mental Diseases, Shahdata Delhi, certified as follows: "After careful consideration of the entire mental state of the accused, including his behaviour, I am of opinion that Shri Amrit Bhushan Gupta is a person of unsound mind suffering from Schizophrenia.
Schizophrenia is a basically incurable type of insanity characterised by remissions and relapses at varying intervals.
Shri Gupta was also severely and over whelmingly depressed and appeared to have lost interest in life." Dr. S.C. Malik, Assistant Professor of Psychiatry, G. B. Pant Hospital, New Delhi, gave a more detailed certificate as follows: "Amrit Bhushan Gupta remained mute throughout the ten days period of observation.
He however started communicating to me through writing on 3rd day of encounter.
He exhibits gross disturbance in thinking and his emotion al life appears to be disorganised.
He is suffering from delusion that he is the incarnation of Christ and that I come to his kingdom or 'Palace '.
He does not mutter to himself but at times keeps on staring vacantly in space.
He is unable to write coherent meaningful sentences.
He coins new words and when asked to explain he says it is 'Technologem of myself as CHRIST '.
He also had hallucinations e.g. that Russian planes are shooting his Bunkers and that I should be helping him to drive them away.
He exhibited depressive and suicidal I tendencies towards later period of my observation period and broke off all communication as I did not give him potassium Cyanide 'Poison ' so that he (Christ) may go back to his Kingdom.
In my opinion he is suffering from 'SCHIZO PHRENIA ' (Chronic) which is a serious mental derangement.
He is thus considered to be of unsound mind under the Indian Lunacy Act.
" 245 We have not even got any appeal from a conviction and sentence before us.
We assume that, at the time of the trial of the appellant, he was given proper legal aid and assistance and that he did not suffer from legal insanity either during his trial or at the time of the commission of the offence.
Insanity, to be recognised as an exception to criminal liability, must be such as to disable an accused person from knowing the character of the act he was commit ting when he commits a criminal act.
Section 84 of the Indian Penal Code contains a principle which was laid down in England in the form of Macnaughten Rules.
The section provides: "84.
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
" If at the time of the commission of the offence, the appellant knew the nature of the act he was committing, as we assume he did, he could not be absolved of responsibility for the grave offence of murder.
A Constitution Bench of this Court has upheld the Constitutional validity of the death penalty in Jagmohan Singh vs The State of U.P. (1).
We have to assume that the appellant was rightly convicted because he knew the nature Of his acts when he committed the offences with which he was charged.
The legality or cor rectness of the sentence of death passed upon him cannot be questioned before us now.
So far as the prerogative power of granting a pardon or of remitting the sentence is con cerned, it lies elsewhere.
We cannot even examine the facts of the case in the proceedings now before us and make any recommendation or reduce the sentence to one of life impris onment.
The contention which has been pressed before us, with some vehemence, by learned Counsel for the appellant, is that a convicted person who becomes insane after his convic tion and sentence cannot be executed at all at least until he regains sanity.
In support of this contention learned Counsel has quoted the following passage from Hale 's Pleas of the Crown Vol.
I p. 33: "If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment; and this holds as well in cases of treason, as felony, even the delinquent in his sound mind were examined, and confessed the offence before his arraignment; and this appears by the Statute of 33 H. 8 Cap. 20 which enacted a trial in case of treason after examination in the absence of the party; but this statute stands repealed by the statute of 1 and 2 Phil & Mr. cap.
10 cv.
P.C.p. 6 And, if such person after his plea, and before his trial, become of non sane memory, he [1) ; , 0+ * 246 shall not be tried, or, if after his trial he becomes of non sane memory he shah not receive judgment; or, if after judgment he becomes of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execu tion".
He also cited a passage from Coke 's Insti tutes, Vol.
III, p. 6, which runs as follows: "It was further provided by the said act of 33 H.S. that if a man attained of treason became mad, that notwithstanding he should be executed; which cruel and inhuman law lived not long, but was repelled, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus and omnes perveniat, as before is said; but so it is not when a mad man is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others".
The following passage from Blackstone 's Com mentaries on the Laws England VoL IV, page 18 and 19 was also placed before us : "The second case of a deficiency in will, which excuses: from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic.
For the rule of law as to the latter, which may easily be adapted also to the former, is that 'furiosus furore solum punitur '.
In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for ,treason itself.
Also, if a man in his sound 'mind ' commits an offence, and before arraignment for it he becomes mad, he ought not to be 'called on to plead to it, because he is unable to do so ' with that advice and caution that he ought.
And, if after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence ? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment, he becomes of non sane memory, execution shall be stayed; for parad venture, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judg ment or execution.
Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos roentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if h6 were of perfect memory.
But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M.c. 10.
For, as is observed by Sir Edward Coke 'the execution of an offender is, for example, ut poena ad paucos, metus ad omnes perveniat; but so it is not a miserable spectable, both against law, and of extreme inhumanity and cruelty. and can be of no example to others".
247 A passage from a modern work, 'An Introduction to Criminal Law", by Rupert Cross, (1959), p. 67, was also read.
It reads as follows: "In conclusion it may be observed that there are two other periods in the history of a person charged with a crime at which his sanity may be relevant.
First, although there may be no doubt 'that he was sane when he did the act charged, he may be too insane to stand a trial in which case he will be detained during the Queen 's pleasure under the Crimi nal Lunatics Act, 1800 and 1883, pending his recovery.
Secondly, if he becomes insane after sentence of death he cannot be hanged until he has recovered.
In each of these cases.
the question of sanity is entirely a medical question of fact and is in no way dependent on the principles laid down in M 'Naghten 's case.
The rule that insanity at the time of the criminal act should be a defence is attributable to the fact that the idea of punishing a man for that which was due to his misfortune is revolting to the moral sense of most of the community.
The rule that the accused must be fit to plead is based on the undesirability of trying someone who is unable to conduct his defence, or give instructions on the subject.
The basis of the rule that an insane person should not be executed is less clear.
Occasionally, the rule is said to be founded on theological grounds.
A man should not be deprived of the possibility of a sane approach to his last hours.
Sometimes, the rule is said to be based on the fact that condemned men must not be denied the opportu nity of showing cause by why they should not be reprieved".
Shri S.K. Sinha, learned Counsel for the appellant, has, industriously, collected a number of statements of the position in English law from the abovementioned and other works of several authorities such as Theobald on Lunacy (p. 254), and Kenny 's Criminal Law (p. 74).
On the other hand, learned Additional Solicitor General has relied on the following statement of a modern point of view contained in a book by Mr. Nigel Walker on "Crime and Insanity in England" (Vol.
I: The Historical Perspective) at p. 213 214: "Home Secretaries have been even more cautious in offering justifications for the practice of reprieving the certifiably insane or the mentally abnormal.
Shortt, though he cited Coke, Hale, Hawkins, Blackstone, Hawles, and Stephen to prove that he was bound by the common law, refrained from dwelling on their explanations of it.
which are, as we have seen, far from impressive.
The Atkin Committee, being lawyers, were more respectful to the institutional writers, and argued that 'many (sic) of the reasons given for the merciful view of the common law continue to have force even under modern conditions.
Everyone would revolt from dragging a gibber ing maniac to the gallows '.
If 248 they had reflected they would Surely have conceded that 'modern conditions ' greatly weakened two out of the three traditional reasons.
The abolition of public executions made Coke 's argument irrelevant as well as illogical; and Hale 's argument that if sane the condemned man might be able to produce a sound reason why he should not be hanged was greatly weakened now that the condemned man 's interests were so well looked after by his lawyerS.
As for Hawles ' argument that an insane man was spiritually unready for the next world (which not even Hawles regarded as the main objection) were the Committee such devout Christians that they set store by it ? Equally odd was their remark that 'everyone would revolt from dragging a gibbering maniac to the gallows ', which sounded as if it was meant as an endorsement of one or more of the traditional justifications, but if so could hardly have been more unfortunately phrased.
Why should it be more revolting to hang a 'maniac ' than a woman, a seventeen year old boy or a decrepit old man ? Must the maniac be 'gibbering ' before it becomes revolting ? A more logical justification was sug gested by Lord Hewart, who opposed Lord Darling 's attempt to legislate on the lines recommended by the Atkin Committee (see Chap ter 6).
Lord Hewart suggested that the medi cal inquiry should be concerned only with a single, simple question: 'If this condemned person is now hanged, is there any reason to suppose from the state of his mind that he will not understand why he is being hanged ? ' Although this Suggestion would have appealed to Covarrubias, it had little attraction either for the Home Office or for humanitar ians in general, for it was clearly intended to.
reduce the number of cases in which the inquiry led to a reprieve.
Nevertheless, given certain assumptions about the purpose of the death penalty, it was at least more logical than the traditional justifications which the Atkin Committee had so piously.
repeated.
If, as Covarrubias and Hewart no doubt believed, the primary aim of a penalty was retributive punishment, it could well be argued that the penalty would achieve its aim only if the offender understood why it was being imposed.
This argument is not open, however, to someone who believes that the primary aim of a penalty such as hanging is the protection of society by deterrence or elimination.
The Atkin Committee would have been more realistic if they had contented themselves with the obser vation that for at least four hundred years it had been accepted that common law forbade the execution of a mad man, although the institutional writers ' explanations were obviously speculative and odd: and that since 1884 certifiable insanity had been accepted as the modern equivalent of 'madness '.
Any fur ther attempt to justify the practice would have involved them in one sort of difficulty or another.
as Lord Goddard was to argue to the Gowers Commission".
249 Interesting as the statements on and origins of the Common Law rules on the subject in England, against the execution of an insane person, may be, we, in this country, are gov erned entirely by our statute law on such a matter.
The Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the Common Law of England against the execution of an insane person sen tenced to death or some theological, religious, or moral objection to it.
Our statute law on the subject is based entirely on secular considerations which place the protec tion and welfare of society in the forefront.
What the statute law does not prohibit or enjoin 'cannot be enforced, by means of a writ of Mandamus under Article 226 of the Constitution, so as to set at naught a duly passed sentence of a Court of justice.
The question whether, on that facts and circumstances of a particular ease, a convict, alleged to have became insane, appears to be so dangerous that he ,must not be let loose upon society, lest he commits similar crimes against other innocent persons when released, or, because of his anteced ents and character, or, for some other reason, he deserves a different treatment, are matters for other authorities to ,consider after a Court has duly passed its sentence.
As we have already indicated, even the circumstances in which the appellant committed the murders of which he was convicted are not before us.
As the High Court rightly observed, the authorities concerned are expected to look into matters which lie within their powers.
And, as the President of India has already rejected the appellant 's mercy petitions, we presume that all relevant facts have received due consid eration in appropriate quarters.
We think that the application to the High Court and the special leave petition to this.
Court, in the circumstances mentioned above, were misconceived.
Accordingly, we dismiss this appeal.
We also dismiss Criminal Miscellaneous Petition No. 62 of 1976, an application for summoning of the original re cord, as it could be of no use, but we allow Criminal Mis cellaneous Petition No. 380 of 1976, the application for intervention, whose contents we have quoted above.
Stay of execution order is vacated.
P.B.R. Appeal dis missed.

summary:
A petition under article 226 of the Constitution was filed in the High Court on behalf of the.
appellant, who was sen tenced to death, praying that, since the appellant was insane the State should be restrained from carrying out the sentence.
The High Court dismissed the petition holding that if the appellant were really insane, the appropriate authorities would take necessary action.
In appeal to this Court, it was contended that convicted person who became insane after conviction and sentence could not be executed until he regained sanity.
Dismissing the appeal, HELD: (1) (a) Courts have no power to prohibit the carrying out of a sentence of death legally passed upon an accused person on the ground either that there is some rule in the common law of England against the execution of an insane person sentenced to death or for some theological religions or moral objection to it.
Our statute law on the subject is based entirely on secular considerations which place the protection and welfare of society in the fore front.
[249 B] (b) What the statute law does not prohibit or enjoin cannot be enforced, by means of a writ of mandamus under article 226 of the Constitution, so as to set at naught a duly passed sentence of a court of justice.
[249 C] (2) (a) Section 30 of the Prisoners Act, 1900 has nothing to do with the powers of courts.
It only regulates the place and manner of confinement of a person, who appears to be a lunatic, when his detention or imprisonment is either during the trial or during the period when, after the sentence, he is undergoing imprisonment.
In the case of a person condemned to death, no question of keeping him in prison would arise except for the period elapsing between the passing of the sentence of death and its execution.
[243 F] (b) Insanity, to be recognised as an exception to crimi nal liability must be such as to disable an accused person from knowing the character of the act he was committing when he commits a criminal act.
If, at the time of the commis sion of the offence, the appellant knew the nature of the act he was committing, he could not be absolved of responsi bility for the grave offence of murder.
[245 B D] Jagmohan Singh vs The State of U.P. ; referred to.
In the instant case, the whole object.
of the proceed ings in the High Court and before this Court seems to be to delay execution of the sentence.
In view of the number of times the appellant had unsuccessfully applied the powers of the High Court and of this Court ought not to have been invoked again.
[244 A]