judgement:
A. No. 190 and 191 of 1969, and 63 and 64 of 1972.
Appeals by certificate/special leave from the Judgment and Order dated September 9, 1968 of the Gujarat High Court in Criminal Appeals Nos. 486 and 555 of 1966.
Urmila Kapoor, B. D. Sharma for section P. Nayar and Kamlesh Bansal, for the appellant (In all the appeals).
M.V. Goswami, for the respondent (In Cr.
Nos. 190 of 1969 and 63 of 1972).
H.K. Thakur and section K. Dholakia, for the respondent (In Cr.
191 of 1969 and 64 of 1972).
The Judgment of the Court was delivered by Grover, J.
This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court.
Two appeals, i.e. Cr.
No. 190 & 191 of 1969 had been brought by certificate.
The certificates being defective for want of reasons they could not be entertained on that short ground.
However, two petitions for special leave were filed and the same were granted.
Those appeals (Cr.
63 & 64 of 1972) will be dealt with in this judgment.
The facts may be stated.
Manshankar Prabhasbankar Dwivedi was at the material time a Senior Lecturer at the D.K.V. 315 Arts & Science College, Jamnagar which is a Government college.
Vallabhdas Gordhandas Thakkar was a legal practitioner conducting cases before the Income tax and Sales tax Departments.
He was also a resident of Jamnagar.
It was alleged that in April 1964 the Physics practical examination for the first year B.Sc.
was to be held by the Gujarat University.
One of the centres was Surendranagar.
Dwivedi had been appointed as an Examiner for Physics practical.
He, is alleged to have accepted gratification of Rs. 500/ other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination.
It is stated that he had obtained that amount through Thakkar.
Dwivedi was charged with commission of offences under section 161, Indian Penal Code and section 5 (2) read with section 5 (1 ) (d) of the Prevention of Corruption Act, 1947, hereinafter called the 'Act.
Thakkar was charged under section 165 A, Indian Penal Code, and section 5(2) of the Act read with section 114 of the Indian Penal Code.
The Special Judge who, tried both these persons found them guilty of the offence with which they were charged.
He imposed a sentence of 2 years ' rigorous imprisonment and a fine of Rs. 1,000/ , (in default further rigorous imprisonment for six months) Oil each of these persons.
Both the convicted persons filed appeals to the High Court '.
The High Court found that the prosecution case had been proved against both Dwivedi and Thakkar on the merits but on the view which the High Court expressed about the ambit and scope of the sections under which the charges were laid they were acquitted, The present appeals have been filed by the State against both these persons who are respondents before us.
It is unnecessary to give the entire prosecution story.
We may only refer to what is the last and final stage of that story.
According, to the prearranged plan it was alleged that Pranlal Mohanlal who was the complainant and who was the brother in law of the student, Jayendra, went to the college, where the examination was to take place, along with a panch witness Shivaji.
Thakkar was in the porch of the college and he demanded the money for being given to Dwivedi Pranlal, however, insisted that the money would be paid after he had talked the matter over with Dwivedi,and the work was done.
Thakkar replied that Dwivedi was busy and would be available after some time.
So they all left.
Thakkar, followed them.
When Pranlal and Shivlal reached the Trolly Station Thakkar came there and asked them to go with him to a place called 'Vikram Lodge ' which they did.
There Thakkar again demanded money but Pranlal gave the same reply which he had given before.
At about 11 A.M. these three persons came back to the college and Went to the first floor where 3 L128SupCI/72 316 the examination hall was situate and stood outside the hall.
There Thakkar brought Dwivedi and Dwivedi said "why are, you delaying.
You are a fool you will spoil the life of the student.
Pay the amount to Thakkar".
Then Pranlal paid Rs. 500/ lo Thakkar in the presence of Dwivedi.
Thakkar counted the money and put it in his pocket.
Dwivedi went back to his room.
Thereafter the signal was given and the raiding party arrived and made the recoveries.
Necessary panchnamas were prepared.
The High Court agreed with the Special Judge that the prosecution case against the present respondents in respect of the demand and acceptance of bribe of Rs. 500/ for the purpose of giving more marks to Jayendra had been proved.
It was, however, argued before the High Court that as regards section 161, Indian Penal Code,, it was necessary that the person committing that offence must be a public servant.
Although Dwivedi was a Senior Lecturer in a Government College the bribe was sought 'to be obtained not in connection with any official act or in connection with the exercise of his official functions as a public servant but in connection with his work as an Examiner of the Gujarat University.
An Examiner of the University did not fall within the definition of a "public servant" as given in section 21 of the Indian Penal Code.
It was maintained on behalf of Dwivedi that although he had abused his position as an Examiner but he had not done so as a government servant in which capacity alone he could be a public servant.
The Special Judge had, however taken the view that even an Examiner was a public servant.
As regards the offence under the Act the Special Judge had held that it was not necessary that the misconduct should be committed in the discharge of the public servant 's duties.
Once it was proved that the payment had been obtained by corrupt or illegal means it was not necessary that the accused should abuse his position as a public servant or that he should have obtained the money while acting as a public servant.
The High Court did not accept the reasoning or the conclusion of the Special Judge on these points.
Section 21 of the Indian Penal Code as it stood at the mate rial time and before the amendments which were made later contained several clauses.
The ninth clause was in the following terms: "Ninth.
Every officer whose duty it is, as such officer to take, receive,, keep or expend any property on behalf of the, Government or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process or to investigate, or to re port on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any 317 document relating to the pecuniary interests of the Government or to prevent the, infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty".
The first question which has to be resolved is whether respondent Dwivedi was a public servant within the meaning of the Ninth clause of section 21, Indian Penal Code, keeping in view the capacity in which and the nature of the duties which he was Performing as an Examiner of University which, it has been found, had no connection with his being a Government servant.
It is well known that Universities appoint Examiners having the requisite academic qualifications who may or may not be government servants.
, For instance, a person having the requisite academic qualifications who is working in a private institution can and usually is appointed an Examiner by the University.
The question that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the meaning of ninth clause of section 21, Indian Penal Code.
It will be useful to look at the scheme of section 21.
There could be no difficulty about the second, third and 4th clauses which deal with the commissioned offers in the Armed Forces, judges and officers of the Courts of Justice whose duties are as such officers to do various matters mentioned in those clauses.
The Fifth clause brings within the definition every juryman, assessor or member of,;: a panchayat assisting a Court of Justice or public servant.
Under the sixth clause every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority would also fall within the words "public servant".
Seventh and eighth clauses deal with persons who perform mainly policing duties.
The tenth clause covers officers whose duty it is to take receive, keep or expend any property to make any survey or assessment or to levy any rate, or tax etc.
The eleventh clause relates to persons who hold any office by virtue of which they are empowered to prepare, publish etc.
an electoral roll or to conduct an election.
The twelfth clause covers every officer in the service or pay of local authority or corporation engaged in any trade or industry established by the Central, Provincial or State Government or a Government company.
In the illustration given it is stated that a Municipal Commissioner is a public servant.
According to Explanation persons falling, under any.
of the description given in the twelfth clause are public servants whether appointed by the Government or not.
Section 21.
was amended.in 1964.
The ninth clause was retained substantially ,:is it existed previously except that the following words were 318 dropped "and every officer in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty".
The twelfth clause was recast and the new provision was in these terms : "Twelfth.
Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 601 of the ." Thus sub clause, (a) of the 12th clause, after the amendment corresponds substantially to the last part of the old ninth clause with this change that the expression "every officer" has now been substituted by the words "every person" and after the words "performance of any public duty" it has been added "by the Government.
" The argument which has been addressed mainly on behalf (if the State and which Was pressed before the High Court is that the ninth clause, as it stood, when the offences are alleged to have been committed would cover the case of Dwivedi as he, was an officer in the service or pay of the Government or was remunerated by fee or commission for the performance of a public duty.
Acting as an Examiner, it has been suggested, is the performance of a public duty.
If Dwivedi was remunerated by fee or commission by the University for the performance of that public duty he would be covered by the last part of the ninth clause as it stood at the relevant time.
It is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is only a person in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty by the Government who would fall within the definition of "public servant" within sub clause (a) of the, Twelfth clause.
But it is argued that the position was different under the ' Ninth clause as the words "fly the Government" did not follow the words "performance of any public duty" although at every other appropriate Place the word "Government" was to be found in the Ninth clause.
The omission of these words show that the clause was wider when it came to the case of an officer who was remunerated by fee or commission for the performance of any public duty and it was not necessary that the remuneration by any of fee or commission should be paid by the Government as is now necessary under subclause (a) of the ' Twelfth clause after the amendment.
319 The High Court gave the, following reasons for holding that tile last part of the Ninth clause, as it stood before the amendment, would not cover the case of Dwivedi: (i) The context of the whole of the Ninth clause indicated that the connection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of public duty.
(ii)The person to be an officer must hold some office.
The holding of office implied charge of a duty attached to that office.
The person who was remunerated by fee or commission must be an officer.
Therefore the use of the word "officer" read in the, context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by the Government.
(iii)The amendment made in 1964 and in particular the addition of the words "by the Government" in subclause (a) of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration.
(iv)It is well settled that in a statutory provision imposing criminal liability if there is any doubt as to the meaning of a certain expression or words its benefit should be given to the subject.
It has not been shown to us by the learned counsel for the appellant that the reasoning of the High Court on the above point suffers from any infirmity.
Apart from the other reasons given by the High Court reason No. (ii) seems to have a lot of force.
It is supported by the decision in Ram Krishna Dalmia vs Delhi Administration(1).
There, a Chartered Accountant had been appointed as an Investigator by the Central Government under the to investigate into certain matters and he was to get remuneration for the work entrusted to him.
It was held that he did not become an officer as he did not hold any office.
The could not, therefore, become a public servant within the latter part of Ninth Clause of section 21 of the Indian Penal Code.
It is noteworthy that the work of an Investigator was of a nature which could well be regarded as public duty and the remuneration which was to be paid to him was by the Government.
Yet it was hold that he could not be regarded as holding an office.
On that view it is not possible to put the case of a University Examiner in (1) ; 320 a different category.
A University Examiner cannot be consi dered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause.
It is clear from the provisions of the Gujarat University Act 1949 that there is no such condition that only that person can be appointed as Examiner who is the holder of an office.
Section 20(xxii) provides for appointment of Examiners by the Syndicate.
Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters (iii)"conditions governing the appointment and duties of examiners.
" No such Ordinance has been brought to our notice which restricts the appointment of the examiners to persons in the service of the Government or holders of any particular office.
Suppose for instance there is a private individual who is not in the regular employment or service of either the Government or any public body or authority.
He has the requisite academic qualifications and he is appointed an examiner in a particular subject in which he has attained high academic distinction.
He cannot be said to be holding any office when he is appointed for the purpose of examining certain answer books even though that may fall within the performance of a public duty.
There is another difficulty in regarding an examiner as a holder of an office.
Before the amendment made, in section 21 by Act 40 of 1964 a person who is appointed an examiner and who receives remuneration by fee would fall within the term "public servant" if he is holder of an office.
But persons in the regular service of the University would not be covered by the Ninth Clause.
If at all, it would be the Twelfth Clause which would be relevant in their case.
It is, however, a moot point whether the University is a local authority within the meaning of the first part of the Twelfth Clause before the amendment of section 21.
The expression "local authority" has a definite meaning.
It has always been used in a statute with reference to such bodies as are connected with local self Government e.g., Municipalities, Municipal Corporations, Zila Parishads etc.
As a matter of fact s.3 (31 ) of the defines "local authority" to mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.
It could never be intended that only such officers of the University should be public servants who are remunerated by fee or commission and not those who are in the regular service of the University.
We concur with the High Court that a University Examiner cannot be held to he an officer.
Once that conclusion is reached, he cannot be covered by the Ninth Clause of section 21 of the Penal Code.
321 The next point which calls for decision is whether appellant Dwivedi was guilty of an offence under s.5 (1) (d) of the, Corruption Act.
That provision, as it stood at the material time, was as follows : "section 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (d)if he, by corrupt or illegal means or by otherwise, abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
" By the Central Act 40 of 1964 the words "in the discharge of hi,, duty" were omitted.
This Court has, however, taken the view in Dhaneshwar Narain Saxena vs Delhi Administration(1), overruling an earlier decision that in order to constitute an offence under clause (d) of s.5(1) of the Corruption Act it is not necessary that the public servant while misconducting himself should have done so in the discharge of his duty.
Section 2 of this Act provides that for its purposes "public servant" means a public servant as defined in s.21 of the Indian Penal Code.
Dwivedi while.
committing the offence under section 5 (1) (d) had two positions .
(1) he was a lecturer in a Government College and (2) he was ' an examiner appointed by the Gujarat University for doing examination work on remuneration paid by the University.
As a lecturer in Government College he certainly fell within the definition of "Public servant" but the act of corruption attributed to him was in his capacity as, an examiner.
A question at once.
arises is whether s.5(1)(d) will apply to case of a Government servant who commits an act punishable under the said provision even though when the act is committed by him he is holding a different position which is not that of a Government servant and in which capacity alone he could fall within the definition of a "public servant.
" The High Court proceeded on the basis that for the purpose of the opening, Part of s.5 (1 ) of the Corruption Act Dwivedi must be held to be a public servant.
It was held that his case did not fall within the clause (d) as he, did not abuse his Position as a public servant although the means employed, were corrupt and illegal.
The argument on behalf of the State is that even if Dwivedi was not punishable under s.161 of the Indian Penal Code with reference to the work in respect of which he accepted an illegal certification he would nevertheless be liable under s.5(1)(d) of the Corruption Act because the liability of a public servant has been made absolute and it is wholly immaterial in what capacity he has committed the offence under sub clause (d) of s.5(1) of the (1) ; 322 Corruption Act.
He need not have obtained for himself any valuable thing, or pecuniary advantage, as a public servant.
Once he is a Government servant and thus falls within the definition of a public servant and if he uses corrupt or illegal means for obtaining a valuable thing, or pecuniary advantage he commits an offence as contemplated by s.5(1)(d).
It need not further be proved that he abused his position as a public servant.
We may refer to the previous decisions of this, Court relating to the interpretation of s.5(1)(d) of the Corruption Act.
In Dhaneshwar Narain Saxena vs Delhi Administration(1) Saxena, who was an Upper Division Clerk, was approached by one Ram Narain, a fireman serving in the Delhi Fire Brigade, for assistance in obtaining a license for a double barreled shot gun which was, in fact obtained.
Saxena was paid certain amount and promise was made to pay him more.
Ram Narain had made a false declaration with regard to his salary in the application for the license.
His allegation was that he had done so on the advice of Saxena.
As Ram Narain 's license had been cancelled it was alleged thathe again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license.
Ultimately a trap was laid and Saxena was caught while the money was being handed over to him.
The main argument in this case centered on the question whether Saxena had committed any misconduct in the discharge of his duty.
Overruling the earlier decision of this Court in the State of Ajmer vs Shivji Lal(2) it was held that it was not necessary to constitute the offence under clause (d) of section 5 (1) that the public servant must do some thing in connection with his own duty and there by obtain any valuable thing or pecuniary advantage.
It observed that "it was equally wrong to say that if a public servant were to take money from a third person by corrupt or illegal means or otherwise abusing his official Position in order to corrupt some other public servant without there being any question of his misconducting, himself in the discharge of his own duty he has not committed an offence under section 5 (1) (d).
It is also erroneous to hold that the essence of an offence under section 5 (2 ) read with section 5 (1) (d) is that the public servant should do some thing in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage." No such question was argued or decided in that case whether for the commission of an offence under section 5 (1 ) (d) abuse of position as a public servant was of the essence or the essential ingredient of the offence.
It is noteworthy that the High Court had, on.
the evidence produced by the prosecution, come to the conclusion that Saxena taking advantage of his own position as an employee in the Chief Commissioner 's Office and Ram Narain 's ignorance and anxiety to get the license, had induced him to part with the money on (1) ; (2) [1959] Suppl.
2 S.C.R. 739.
323 the promise that he would get the license restored.
It appears, therefore, that it was in that background that the decision of this Court was given.
The case of M. Narayanan Nambiar vs State of Kerala() was clearly one in which there had been abuse by a Government servant of his.
position as a public servant.
The court referred to the preamble which indicates that the Corruption Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption by public servants.
The addition of the word "corruption" showed that the legislation was intended to combat other evils in addition to bribery.
The argument on behalf of the accused in that case proceeded on the basis that clause (d) would take in only the case of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner prescribed (herein and did not cover the case of wrongful loss caused to the government by abuse of his power.
While analysing s.5 (1) (d) it was said "Let us look at the clause "by otherwise abusing the position of a public servant", for the argument mainly turns upon the said clause.
The phraseology is very comprehensive.
It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position.
The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
"Abuse" means misuse i.e. using his position for something for which it is not intended.
That abuse may be by corrupt or illegal means or otherwise than those means.
The word "otherwise" has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal" and "otherwise" mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause.
So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part." The court entertained no doubt that every benefit obtained by the public servant for himself or for any other person by abusing his position as a public servant fell within the mischief of the said clause.
Although in the above decision the question whether the words "abusing his position as a public servant" qualify the word "Otherwise" or also the words "corrupt or illegal means" in section 5 (1) (d) (1) [1963] Suppl.
2 S.C.R. 724.
324 was not discussed directly, the observations made seem to indicate that the word "Otherwise" refers to means other than corrupt or illegal by which a public servant may abuse his position.
There are two ways of looking at the clause on is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he will be guilty of the offence.
The other way of reading this clause is by confining the words "by otherwise" to the means employed.
Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act.
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word " otherwise".
The analysis of clause (d) made in Narayanan Nambiar 's(1) case by Sabha Rao J. (as he then was) seems to lend support to the view, taken by the High Court that the abuse of position as a public servant is essential.
The reasoning of the High Court proceeds on these lines.
The second part of cl.
(d) relating to the obtaining of the valuable thing etc.
relates to the object of the public servant, namely, the obtaining of a bribe.
The first part concerns the manner of achieving that object.
"The manner is the use of means and use of position.
As to the use of means the clause expressly mentions corrupt or illegal but the legislature does not want to limit itself to these means only and so goes on to use the word "otherwise.
" If the meaning to be given to the word "otherwise" is, as earlier stated, the words "by corrupt or illegal means" or "by otherwise" form a single clause and do not form two clauses.
If that is so the abuse of position as a public servant that is referred to is the abuse by corrupt or illegal means or by otherwise.
" The High Court also relied on the analysis of section 5 (1) (d) contained in Ram Krishna & Another v The State of Delhi (2) , where it was pointed out that the offence created thereby is of four kinds.
Bribery as defined in s.161 of the Indian Penal Code, if it is habitual, falls within clause (a).
Bribery of the kind specified in section 1 65, if it is habitual, is comprised in clause (b) Clause (c) contemplates criminal breach of trust by a public servant.
For that section 405 of the Indian Penal Code has to be looked at.
An argument was advanced in that case that clause (d) seems to create an independent offence distinct from simple bribery.
This is what the court observed: "In one sense, this is no doubt true but it does not follow that there is no overlapping of offences.
We have primarily to look at the language employed and give effect to it.
One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage .
(1) [1963] Supp, 2 S.C.R. 724.
(2) ; 325 The word "obtains" on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receivers One may accept money, that if offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, lie obtains a pecuniary advantage by abusing his position as a public servant." Thus in clauses (a), (b) and (c) the abuse of position as a public servant is clearly implied.
Clause (e) also carries the same implication.
It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section.
According to the, High Court such a construction would also keep, the offence within the limitation and the object of the Act.
The abuse of the position would be the necessary ingredient of the offence; the abuse being either by corrupt or illegal means or by other means of the nature mentioned in Narayanan Nambiar 's(1) case.
Counsel for the State has.
not been able to satisfy us that the various reasons given by the High Court as also the observations made in the previous judgments of this Court are not sufficient to sustain the construction or interpretation of section 5 (1) (d) which commended itself to the High Court.
As Dwivedi was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant.
It was never the case of the prosecution that he had been guilty of any abuse of his position as a lecturer of the Government College.
If Dwivedi was not guilty, Thakkar could not be held to be guilty of the offences with which he was charged.
We would accordingly uphold the decision of the High Court and dismiss both the appeals.
G.C. Appeals dismissed.

summary:
D, a Lecturer in a Government College, was appointed as examiner of a physics practical examination held by the Gujarat University.
He allegedly took Rs. 500 from a candidate at the examination for showing him favour .
He was charged with offences under section 161 Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act 1947.
The Sessions Judge held him to be a 'public servant ' within the meaning of cl. 9 of section 21 as it stood before its amendment by Act 40 of 1964, and held him guilty under section 161 of the I.P.C. He was also held guilty under the 1947 Act.
In, appeal the High Court held (1) that in is capacity as examiner of Gujarat University lie was not a public servant and therefore not guilty under, section 161 I.P.C.; (ii) that though a public servant in his capacity as lecturer in a Government College he had not abused his position as such public servant and ' therefore was not guilty under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The State appealed to this Court.
HELD : (i) As rightly held by the High Court a public servant within the meaning of cl. 9 of section 21 as it stood at the relevant time must be an officer of the Government and the fee or commission must be payable by the Government.
A University Examiner cannot be considered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause even though examining answer books may fall within the performance of a public duty.
A private individual who has no employment may be appointed an examiner because of his high academic qualifications.
He cannot be said to be holding any office.
An examiner who is in the regular service of a University also cannot be said to be a public servant since a University is not a local authority within the meaning of clause 12(b).
Since the appellant was not a public servant under section 21 I.P.C. he was rightly acquitted of the offence under section 161 I.P.C. [319 F 320 H] Ram Krishna Dalmia vs Delhi Administration, [1963] 1 S.C.R. 253, applied.
(ii)It was never the case of the prosecution that D had been guilty of any abuse of his position as a lecturer of the Government College.
As he was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant.
He was therefore rightly acquitted by the High Court of the offence, under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act 1947.
[325 E] 314 There are two ways of looking at clause 5(1)(d).
One is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he is guilty of the offence.
The other way of reading this clause is by confining the words "by otherwise" to the means employed.
Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act.
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word "otherwise".
The analysis of clause (d) made in Narayanan Nambiar 's case seems to lend support to the view taken by the High Court that the abuse of position as a public servant is essential.
[324 A D] In clauses (a), (b) and (c) of section 5(1) the abuse of position as a public servant is clearly implied.
Clause (e) also carries the same implication.
It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section.
[325 C] M.Narayanan Nambiar vs State of Nerala, [1963] Suppl.
2 S.C.R. 724 and Rain Krishna & Another vs The State of Delhi, ; , applied.
Dhaneshwar Narain Sexana vs Delhi Administration,[1962] 3 S.C.R. 259, distinguished.
State of Ajmer vs Shivji Lal, [1959] Suppl.
S.C.R. 739, referred to.


judgement:
ppeals from" judgments and decrees of the High Court of Judicature at Calcutta dated 25th August, 1943, in First Appeals Nos. 20 and 173 of 1939 which arose out of a decision of the President of the Calcutta Improvement Tribunal in Case No. 95 of 1935.
Civil Appeals Nos. 95 and 96 of 1949.
Panchanan Ghose (Upendra Chandra Mullick, with him) for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96.
S.P. Sinha (Nagendra Nath Bose, with him) for respond ents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96.
S.N. Mukherjee, for respondent No. 4 in Civil Appeal No. 95.
March 14.
The judgment of the Court was delivered by FAZL ALl J.
These appeals are directed against the judgment and decree of the High Court of Judicature at Fort William in West Bengal, confirming a decision of the Presi dent of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 and 141, Cotton Street.
In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject matter of the land acquisition proceedings.
These premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hoogly.
Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his 334 predeceased wives, these being Jiban Kumari and Amrit Ku mari, and a mistress named Kissen Dasi.
On the 23rd August, 1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street.
Muni Bibi and Jiban Kumari also became the she baits of the Thakur or deity with power to appoint their successors.
On the 20th January, 1848, Muni Bibi by an arpannama dedicated 140, Cotton Street, to the Thakur.
It is recited in this deed, among other things, that on account of annual droughts and inundation and consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that "Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob etc.
, of the deity, when the amount fell short, this being against the provisions laid down by her late husband", that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p.m., that after deducting the necessary expenses the surplus income left was Rs. 20 p.m., and that "if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force.
" After reciting these facts, it is stated that the rental of the house "shall be permanently and perpetually included in the expenses of the sheba.
" About 20 years later, on the 30th September, 1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p.m. (See exhibit L a kabuliyat executed by Nehal Chand in favour of Muni Bibi).
In the same year, on the 8th 335 December, Jiban Kumari granted a permanent lease to Bhairo das Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p.m. (See exhibit K a kabuliy at executed by Johurry in favour of Jiban Kumari).
The main question which has been raised in this case is whether the two ladies were competent to give debutter properties by way of permanent lease to another person.
In 1870, Muni Bibi died, and, on the 15th January, 1872, Jiban Kumari ap pointed Gourimoni Devi a shebait by a registered deed and dedicated the premises known as 141, Cotton Street, to the deity.
Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of Gourimoni, became the shebait of the idol.
During his minority, his father, Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed a usufructuary mortgage deed in respect of the Cotton Street properties to one Lal Behari Dutt, on the 31 August, 1878.
After the death of Raghubar Dayal one Ajodhya Debi and after her one Kalicharan Dutta became the certificated guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for a sum of Rs. 2,230.
On attaining majority, Gopaldas executed on the 17th January, 1896, a usufructuary mortgage deed in respect of all debutter properties includ ing the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mortgage dues which amounted on that date to Rs. 4,955 and odd.
This deed provided among ' other things that the mortgagee was to collect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mortgage dues.
Gopaldas died in 1900, leaving behind him surviving his widow, Annapuma, who also died in 1905.
By 1918, Lal Behari Dutt also was dead, and his interest in the mortgaged properties, to which reference has been made, was sold to one Naba Kishor Dutt on the 12th December, 1918.
On the 17th November, 1933, Naba Kishor assigned the mortgagee 's 336 interest in the mortgaged properties to two of the Bagarias, respondents 1 and 2 in appeal No. 95, and m the same year the three respondents (1 to 3) also acquired the lessee 's interest in the Cotton Street houses.
The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos. 140 and 141, Cotton Street, as well as two adjoining premises with which we are not concerned in this case.
In these proceedings, the following claims were put forward by three sets of persons: 1.
The Bagarias (respondents 1 to 3 in appeal No. 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the prem ises in question, but later on they claimed only as mortga gees and permanent lessees of those premises.
On behalf of the deity, the entire amount of compen sation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, and the Bagarias had acquired no interest therein either by the assignment of the usufructuary mortgage or the alleged purchase of the tenant 's rights in the properties.
Respondent No. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords.
In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the courts below.
On the 22nd May, 1935, the Collector awarded Rs. 31,740 as compen sation for landlord 's interests, to be shared by the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal No. 95 in their capacity of usufructuary mortga gee, and awarded a sum of Rs. 1,58,000 to the respondents Nos. 1, 2 and a as compensation for their rights as perma nent tenants of the premises in question.
Subsequently, 3 separate petitions of reference were filed 337 by the a claimants against the Collector 's award and the reference made by the Collector in pursuance thereof was registered as apportionment case No. 95 of 1935 in the Court of the Calcutta Improvement Tribunal.
Meanwhile, Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests.
On the 31st August, 1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only.
He held that the usufructuary mortgage, on the basis of which re spondents 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity.
Respondents 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity, He also held that the deity was not entitled to question the leases by virtue of article 134 (a) of the Limitation Act.
Regarding costs, he directed that all costs incurred on behalf of the deity should be paid out of the compensation money lying in deposit in court.
Two appeals were thereafter preferred to the High Court by the two main contesting parties and ultimately both these ap peals were dismissed, and the High Court upheld the decision of the Tribunal.
Subsequently, the present appeals were preferred to this Court, the deity having obtained a certif icate granting leave to appeal from the High Court, and the Bagaria respondents having obtained special leave from the Privy Council to prefer a cross appeal.
The main questions which arise in these appeals are : (1) whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity; and 44 338 (2) whether the mortgages on the basis of which the Bagarias had laid their claim to compensation had been satisfied.
The first question arises in Appeal No. 05, and the second question arises in Appeal No. 96.
So far as the question of legal necessity is concerned, there are concurrent findings of the Tribunal and the High Court against the appellant in appeal No. 95, but we allowed his counsel to argue the question at some length, because it was urged before us that on the facts of the case the point in issue was not a question of fact but one of mixed fact and law, especially as the decision of the High Court turned upon the construction of the leases and the inference drawn from the fact that the permanent nature of the tenancy had remained unquestioned for a very long period.
The tenancy in question came into existence as long ago as 1869, and it is not surprising that no direct evidence bearing on the issue of legal necessity is available now.
We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, exhibits L and K, were executed, because it is well settled that if all the original parties to the trans action and those who could have given evidence on the rele vant points have passed away, a recital consisting of the principal circumstances of the case assumes greater impor tance and cannot be lightly set aside.
[See Banga Chandra Dhar Biswas vs Jagat Kisore Chowdhuri(1) 1 It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity and with regard to whom it was not suggested that they expected to derive any personal advantage from the transactions in question.
It seems to us most unlikely that they would be parties to any untrue recitals merely to support the trans action.
It may be recalled here that in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari (1) 43 I.A. 249.
339 had been supplementing the income of the residue from her own properties for meeting the expenses of performing cer tain essential services to the deity, such as jatra, mahot sob, etc.
We also find from the arpannama that the value of the property which is the subject matter of the mokrari kabuliyat dated the 30th September, 1869 (exhibit L) was Rs. 2,000 in 1848, that it was not in the khas possession of Muni Bibi but had been let out to a tenant and that its net income was Rs. 20 p.m.
At the time when the arpannama was executed, Muni Bibi clearly thought that the sum of _Rs. 20 p.m., if included in the expenses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help.
From the recitals in exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition and had collapsed in the rains of 1270 B.S. (1868 A.D.), and Muni Bibi was unable to bear the expenses of constructing a new building at the place.
The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses of the deity, which should not in any case be less than the income which the property had theretofore yielded.
She decided to choose what must have appeared to her to be the better and more prudent course, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were sold to the lessee, and also secured a regular monthly income of Rs. 25.
There can be no doubt that the transaction was in the best inter ests of the deity and clearly beneficial to it.
A reference to the arpannama shows that the house was in the possession of a, tenant even in 1848, and from the recitals in the document it is clear that what Muni Bibi contemplated was that the house should continue to remain in the possession of a tenant, and the rent of the house should be used for the sheba of the deity.
At that time, she did not contemplate any other mode of using the property she was going to dedicate.
We do not know who was the tenant of the 340 house in 1848 and what were the commitments of Muni Bibi at that time, but, even apart from these facts, it is difficult to believe that a devout person like her, who was not only a shebait but also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the worship of the deity, should have entered into the transac tion in question unless she considered it absolutely neces sary to do so.
The contention put forward before us is that it has not been shown that there was no other course open to Muni Bibi than to.
grant a permanent lease in respect of the property, but it is manifest that at this distance of time no evidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the course she did.
It is now well settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertainfully what the circumstances were in which it was made, the court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor.
[See Bava Magniram Sitgram vs Kasturbhai Manibhai(1)].
In the present case, the circumstances which can be gathered from the recitals together with the fact that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the conclusion that the grant was made for legal necessity and is binding on the deity.
On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi and the commencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it.
On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on the 18th October, 1873 (exhibit Y), and in a mortgage deed executed by Raghubar Dayal, the guardian of Gopaldas, on the 31st August, 1878.
The properties in question were subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these persons nor (1) 41 I. A. 54.
341 the mortgagees ever came forward to question the permanent nature of the tenancy.
The counsel for the appellant relied upon exhibit VI, which is a copy of the judgment of the High Court in a suit instituted by Nabakishore Dutt in 1995 against the Adminis trator General of Bengal for the rent of the house in ques tion.
It appears from this judgment that the tenancy was admitted by the defendant and it was also admitted by him that rent was due, but he claimed that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent.
The learned Judge, who dealt with the case, however, thought that the point raised by the defendant did not strictly speaking arise in a suit for rent, which according to him could not be converted into a suit for declaration of title, and on that basis, he passed a decree in favour of the plaintiff.
The judgment does not say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had re mained unquestioned for nearly half a century.
The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt.
As has been already stated, a mourasi mokrari tenancy was created by Jiban Kumari on the 8th December, 1869, as is evidenced by exhibit K.
This document recites among other things that the house which was the subject of the lease, "stands in need of repairs and for want of such repairs there is chance of some portion thereof breaking down during the year.
" It also recites that whatever income was derived till then from that house was derived by letting it out on rent and that the mourasi tenancy was being created for the purpose of repair ing the house and keeping it in existence.
At the end of the document, it is stated that "the shebait shall keep the kabuliyat and patta in force and shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity.
" It is 342 noteworthy that the actual dedication of this property took place on the 15th January, 1872, more than 2 years after the kabuliyat.
On that date, a registered deed of gift was executed by Jiban Kumari in favour of Srimathi Gourimoni Debi and it was recited therein that the income of the house was being dedicated by the former to the sheba of the deity.
There was also a further clause in that deed to the follow ing effect : "In accordance with the terms of the solenama the ex penses of the Iswar seba shall be met from the income of those properties which have been dedicated for the perform ance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the Brahman priest (now) employed and to be employed hereafter shall get (their) salaries, from the income of the said property." On reading this document along with the solenama and the mok rari lease granted by Jiban Kumari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, and that she had dedicated this income for specific purposes with the object of making up the deficit in the income received from other debutter properties.
If it is held that Jiban Kumari was an absolute owner of the property at the time the moura si mokrari lease was granted and afterwards she dedicated only the income of the property then the permanent lease cannot be assailed.
If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house and it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime.
Such a question however does not need an elaborate answer, because the same considerations which apply to 140, Cotton Street.
will 343 apply to this house, and the presumption as to necessity which is raised by the long lapse of time, would arise here also.
This presumption is considerably strengthened here as well as in the case of the lease granted by Muni Bibi, by the fact that the grantor of the lease was so devoted to the object of the endowment that it does not seem likely that she would have granted a permanent lease unless she was impelled to do so by absolute necessity.
It seems to us therefore that the view taken by the High Court is substan tially correct and the respondents Nos. 1 and 2 are entitled to compensation as permanent lessees.
In this view, Appeal No. 95 must fail, and it is dismissed.
As to Appeal No. 96, it has been concurrently found by the President of the Tribunal and the High Court that the appellants have failed to prove by proper evidence that there is any money still due to them on the usufructuary mortgage executed by Gopaldas in 1886.
In arriving at this finding, they have dealt with every possible argument that could be urged and was urged on behalf of the appellants to show that the mortgage had not been satisfied.
This court has repeatedly held that it will not generally interfere with concurrent findings on a pure question of fact, and nothing has been shown on behalf of the appellants to induce us to depart from this rule.
In the result Appeal No. 96 also is dismissed.
Having regard to the circumstances of the case, we shall make no order as to costs in either of these appeals.
Appeals dismissed.
Agent for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96: Sukumar Ghose.
Agent for respondents Nos.
1 to 3 in Civil Appeal No. 95 and appellants Nos.
1 to 3 in Civil Appeal No. 96:S. C. Banerjee.
Agent for respondent No. 4 in Civil Appeal No. 95: P.K. Chatterjee.

dataset_name: IN-Abs

summary:
Where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside.
Banga Chandra Dhar Biswas vs Jagat Kishore Chowdhuri (43 I.A. 249) referred to.
Where the validity of a permanent lease granted by a shebait has remained unquestioned for a very long time since the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life time of the grantor.
333 Bawa Magniram Sitaram vs Kasturbhai Manibhai (49 I.A. 54) referred to.


judgement:
Appeals Nos. 97 and 98 of 1952.
Appeals under Articles 132(1) and 133(1)(c) of the Constitution of India from the Judgment and Decree dated the 13th October 1950 of the High Court of Judicature at Patna in Miscellaneous Judicial Cases Nos. 140 and 107 of 1950.
M. C. Setalvad, Attorney General for India (G. N. Joshi, Lal Narain Sinha and P. G. Gokhale with him), for the appellant in C.A. Nos. 97 and 98 of 1952.
B. Sen and I. N. Shroff, for the respondents Nos.
I to 4. 1955.
February 10.
The Judgment of the Court was delivered by JAGANNADHADAS J.
These are two connected appeals arising out of a. common judgment of the High Court of Patna on two applications to it dated the 5th July, 1950 and 28th July, 1950, under article 226 of the Constitution.
The State of Bihar is the appellant in both the appeals.
The first three respondents in Appeal No. 97 are the sons of the fourth respondent therein, viz. Kumar Rani Sayeeda Khatoon (hereinafter referred to as Kumar Rani).
The said Kumar Rani is also the first respondent in Appeal No. 98.
The other respondents in both the appeals are Government Officers under the appellant, the State of Bihar.
The applications before the High Court arose with reference to action taken against (1) the property, and (2) the person, of Kumar Rani by the Officers of the Government of Bihar, under the following circumstances.
Kumar Rani was admittedly born in the territory of India and claims to be the lawfully wedded wife of Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according to Muslim rites, She owned and 1261 possessed considerable properties.
In 1946 she created a wakf of her properties consisting of 427 villages for the maintenance and support of herself, her sons and their descendants, by executing a deed of Wakf ulalAulad dated the 4th May, 1946, by which she divested herself of all her interest in the said properties and vested them in Almighty God.
She appointed, herself as the sole mutwalli for her life time or until relinquishment, and her three sons to succeed her as joint mutwallis.
The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that not more than half should be spent by the wakifa for her own use.
In July, 1948, Kumar Rani went to Karachi.
In December, 1948, she returned to India from Pakistan on a temporary permit and went back to Pakistan in April, 1949.
On the 21st June, 1949, the Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No. III of 1949) came into force.
The Deputy Custodian of Evacuee Property issued a notification on the 2nd September, 1949, under section 5 of this Ordinance, declaring all the properties comprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property.
He took possession thereof between the 20th September and 2nd October, 1949.
On the 14th May, 1950, Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan.
This permit was, however, cancelled on the 12th July, 1950, by the Deputy High Cominissioner,on the ground that this was wrongly issued, without the concurrence of the Government, a. , required by the rules made under the Influx from Pakistan (Control) Act, 1949.
In view of this cancellation, the Sub Inspector of Police, Gaya, issued notice to Kumar Rani directing her that since her permanent permit had been cancelled, she should leave lndia by the 31st July, 1950.
In view of these happenings two applications were filed before the High Court of Patna, one dated the 5th July, 1950, challenging the validity of the action taken by the Deputy Custodian declaring the wakf estate as evacuee property and taking posses 1262 sion thereof on the basis of that declaration, and another application dated the 28th July, 1950, challenging the validity of the order of the Sub Inspector of Police, Gaya, directing Kumar Rani to leave India.
The first of these applications was filed by Kumar Rani along with her three sons as petitioners and the second by Kumar Rani alone.
Both these applications were allowed by the High Court and hence these appeals by the State on leave granted by the High Court.
These two connected appeals came up for hearing be fore this Court on the 26th and 27th October, 1953.
This Court after hearing counsel on both sides was of the opinion that one of the essential facts (to be mentioned in detail herein below when dealing with Appeal No. 97) requisite for a proper decision of Appeal No. 97 had been assumed without investigation and that it was necessary to have a finding thereupon after taking evidence.
This Court accordingly re manded Appeal No. 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals (Appeals Nos. 97 and 98) should be heard together.
The finding has now been received and the appeals have been re heard.
It is necessary at this stage to mention that the advocate who appeared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to withdraw his appearance in these appeals and to allow the hearing to proceed ex parte.
The preliminary facts having been stated as above, it will now be convenient to deal with these two appeals separately.
Appeal No. 98 which raises the fundamental question as to the continuing citizenship of Kumar Rani will be taken up first.
Civil Appeal No. 98 of 1952.
This appeal arises out of the application to the High Court dated the 28th July, 1950, challenging the validity of the order dated the 23rd July, 1950, issued by the Sub Inspector of Police, Gaya.
This order is challenged on the ground that Kumar Rani was, and throughout continued to be, a citizen of India and 1263 that the order dated the 23rd July, 1950, which, in substance, amounted to an order of her externment from India, was in violation of Kumar Rani 's fundamental right under article 19 of the Constitution as a citizen of India.
The question that arises is whether, in the circumstances, Kumar Rani was a citizen of India at the date of the order.
The contention of Kumar Rani is that though it is a fact that she did go to Pakistan in the year 1948, she went there only for a temporary purpose, viz. for securing the medical treatment of a reputed Hakim and that she was always and continued to be a citizen of India and that, therefore, the High Commissioner for India in Pakistan had no power to cancel the permit issued to her.
As regards her allegation that when she first went to Karachi in July, 1948, she did so temporarily for the purpose of medical treatment, the learned Judges of the High Court were not inclined to accept her story.
But, all the same, they held that she was and continued to be a citizen of India, on the ground that she was born in India and that her domicile continued to be that of her husband, Captain Maharaj Kumar Gopal Saran Narayan Singh, who, it is not disputed, throughout continued to be in India.
The learned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wife 's domicile continues throughout to be that of her husband during the continuance of marriage.
It appears to us, with respect, that the learned Judges of the High Court completely overlooked article 7 of the Constitution.
The relevant portion of article 5 of the Constitution says as follows: "At the commencement of this Constitution, every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India".
In the view of the High Court since Kumar Rani was born in India and bad the Indian domicile of her husband, she was a citizen of India.
But article 7 says: "Notwithstanding anything in article 5, a person 162 1264 who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India".
There is a proviso to this article which will be noticed presently.
But before noticing the proviso and its effect, it is necessary to mention the following facts which may be taken to have been made out on the record.
(1) Kumar Rani went to Karachi in July, 1948.
(2) Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded.
(3) When she came to India in December, 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national.
(4) She went back to Pakistan in April, 1949, on the expiry of that temporary permit.
(5) She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of.
There can be no doubt on these facts that she must be held to have migrated from the territory of India after the 1st March, 1947.
Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case under article 7.
Article 7 clearly overrides article 5.
It is peremptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India.
Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to article 7.
This proviso is as follows: "Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law".
It is contended with reference to this proviso that 1265 since she in fact returned under a permanent permit, she is entitled to the benefit there of and that the subsequent cancellation of the said permit is both illegal and irrelevant.
Rule 10 of the Permit System Rules, 1949, framed by the Central Government under section 4 of the Influx from Pakistan (Control) Act, 1949, provides that a permit for permanent resettlement in India may be granted by the High Commissioner or Deputy High Commissioner only after securing the agreement of the State or the Province where the applicant intends to settle.
Rule 29 provides that every permit issued under the rules shall be liable to cancellation at any time, without any reason being assigned by the issuing authority.
In the present case, the permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the consent of the State Government concerned should have been obtained before the permit could be issued.
This is a case, therefore, not of a valid permanent permit having been issued and the permit holder returning to India on the strength thereof and the same having been arbitrarily cancelled.
It is a case of an unauthorised issue of an invalid permit which has been properly cancelled.
Hence the proviso to article 7 can have no possible application.
The applicant, is, therefore, not a citizen of India and the order passed by the Sub Inspector of Police, Gaya, dated the 23rd July, 1950, directing Kumar Rani to leave India was accordingly valid.
This appeal must therefore succeed.
Civil Appeal No. 97 of 1952.
This appeal arises out of the application to the High Court dated the 5th July, 1950, challenging the validity of the notification dated the 2nd September 1949, issued by the Deputy Custodian under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate as evacuee property and taking possession thereof.
Three main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee.
(2) She had written a letter dated the 2nd June, 1949, addressed to her ,second son, Kumar Fateh Singh, whereby she relin 1266 quished the office of mutwalli in the wakf estate, and therefore by virtue of the said letter and in pursuance of the terms of the original deed of wakf, her three sons, respondents I to 3, had become the joint mutwallis as well as the owners of the beneficial interest in the wakf estate.
It being undisputed that these three remained in India throughout, it is contended that the property at the date of the notification was the property of these three sons and not of Kumar Rani and that, therefore, the Bihar Administration of Evacuee Property Ordinance, 1949, has no application to the facts.
(3) The Bihar Administration of Evacuee Property Ordinance, 1949, is not applicable to wakf property and to the beneficial interest of the applicants therein.
So far as the first point is concerned an "evacuee" is defined as follows in the Bihar Administration of Evacuee Property Ordinance, 1949: "A person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of November, 1946, left, any place in the Province of Bihar for any place outside the territories now forming part of India".
It is clear that, as already found above, Kumar Rani migrated to Pakistan from India after the 1st March, 1947.
In view of the fact that her plea as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date.
She has, therefore, been rightly taken to be ' an "evacuee" by the Custodian.
As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the ' deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949.
The genuineness of this letter has been challenged and it is the issue as to it 1267 genuineness that was remanded to the High Court for a finding by the previous order of this Court.
The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine.
We have gone through the finding and the material relevant thereto, and can find no reason not to accept it.
There is, therefore, no substance in this second contention.
As regards the third point, the contention is based on the definition of the phrase "evacuee property" in the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows: "Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument".
It is contended that this definition does not apply either to the wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the property in question did not vest in the Custodian.
Now, as already stated, the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949.
This Ordinance was repealed by section 55(2) of Central Ordinance No. XXVII of 1949.
The Central Ordinance defined "evacuee property" as "any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity".
The Central Ordinance was in turn repealed by Cenral Act No. XXXI of 1950 and "evacuee property" has been defined therein as meaning "any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity".
The word "property" is defined as meaning " property of any kind and includes any right or interest in such property".
The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance, each contain section 8(2) providing that 1268 " where immediately before the commencement of this Ordinance (Act) any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the commencement of the Ordinance (Act) be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest".
The definitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary.
There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different.
The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein.
We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt.
This contention must, therefore, fail.
This appeal also must accordingly succeed.
In the result both the appeals are allowed.
The appellant in the circumstances will get only the costs incurred before the High Court on remand in Civil Appeal No. 97 of 1952.
Appeals allowed.

summary:
The relevant portion of article 5 of the Constitution reads: "At the commencement of this Constitution every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India".
Article 7 of the Constitution lays down: "Notwithstanding anything in article 5, a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India".
It was contended on behalf of the respondent Kumar Rani who had migrated from India to Pakistan in 1948 that she was, and continued to be, a citizen of India on the ground that she was born in India and her domicile continued to be that of her husband, who throughout continued to be in India and that her case was covered by article 5 of the Constitution.
Held (repelling the contention) that article 7 of the Constitution clearly overrides article 5.
As the respondent had migrated from India to Pakistan after the 1st March, 1947, her case fell under article 7 of the Constitution and that inasmuch as it was a case of an unauthorised issue of an invalid permit which had been properly cancelled the proviso to article 7 did not apply and that therefore the respondent could not be deemed to be a citizen of India.
Held also, that the definitions of the phrase "evacuee property" in the Administration of Evacuee Property Ordinance 1949 and the (XXXI of 1950) clearly include the interest of an evacuee in any property held as a trustee or beneficiary.
The definition of evacuee property in Evacuee Property Ordinance 1949 (Bihar Ordinance No. III of 1949) is not 1260 different and the words used therein comprise also wakf property and any interest therein.