judgement:
iminal Appeal No., 7 of 1951.
Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 10th March,, ' 1951, of the judicial Commissioner Vindhya 1099 Pradesh, Rewa in Criminal Appeal No. 81 of 1950 arising out of the Judgment and Order dated the 26th July, 1950, of the Court of the Special Judge, Rewa, in ' Criminal Case No. 1 of 1949.
Jai Gopal sethi (K. B. Asthana, with him) for appellant No.1.
S.C. Isaacs (Murtza Fazl Ali, with him) for appellant No. 2.
Porus A. Mehta for the respondent.
March 5.
The Judgment of the Court was delivered by BHAGWATI J.
The appellant No. 1 was the Minister *of Industries and the appellant No. 2 was the Secretary to the Government of the Commerce and Industries Department of the State of Vindhya Pradesh.
The appellant No. 1 was charged with having committed offences under sections 120 B, 161, 465 and 466 of the Indian Penal Code and the appellant No. 2 under sections 120 B and 161 of the Indian Penal Code as adopted by the Vindhya Pradesh Ordinance No. 48 of 1949.
They were tried in the Court of the Special Judge at Rewa under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No. LVI of 1949 and the Special Judge acquitted both of them.
The State of Vindhya Pradesh took an appeal to the Court of the Judicial Commissioner, Rewa.
The Judicial Commissioner reversed the order of acquittal passed by the Special Judge and convicted both the appellants of the several offences with which they were charged.
The Judicial Commissioner awarded to the appellant No. 1 a sentence of 3 years rigorous imprisonment and a fine of Rs. 2,000 in default rigorous imprisonment of 9 months under section 120 B of the Indian Penal Code and a sentence of three years ' rigorous imprisonment under section 161 of the Indian Penal Code, both the sentences to run concur rently.
He imposed no sentence upon the appellant No. 1 under sections 465 and 466 of the Indian Penal Code.
He awarded to the appellant No. 2 a sentence of rigorous imprisonment for one year and a fine of Re. 1,000 and in default rigorous imprisonment for 1100 nine months under section 120 B of the Indian Penal Code.
He did not award any separate sentence to appellant No. 2 under section 161 of the Indian Penal Code.
On an application made to the Judicial 'Commissioner, Rewa, for leave to appeal to the Supreme Court the Judicial Commissioner granted the appellants leave to appeal under article 134(1)(c) of the Constitution in regard to the four points of law raised in the case before him.
The constitutional points involved in the appeal came up for hearing before the Constitution Bench of this court and were dealt with by the Judgment of this court delivered on the 22nd May, 1953.
The Constitution Bench held that the appeal to the Judicial Commissioner from the acquittal by the Special Judge was competent and that there was no infringement of the fundamental rights of.
the appellants under articles 14 and 20 of the Constitution (Vide ; The appeal was accordingly directed to be posted for consideration whether it was to be heard on the merits.
An application wag thereafter made by the appellants to this court for leave to urge additional grounds and this court on the 20th October, 1953, made an order that the appeal should be heard on merits.
The appeal has accordingly come up for hearing and final disposal before us.
The case for the prosecution was as follows.
By an agreement executed on the 1st August, 1936, between the Panna Durbar of the one part and the Panna Diamond Mining Syndicate represented by Sir Chintubhai Madholal and Hiralal Motilal Shah of the other part, the Panna Durbar granted to the syndicate a lease to carry on diamond mining operations for a period of 15 years.
The period of the lease was to expire on the 30th October, 1951, but there was an option reserved to the lessee to have a renewal of the lease for a further period of 15 years from the date of such expiration.
There were disputes between the syndicate on the one hand and the Panna Durbar on the other and by his order dated the 31st October, 1946, the Political Minister of Panna stopped the mining operations of the syndicate.
The, State of 1101 Panna became integrated in the Unit of Vindhya Pradesh in July, 1948, and the administration of Panna came under the control and superintendence of the Government of Vindhya Pradesh with its seat at Rewa under His Highness the Maharaja of Rewa as Rajpramukh and the appellant No.
I became the Minister in charge of the Industries Department in the Cabinet which was formed by the Rajpramukh.
The appellant No. 2 held the post of Secretary, Commerce and Industries Department, and was working under the appellant No. 1.
On the 1st September, 1948, the syndicate appointed one Pannalal as Field Manager to get the said order of the Panna Durbar stopping the working of the mines rescinded.
Pannalal made several applications for procuring the cancellation of the said order and on the 13th January, 1949, and the 26th January, 1949, Pannalal made two applications and handed them over personally to the appellant No. I requesting for the resumption of the mining operations and was asked to come in February for the purpose.
The appellant No. I consulted the legal advisers of the State and a questionnaire was framed which was to be addressed to the syndicate for its answers.
When Pannalal went to Rewa the questionnaire.
was handed over to him on the 9th February, 1949, for being sent to Sir Chinubbai Sir Chinubhai sent the replies to the said questionnaire along with a covering letter dated the 18th February, 1949, where in he expressed a desire to meet the appellant No. 1 for personal discussion in regard to the settlement of the matter of the resumption of the mining operations etc.
In reply to the telegrams sent by Sir Chinubhai on the 19th February, 1949, the Personal Assistant to appellant No. 1 intimated to Sir Chinubhai that he could go to Rewa and see the appellant No. 1 on the 7th March, 1949.
As Sir Chinubhai was ill he deputed his Personal Assistant, Nagindas Mehta to go to Rewa and see the appellant No. 1 on his behalf Nagindas arrived at Rewa on the evening of the 6th March, 1949.
The appellant No. 1 had gone out of Rewa and Nagindas had to wait.
He saw the appellant No. 1 on the morning.
of the 8th March, 1949, but was asked 1102 to see the appellant No. 2.
The appellant No. 2 saw Nagindas at the Guest House where lie had put up and informed Nagindas that a third party was offering Rs. 50,000 for the mining rights.
Nagindas told the appellant No. 2 that the syndicate was a limited concern and could not afford to pay so much money .
but if the amount was reduced they would make an effort to pay the sum.
The appellant No. 2 then told Nagindas that he would talk over the matter with the appellant No. I and let him know.
The same day in the afternoon the appellant No. 2 saw Nagindas at the Guest House and informed him that as the syndicate was working for the last so many years the appellant No. 1 was prepared to reduce the amount to about Rs. 25,000.
Nagindas told the appellant No. 2 that he would talk over the matter with Sir Chinubhai in Bombay and would let him know about it.
Nagindas then left for Bombay but he reached Bombay on the 29th March, 1949, having been detained on the way for some other business of his.
He saw Sir Chinubhai in Bombay and reported to him what had happened, at Rewa and gave him to understand that resumption orders would not be passed unless a bribe of Rs. 25,000 was paid.
Sir Chinubhai did not approve of the idea of giving a bribe and suggested that Nagindas should lay a trap for catching the appellant No. 1.
Nagindas sent a telegram on the 29th March, 1949, agreeing to go to Rewa in the week thereafter for completion.
On receipt of that telegram the appellant No. 2 in the absence of appellant No. 1 who was on tour sent a telegram on the 1st April, 1949, to Sir Chinubhai pressing him to come the same week as his presence was essential to complete the matter which had been already delayed.
On the 4th April, 1949, Pannalal was informed by the appellant No. 2 that the appellant No. 1 was leaving for Delhi that day and that he should go to Bombay and send Sir Chinubhai to Delhi to meet the appellant No. I in the Constitution House where he would be staying.
He also gave a letter to Pannalal to the same effect.
Appellant No. 1 left for Delhi on the 4th April,, 1949, with the files of the Panna Diamond Mining 1103 Syndicate and reached Delhi on the 5th April, 1949.
On the 6th April, 1949, the appellant No. 1 sent a telegram through his Personal Assistant Mukherji to Sir Chinubhai at Bombay asking him to meet the appellant No. I on the 7th, 8th or 9th April, 1949, at 31 Constitution House for final talks regarding the Panna Diamond Mining Syndicate.
On receipt of the said telegram Sir Chinubhai sent a telegram in reply stating that his Personal Assistant, Nagindas and Pannalal were reaching Delhi on the 9th April, 1949.
Nagindas reached Delhi on the 8th April, 1949, and put up at the Maidens Hotel and Pannalal reached Delhi on the 10th April, 1949, and put up at the Regal Hotel.
On the 9th April, 1949, Nagindas informed the appellant No. I on the telephone about his arrival at Delhi and an appointment was fixed for 10 30 am.
on the 10th April, 1949 Nagindas contacted Shri.
Bambawala, the inspector General of Police of the Special Police Establishment on the morning of the 10th April, 1949, before, coming to meet the appellant No. I and told him how the appellant No. 1 was coercing him to pay a bribe.
Shri Bambawala referred Nagindas to Pandit Dhanraj, Superintendent,, Special Police Establishment, and Nagindas told him the whole story of his harassment by the appellant No. 1 and it was then decided to lay a trap for, appellant No. 1.
Nagindas informed Pandit Dhanraj that he would meet the appellant No. 1 at about 11 a.m. and then report their talk to him in the afternoon.
Nagindas then saw the appellant No. 1 at the Constitution House at the appointed time and at this meeting the appellant No. 1 demanded from Nagindas a sum of Rs. 25,000 as a bribe for allowing the resumption of the mining operations and made it quite clear that he would not accept anything less than ' Rs. 25,000.
As Nagindas had not received the moneys from Bombay, the following day, ie., the 11th April, 1949, at 3 p.m. was fixed for the next meeting.
Nagindas thereafter informed Pandit Dhanraj as to what had taken place at the aforesaid meeting between him and the appellant No. 1.
Nagindas went to the Constitution House and saw the appellant No. I at about 3 p.m. on the 11th April,, 1949.
Pannalal was already 143 1104 there.
Nagindas and the appellant No. 1 went into the bedroom where Nagindas requested the appellant No. I to extend the period of the lease for 10 years so that the syndicate might be compensated for the loss sustained by the stoppage of the mining operations.
The appellant No. I thereupon asked Nagindas to submit a written application in Hindi and as Nagindas did not know it he called Pannalal into the bedroom and asked him to write out an application to that effect.
The appellant No. I after making sure from Pannalal that Pannalal was present at Rewa on the 1st April, 1949, asked Pannalal to put the date on the said application as the 1st April, 1949.
The appellant No. 1 made an endorsement at the foot of the said application and dated it as of the 1st April, 1949.
It was arranged that Nagindas should see the appellant No. 1 at 9 p.m. that day, that Nagindas should pay Rs. 25,000 to the appellant No. I at that time and the appellant No.
I would deliver the resumption order to Nagindas on payment of the said sum of Rs. 25,000.
Nagindas then left the Constitution House and reported to Pandit Dhanraj what had transpired between him and appellant No. 1.
He further told Pandit Dhanraj that he had not received any moneys upto that time.
Pannalal was asked to proceed to the Constitution House in advance and inform the appellant No. 1 that Nagindas would be coming along at 9 p.m. that night.
Nagindas and Pandit Dhanraj then proceeded to the house of Shri Shanti Lal Ahuja, Additional District Magistrate.
Pandit Dhanraj made arrangements for a raiding party.
Nagindas 's statement was recorded on oath and a search of his person was made and he was then given three bundles containing 250 Government currency notes of Rs. 100 and a memorandum of the same was also prepared.
After these formalities were gone through Pandit Dhanraj, Nagindas and the Additional District Magistrate along with the police party left for the Constitution House.
It was arranged that Pannalal should be sent out by Nagindas after the completion of the transaction, on some pretext or other to the taxi waiting outside and that this would serve as a signal for the raiding party 1105 which would rush into the room No. 31 Constitution House which was occupied by the appellant No. 1.
Nagindas then went inside the suit of rooms occupied by the appellant No. 1 and the appellant No. 1 took him to his bedroom and closed the door which connected the bedroom with the sitting room where Pannalal was already waiting.
After this the appel lant No. 1 handed over the resumption order to Nagindas and on reading the same Nagindas found that the extension given was only for 4 years and be asked the appellant No. 1 why this was so when the appellant No. 1 had promised before to give an extension for 10 years.
On this the appellant No. I told Nagindas that he should put up another application after a few months and then the appellant No. 1 would extend the period.
Appellant No. 1 then signed the resumption order and put down the date thereunder as the 2nd April, 1949.
As soon as the signed order was handed over to him Nagindas handed over to the appellant No. I the Government currency notes of the value of Rs. 25,000 which had been given to him previously by the Additional District Magistrate.
Nagindas then asked for an extra copy of the said order and the same was accordingly given to him after being dated and initialled by the appellant No. 1.
The appellant No. 1 took the Government currency notes and put them in the upper drawer of the dressing table in the bedroom.
After the transaction was thus completed Nagindas shouted to Pannalal to go to the taxi and bring his cigarette case.
Pannalal went opt to the taxi and on receipt of this signal the Additional District Magistrate and Pandit Dhanraj rushed into the sitting room along with the other members of the raiding party.
The appellant No. 1 met the raiding party at the communicating door between the two rooms.
After the Additional District Magistrate and Pandit Dhanraj had disclosed their identity appellant No. I was asked by Pandit Dhanraj whether he had received any money as a bribe to which the appellant No. 1 replied in the negative.
Pandit Dhanraj then told appellant.
No. 1 that he should produce the money which he had received, otherwise he would be 1106 forced to search the room.
On this appellant No. I went to the said dressing table, opened the top drawer and brought out the three bundles of Government currency notes given to him by Nagindas and handed them over to Pandit Dhanraj.
On inquiry by the Additional District Magistrate as to how he had come into possession of the said notes, the Appellant No. 1 stated that he had brought Rs. 40,000 from his home out of which Rs. 15,000 had been spent by him in the purchase of a motor car and the remaining sum was with him which was required by him to purchase some ornaments in connection with the marriage of his daughter.
In the meanwhile two respectable witnesses, Shri Gadkari, who was a member of the Central Electricity Authority, Ministry of Works;, Mines and Power, Government of India, and Shri Perulakar, who was the Minister for Agriculture and Labour, Madhya Bharat, were brought to the bedroom of the appellant No. 1 by the police.
The appellant No. 1 repeated the said statement and gave the same explanation before these two witnesses which he had given and made before the Additional District Magistrate and Pandit Dhanraj a little while before.
Nagindas was then searched in the presence of these two witnesses and the two copies of the order which had been given to him by appellant No. I were recovered from his person.
Two other copies of the said order and the application and the file of the Panna Diamond Mining syndicate were recovered from the. search of the upper drawer of, the dressing table in the bedroom of appellant No. I Appellant No. 1 also produced a receipt in support of his story of the purchase of the car.
The relevant memos of the search were prepared and also a list of the numbers of the Government currency notes of Rs. 25,000 which had been produced by the appellant No. 1.
This list was compared and checked by the said witnesses Gadkari and Perulgkar with the numbers of notes and also with those appearing in the list which was in the possession of the Aditional District Magis trate and which, was shown to the said witnesses.
They found that the numbers in the said two lists tallied in all respects.
After the completion of the list the Additional 1107 District Magistrate confronted appellant No. 1 with the documents which were produced before him by Nagindas and also the list of notes and asked appellant No. 1 if he had any explanation to offer.
The apppllant No. 1 was confused and could give no explanation.
On further enquiry whether the appellant No. I had any other money with him, he opened an iron confidential box a key of which was in his possession and brought out a sum of Rs. 132 which was not taken charge of as the same had no concern with the case.
Thereafter appellant No. I was put under arrest and was subsequently released on bail.
* * * * After these documents were forged the next important event was the passing, of the sum of Rs. 25,000 as and by way of bribe or illegal gratification by Nagindas to the appellant No. 1.
Here also it would have been difficult for the prosecution to establish the guilt of the appellant No. 1 if the matter had rested merely on the evidence of Nagindas or that of the police witnesses supported a,% they were by Shanti Lal Ahuja, the Additional District Magistrate.
Nagindas 's evidence suffering from the infirmity pointed out before could not be enough to carry conviction with the court.
He was out to trap the appellant No. 1 and had been clever enough also to have inveigled the police authorities to procure the wherewithal of the bribe for him.
It is patent that but for the procurement of these Rs. 25,000 by the police authorities and their handing over the sum to Nagindas, Nagindas would not have had the requisite amount with him and the offence under section 161 would never have been committed.
The police authorities also exhibited an excessive zeal in the matter of bringing the appellant No. 1 to book and their enthusiasm in the matter of trapping the ' appellant No. I was on a par.
with that of Nagindas and both the parties were thus equally to blame in the matter of entrapping the appellant No. 1.
The evidence of these witnesses therefore was not such as to inspire confidence in the mind of the court.
Shanti Lal Ahuja, the Additional District Magistrate, also lent himself to the.
police authorities and became 1108 almost a limb of the police.
His position as the Additional District Magistrate was submerged and he reduced himself to the position of an ordinary witness taking part in the affair as a member of the raiding.
party and his evidence could be no better or no worse than that of the police witnesses themselves.
If therefore the matter had rested merely upon their evidence it would have been difficult to carry the guilt home to the appellant No. 1.
The evidence as to the recovery of this sum of Rs. 25,000 from the top drawer of the dressing table in the bedroom of the appellant No. I and also in regard to the handing over of that sum by the appellant No. I to Shanti Lal Ahuja, the Additional District Magistrate, was equally tainted and if that evidence stood by itself no court would have been safe in acting upon the same.
The statement which was made by the appellant No. I to Shanti Lal Ahuja, the Additional District Magistrate, was inadmissible in evidence.
Section 162 of the Criminal Procedure Code rendered the statement made by the appellant No. I to the police officers inadmissible.
The investigation into the offence had already started immediately on the First Information Report being registered by the police authorities and Pandit Dhanraj himself admitted in his evidence that the investigation into the offence had thus started before the raid actually took place.
The statement made by the appellant No. 1 to Shanti Lai Ahuja, the Additional District Magistrate was therefore made after the investigation had started and during the investigation of the offence and was therefore hit by section 164 of the Criminal Procedure Code.
It was urged on behalf of the respondent that this statement was not a confessional statement and was therefore not hit by section 164 and Shanti Lai Ahuja, the Additional District Magistrate, could therefore depose to such statement even though the same was not recorded as required by the provisions of section 164 of the Criminal Procedure Code.
There is authority however for the proposition that once the investigation had started any non confessional statement made by the accused also required to be recorded in the manner indicated in that section and if no such record had 1109 been made by the Magistrate, the Magistrate would not be competent to give oral evidence of such statement having been made by the accused.
(See A.I.R. 1936 Privy Council 253 and Indian Law Reports 49 Calcutta 167 followed in and A.I.R. 1937 Nagpur 254).
The statement made by the appellant No. 1 therefore to Shanti Lal Ahuja, the Additional District Magistrate, not having been recorded by him in accordance with the provisions of section 164 was inadmissible in evidence and could not be proved orally by him.
, If therefore the statement was thus eliminated from evidence nothing remained so far as the witnesses Nagindas and Pannalal on the one hand and the police witnesses as well as Shanti Lal Ahuja, the Additional District Magistrate, on the other hand were concerned which could bring the guilt home to the appellant No. 1.
Reliance was therefore placed by the prosecution on the evidence of Gadkari and Perulakar.
They occupied responsible positions in life and were absolutely independent witnesses.
Two criticisms were levelled against their evidence by the Special Judge.
The one criticism was that contrary to the evidence of Pandit Dhanraj they asserted that their, statements were not recorded on the night of the 11th April, 1949.
Pandit Dbanraj had recorded their statements after they had left the bedroom of the appellant No. I at the Constitution House relying upon his memory of the events that had happened that night.
These statements however were not read over to them and therefore could not have the value which otherwise they would have had.
The other criticism was that they had appended their signatures to the Panchnama of the numbers of the currency,notes recovered at that time which Panchnama contained the statement that on being asked the appellant No. I had produced the bundles of currency notes from the top drawer of the dressing table.
This statement was not factually correct as both these witnesses were brought into the bedroom of the appellant No. I after the recovery of the Government currency notes by the police from the appellant No., 1.
It was certainly indiscreet on their part not to have scrutinised 1110 the contents of the Panchnama before they appended their signatures thereto.
That is however a far cry from coming to the conclusion that they acted in a highly irresponsible manner and their testimony was unreliable.
The circumstances under which the numbers of the currency notes were recorded in the Panchnama, the statement made by the appellant No. 1 to them and the confusion into which the appellant No. 1 fell when he was questioned by the police authorities on the tallying of the numbers contained in the memo prepared when the raid was organised with the numbers of the currency notes actually found in the bedroom of the appellant No. 1 were events which would indelibly print themselves in the memory of these witnesses and even though they were examined in the Court of the Special Judge about 10 months after the occurrence, these events and particularly the fact that the appellant No. I claimed these moneys which were thus recovered as his own would certainly not be in any manner whatever forgotten by them.
The only suggestion which was made against the credibility of these witnesses on this point was that they must not have exactly remembered what transpired on that night in the bedroom of the appellant No. I and that they might have committed an honest mistake when narrating the events that had happened on that night.
An honest lapse of memory would no doubt be a possibility but having regard to the circumstances of the case we are of the opinion that the events that happened that night in the bedroom of the appellant No. I and which were deposed to, by these witnesses were not such as to be easily forgotten by them and when these witnesses deposed to the fact that the appellant No. I claimed this sum of Rs. 25,000 as his own and was utterly confused when explanation was sought from him by the police authorities in regard to the tallying of the numbers of these Government currency notes, it is not easy 'to surmise that they were suffering from any lapse of memory.
The evidence of these witnesses in regard to the statement made by the appellant No. 1 before them was also attacked on the ground that Shanti Lal 1111 Ahuja, the Additional District Magistrate 's asking the appellant No. 1 to repeat the statement which he had earlier made before him to these witnesses was a mere camouflage.
Shanti Lal Ahuja, the Additional District Magistrate, knew very well that the statement made by the appellant No. 1 to him was not recorded under the provisions of section 164 of the Criminal Procedure, Code and was therefore inadmissible in evidence and he therefore resorted to these tactics of having the appellant No. 1 repeat the very same statement to these witnesses so as to avoid the bar of section 164.
Reliance was placed in this behalf on A.I.R. 1940 Lahore 129 (Full Bench) where it wag held that if on the facts of any case it was found that a statement made to a third person was in reality intended to be made to the police and was represented as having been made to a third person merely as a colourable pretence in order to avoid the provisions of section 162 the court would hold it excluded by the section.
The same ratio it was submitted applied to the statements made to these two witnesses because they were a colourable pretence to avoid the provisions of section 164 of the Criminal Procedure Code which had certainly not bee n complied with by Shanti Lal Ahuja, the Additional District Magistrate.
It has however to be observed that every statement made to a person assisting the police durirng an investigation cannot be treated as a statement made to the police or to the Magistrate and as such excluded by section 162 or section 164 of the Criminal Procedure Code.
The question is one of fact and has got to be determined having regard to the circumstances of each case.
On a scrutiny of the evidence of these two witnesses and the circumstances under which the statements came to be made by the appellant No. 1 to them we are of the opinion that the appellant No. I was asked by Shanti Lal Ahuja, the Additional, District Magistrate, to make the statements to these two witnesses not with a view to avoid the bar of section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater caution particularly having regard to the fact that the appellant No. 1 occupied the position .of a Minister of 144 1112 industries in the State of Vindhya Pradesh.
The statements .made by the appellant No. 1 to these witnesses therefore did not suffer ' from this disability and were admissible in evidence.
The evidence of these witnesses being thus worthy of credit and the statements made by the appellant No. 1 to them being admissible in evidence there is no doubt that the appellant No. 1 claimed these moneys, viz., Rs. 25,000, which were recovered from the top drawer of the dressing table in the bedroom of the appellant No. 1 as his own being the balance of Rs. 40,000 which he had brought from his home when he came to Delhi.
If this was ' so the very fact that the numbers of these Government currency notes of the value of Rs. 25,000 tallied with the numbers of the notes which had been handed over to Nagindas earlier when the raid was organised and which numbers were also specified in the memo prepared at that time was enough to establish the falsity of the allegation made by the appellant No. 1 that he had brought these moneys from his home These moneys were proved to have been provided by the police authorities and given to Nagindas when the raid was organised and were the instruments of the offence of the taking of the bribe or illegal gratification by the appellant No. 1.
If the numbers of these notes tallied with the numbers of the notes which were thus handed over by the police authorities to Nagindas they could not have belonged to the appellant No. 1 and were certainly brought there by Nagindas and handed over by him to the appellant No. 1 as alleged, by the prosecution.
A suggestion was made that there was oportunity for Nagindas to plant these moneys into the top drawer of the dressing table when the back of the appellant No. 1 was turned upon him.
Even assuming that there was that possibility it is sufficiently negatived by the fact that when these moneys were recovered from the top drawer either at the instance Nagindas as alleged by the appellant No. 1 or at, the instance of the appellant No. 1 as alleged by the prosecution the appellant No. 1 did not express any surprise at these moneys being thus found there.
If the version of the appellant No. 1 1113 was correct he had only brought about Rs. 25,000 from his house.
Rs. 15,000 has been already spent by him in the purchase of the car.
, About Rs. 10,600 were spent by him in the purchase of the ornaments and only a sum of Rs. 100 odd was the, balance left with him.
According to that version there was not the slightest possibility of the sum of Rs. 25,000 being found in the top drawer of the dressing table.
Far from expressing a surprise in this manner the appellant No. 1 claimed these moneys as his own.
The appellant No. 1 could not have by any mischance failed to appreciate that these Government currency notes which were thus recovered from the to p drawer of the dressing table exceeded by far the amount which according to him he had left with him by way of balance and the most natural reaction to the recovery of this large sum of money would .
have been that he would have certainly denied that these moneys were his and he would have been surprised at finding that such a large sum of money was thus found there.
No such reaction was registered on his face.
On the contrary if the evidence of the two witnesses Gadkari and Perulakar is to be believed and we see no reason why it should not be believed, the appellant No. 1 claimed this sum of Rs. 25,000 as his own being the balance out of the money which he had brought from his home when he came to Delhi.
This is sufficient to establish that these moneys which earlier bad been handed over by the police authorities to Nagindas found their way into the top drawer of the dressing table in the bedroom of the appellant No. 1 and were the primary evidence of the offence under section 161 having been committed by the appellant No. 1.
The further circumstance that on the num bers of these notes being tallied and his explanation in that behalf being asked for by the 'Police authorities the appellant No. 1 was confused and could furnish no explanation in regard thereto also supports this conclusion and there is no doubt left in our minds that the appellant No. 1 was guilty of the offence.
under section 161 of the Indian Penal Code with ;Which he was charged 1114 We cannot however leave this case without expressing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja, the Additional District Magistrate, took in this affair.
As already observed this offence would never have been committed by the appellant No. I but for the fact that the Notice authorities provided Nagindas with the wherewithal of the commission of the offence.
Sir Chinubhai as it appears from the evidence was not in a position to provide Nagindas with this sum of Rs. 25,000 or any large sum and in fact in spite of the telephone calls made by Nagindas upon him had not provided any amount beyond Rs. 3,000 which was meant for the other expenses of Nagindas, to him.
Nagindas was therefore not in a position to provide this sum of Rs. 25,000 for payment of the bribe or the illegal gratification to the appellant No. 1.
But for the adventitious aid which he got from, the police authorities the matter would not have progressed any further, and Nagindas would I have left Delhi empty handed.
The police authorities however once they got scent of the intention of Nagindas thought that it was too good an opportunity to miss for entrapping the appellant No. 1 who occupied the position of the Minister of Industries in the State of Vindhya Pradesh.
They therefore provided the sum of Rs. 25,000 on their own and handed it over to Nagindas.
The police authorities in this step which they took showed greater enthusiasm than Nagindas himself in the matter of trapping the .appellant No. 1.
It may be that the detection of corruption may sometimes call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself.
It is the duty of the police authorities to prevent crimes being committed.
It is no part of their business to provide the instruments of the offence.
We cannot too strongly disapprove of the step which the police authorities took in this case in the matter of providing the sum of Rs. 25,000 to Nagindas who but for the 1115 police authorities thus coming to his aid would never have been able to bring the whole Affair to its culmination.
Not only did the police authorities thus become active parties in the matter of trapping the appellant No. I they also provided a handy and an ostensibly independent witness in the person of Shanti La] Ahuja, the Additional District Magistrate.
Even though he was a member of the judiciary be lent his services to the police authorities and became a limb of the police as it were.
The part which Shanti Lal Ahuja, the Additional District Magistrate, took in this affair cannot be too strongly condemned.
We can only repeat in this connection the observations of the Privy Council in A.I.R. 1936 Privy Council 253 at page 258 in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens.: "In their Lordships view it would be particularly unfortunate if Magistrates were asked at all generally to act,rather as police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under section 164.
In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. . " The position was laid down with greater emphasis by Mr. Justice P. B. Mukharji in A.I.R. 1951 Calcutta 524 at page 528 where the learned Judge observed: "Before I conclude I wish to express this court 's great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps.
The Magistrate is made to go under disguise to witness the trap laid by the police. 'In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who became such witnesses.
To make the Magistrate a party or a limb of the police during the police investigation seriously 1116 undermines the independence of the Magistrates and ,perverts their judicial outlook.
The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgments on the acts and conduct of the police.
It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case.
This practice is all the more indefensible here specially when there is no separation of the executive from the judiciary.
The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case without the Magistrate himself being in any way a partisan or a witness to police activities.
There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved.
That is not the Way to secure respect for the Magistracy charged with the administration of justice.
In my judgment this is a practice which is unfair to the accused and unfair to, the Magistrates.
It is also unfair to the police.
Because charged with the high responsibility and duty of performing a great and essential public service of this State the police cannot afford to run the risk of opprobrium ' even if unfounded, that they have enlisted the Magistrate in their cause.
That risk is too great and involves forfeiting public respect and confidence. . . " We perfectly endorse the above observations made 'by Mr. Justice P. B. Mukharji and hope and trust that Magistrates will not be employed by the police authorities in the manner it was done by the Special Police Establishment in this case before us.
The independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activities of this character and it is of the essence that public confidence in the independence of ,the judiciary should not be undermined by any such tactics adopted.
by the executive authorities We have therefore eliminated from our consideration the whole of the evidence given by Shanti Lal Ahuja, the Additional District Magistrate, and come to our conclusion in regard to the guilt of the appellant No. I relying solely on the testimony of the two independent witnesses Gadkari and Perulakar.
The result therefore is that the appeal of the appellant No. 1 will be dismissed except with regard to his conviction and sentence, under section 120 B of the Indian Penal Code and the convictions and sentences passed upon him by the Judicial Commissioner under section 465 and section 466 as also section 161 of the Indian Penal Code will be confirmed.
The appeal of the appellant No. 2 will be allowed and he be acquitted and discharged of the offences with which he was charged and immediately set at liberty.
The bail bond of the appellant No. 2 will be cancelled.

summary:
After the investigation into an offence has been started on the registration of the First Information Report by the Police, no statement made by the accused to the Magiarate can be proved unless the statement has been recorded in accordance with the provisions of section 164 of the Code of Criminal Procedure and therefore, if the non confessional statement has not been recorded by the Magistrate in the manner indicated in section 164, the Magistrate would not be competent to give oral evidence of such statement having been made by the accused.
Nazir Ahmad vs King Emperor (A.I.R. , Legal Bomembrancer vs Lalit Mohan Singh Boy (I.L.R. 49 Cal.
167), Abdul Bahim and Others vs Emperor and Karu Mansukh Gond vs Emperor (A.I.R. referred to.
The conduct of the Police and the Additional District Magistrate inactively instigating the accused to commit the off once of which he was charged by furnishing him with the necessary materials (without which he could not have committed the offence), for the purpose of trapping him, was strongly disapproved.
It is the duty of the police to prevent the crimes being committed.
It, is no part of their duty to provide the instruments of the offence.
The observations of Mr. Justice P. B. Mukherji in the case of M. 0.
Mitra vs The State (A.I.R. at p. 528) condemning the practice of sending Magistrates as witnesses of Police trap endorsed because such practice makes a Magistrate a party or a limb of the Police during police investigation and undermines seriously the independence of the Magistrates and perverts their judicial outlook.


judgement:
Appeal No. 2177 of1966.
Appeal by special leave from the judgment and order dated July 12, 1963 of the Mysore High Court in Writ Petition No. 1076 of 1962.
Veda Vyasa, R. Ganapathy Iyer, R. N. Sachthey and section P. Nayar, for the appellant.
R. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The respondents a Hindu undivided family were assessed for the assessment year 1949 50 to tax under s ' 23 of the Mysore Income tax Act on a total income of Rs. 10,100/ The Second Additional Income tax Officer (Urban Circle), Bangalore, commenced a proceeding under section 34 of the Mysore Income tax Act for re assessment of the income of the respondents for the 7 assessment year 1949 50, and served a notice in that behalf on March 6, 1951.
On May 21, 1954 the Income tax Officer determined the respondents ' total income at Rs. 75,957/ .
In appeal against the order, the Appellate Assistant Commissioner of Income tax. 'A ' Range, Bangalore, by order dated November 4, 1961, set aside the order and directed the Income tax Officer to make a fresh assessment after making inquiries on certain matters specified in the order.
At the request of the respondents under section 66(2) of the Mysore Income tax Act, the Commissioner of Income tax, Mysore, referred the following questions to the High Court of Mysore: "1.
On the facts and in the circumstances of the assessee 's case whether within the meaning of section 34 of the Mysore Income tax Act, if a notice under that section is issued within the prescribed period, whether the Income tax Officer can proceed to assess or re assess such escaped income after four years from the close of the assessment year? 2.
On the facts and in the circumstances of the case, whether the Appellate Assistant Commissioner of Incometax is competent to set aside and give directions to the Income tax Officer to re do the assessment in the manner the Appellate Assistant Commissioner of Income tax has done?" At the hearing of the reference, the respondents did not press the first question, and the High Court answered the second question in the affirmative.
The Income tax Officer commenced inquiry directed by the Appellate Assistant Commissioner.
The respondent , then applied to the High Court of Mysore for issue of a writ of prohibition restraining the Income tax Officer from continuing the assessment proceeding for the year 1949 50 on the plea that the proceeding was because of expiry of the period of limitation barred.
The High Court of Mysore upheld the contention of the respondents and allowed the petition.
In the view of the High Court the provisions of section 34 of the Mysore Income tax Act were "more or less similar to Rule 34 of the Mysore Sales Tax Act, 1948.
Hence the present case clearly comes within the rule laid down by this Court in M/s K. section Subbarayappa and Sons vs State of Mysore [(1952)] Mysore L. J. 2341 which means that the present proceedings are barred".
The Commissioner of Income tax has appealed to this Court with special leave.
The question arising in this appeal must, it is common ground, be determined in the light of the provisions of the Mysore Incometax Act, 1923.
Even after the merger of the State of Mysore with 8 the Union of India a proceeding for assessment of income tax relating to the assessment year 1949 50 has to be heard and disposed of under the Mysore Act.
Section 34 of the Mysore Incometax Act reads as follows "If for any reason, profits or gains chargeable to income tax have escaped assessment in any year, or have been assessed at too low a rate, the Income tax Officer may, at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and may proceed to assess or re assess such income, profits or gains and the provision of this Act shall, so far as may be, apply according as if the notice were a notice issued under that sub section".
A proceeding for re assessment under section 34 of the Mysore Act may be commenced if two conditions co exist: (i)that the profits and gains chargeable to income tax have escaped assessment or have been assessed at too low a rate, and (ii) the notice is served within four years of the end of the year of assessment.
But if a proper notice is served within the period provided by the section, the proceeding may be completed even after the expiry of four years from the close of the assessment year, for the Act prescribes no period for completion of the proceeding.
A notice for re assessment was in fact served on the respon dents on March 6, 1951 under section 34 of the Mysore Act.
That notice was served within four years of the end of the year of assessment 1949 50, and the Income tax Officer was of the view that tie profits or gains chargeable to income tax had escaped assessment in the year 1949 50.
It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents.
He merely remanded the case for further inquiry to be made in the light of the directions given by him.
It is difficult to appreciate the grounds on which it could be held that the proceeding for re assessment to tax the income which had escaped assessment in the year 1949 50 commenced after due notice served on March 1951 was barred.
The High Court was, in our judgment, plainly in error in holding that the proceeding for re assessment was barred.
It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore.
That question was not pressed before the High Court, and it must be deemed to have been answered 9 against the respondents.
That question could not thereafter be reagitated by the respondents in a petition for the issue of a writ under article 226 of the Constitution.
The appeal is allowed.
The order passed by the High Court is set aside.
The respondents will pay the costs of the Commissioner in this Court and in the High Court.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The Income tax Officer, Bangalore commenced a proceeding under section 34 of the Mysore Income tax Act for reassessment of the income of the respondents for the assessment year 1949 50 and served a notice in that behalf in March 1951, on the respondents.
The Income tax Officer determined the total income of the respondents in May 1954, but the order was set aside by the Appellate Assistant Commissioner in November 1961, and the Income tax Officer was directed to make a fresh inquiry, When the Income tax Officer commenced inquiry, the respondents applied to the High Court for a writ of prohibition and the High Court passed an order restraining the Income tax Officer on the ground that the assessment proceeding was barred because of the expiry of the period of limitation.
In appeal to this Court, Held: The High Court was in error, because, though the Appellate Assistant Commissioner vacated the Income tax Officer 's assessment order of 1954 and remanded the case for further inquiry, the Appellate Assistant Commissioner did not set aside the notice of March 1951 served on the respondents, If a proper notice was served within the period provided by the section (four years from the close of the assessment year) the proceeding could be completed even after the expiry of four years for the Act prescribes no period for completion of the proceeding.
[8E G]


judgement:
Civil Appeal No. 767 of Appeal by special leave from the judgment and order dated August 14, 1961 of the Rajasthan High Court in D.P. Civil Misc.
Application No. 128 of 1960.
Gopi Nath Kunzru, W.S. Barlingay and Ganpat Rai, for the appellant.
C.B Agarwala, K.K. Jain, H.K. Puri and Uma Mehta, for respondents Nos. 3, 4, 5, 7, 12, 13, 15 18, 21, 23 and 24.
The Judgment of the Court was delivered by Bachawat, J.
On September 10, 1955, Narain Lal, Mool Chand, Mangilal and Kesharichand obtained the consent in writing of the Advocate General, Rajasthan to institute a suit against 917 the respondents under section 92 of the Code of Civil Procedure.
The consent was in these terms : "For the reasons detailed above I grant permission to the applicants Sarvashri (1) Narainlal, (2) Mool Chand, (3) Mangilal and (4) Seth Kesharichand for filing suit against the opposite parties Shri Malilal Kasliwal and 27 other members and office holders of the executive committee Jain Atishaya Kshetra Shri Mahabir Swami Temple Chandangaon, for the reliefs detailed in para 28 sub paras I to 5 and 7 of the draft plaint filed by them before me.
" Shortly thereafter Mangi Lal died.
On March 6, 1956, Narain.
Lal Mool Chand and Kesari Chand instituted a suit against the respondents under section 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs.
On March 9, 1958, Kesari Chand died.
The trial court raised and tried the following preliminary issue "Whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangi Lai who died prior to the institution of the suit ?" The trial court held that the suit was maintainable.
The High Court in its revisional jurisdiction set aside the order of the trial ' court and held that the suit was not maintainable.
The present appeal has been tiled from the order of the High Court by special leave.
A suit claiming any of the reliefs specified in sub section
(1) of section 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may be instituted by the Advocate General or "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General", and save as provided by the and certain other laws, no suit claiming Such reliefs in respect of any such trust can be instituted except in conformity with sub section
(1) of section 92.
In the present case, fourpersons obtained the necessary sanction of the Advocate General.
one of them died before the suit was filed, and the remaining three, instituted the suit.
The question is whether the suit is brought in conformity with section 92(1).
The decided cases show that a suit under section 92 must be, brought by all the persons to whom the sanction of the Advocate General has been given, and a suit instituted by some of them 918 only is not maintainable.
In Muddala Bhagayannarayana V. Vadapalli Perumallacharyulu(1) where the, sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and hall refused to join as plaintiffs, it was held that the suit was not maintainable.
In Pitchayya and another vs Venkatakrishnamacharlu and eleven others(2), where the sanction was given to three persons, the court held that the suit instituted by two of them.
was invalidly brought and the defect could not be cured by impleading the other person as a defendant.
In Sibte Rasul vs Sibte Nabi and others(1), where four persons obtained the sanction and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of the delivery of the judgment.
We may add that in Venkatesha Malia vs B. Ramaya Hegade and twelve others(1) where the sanction to sue under section 18 of the was given by the district judge to two persons, it was held that only one of them could not institute the suit.
We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent.
As Sir George Rankin said in Musammat Ali Begam vs Badr ul Islam Ali Khan(1), "where the consent in writing of the Advocate General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only.
The suit as instituted must conform to the consent.
Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao vs Ramdas Daduram(6), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see Musammat Ali Begam vs Badr ul Islam Ali Khan (5).
In Shea Ram vs Rain Chand and others ( 7 the sanction of the Collector to bring a suit under section 92 was given to twenty persons.
One of them died before the suit was brought and the remaining nineteen instituted the suit.
Skempg, J. held that in view of tile two Privy Council rulings the suit was validly instituted.
But he erroneously assumed that in Musammat Ali Begam vs Badr ul Islam Ali Khan(5) it was held that where the sanction had been given to three persons, a suit by two of them only was validly (1) (2) I.L.R. (3) I.L.R. (1943) All. 112.
(4) 1.L.R. 38 Mad.
(5) I.L.R. 65 1.
A. 198.
(6) L.R. 48 I.A. 12.
(7) A.I.R. 1940 Lah.
919 instituted.
From the report of Raja Anand Rao vs Ramdas Daduram(1), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent.
We are unable to agree with the Lahore ruling.
Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent.
Fresh sanction must be obtained by the survivors for the institution of the suit.
We must hold that the suit brought by the appellants was competent.
The High Court rightly held that the suit was not maintainable.
This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate General or Collector.
In the result, the appeal is dismissed without costs.
G.C. Appeal dismissed (1) L. R. 48 I.A. 12.

summary:
Four persons obtained.
the consent of the Advocate General of Rajasthan to institute a suit against the respondents under section 92 of the Code o,f Civil Procedure.
Shortly thereafter one of the said four persons died and the suit was instituted by the three survivors.
On the preliminary issue whether the suit filed by three persons, when the permission had been given to.
four, was maintainable, the trial court held that it was.
The High COurt, however, in revision held the suit not to.
be maintainable.
Appeal was filed in this Court by special leave.
HELD: An authority to sue given to several persons without more is a joint authority and must be exercised by all jointly, and a suit by some of them only is not competent.
When sanction in the present case was given to.
four persons and one of them died before the institution of the suit, a suit by the remaining three was incompetent.
Fresh sanction must be obtained by the survivors for the institution of the suit.
[918D E, 919B ] Muddala Bhagavannarayana vs Vadapalli Perumallacharyuht, , Pitchayya & Anr.
vs Venkatakrishnamacharlu & eleven Ors.
I.L.R. , Sibte Rasid vs Sibte Nabi & Ors.
I.L.R. (1943) All 112 Venkatesha Mafia vs B. Ramaya Hegade and twelve Ors.
I.L.R. 38 Mad.
1192, Musammat Ali Begam vs Badr ul Islam Ali Khan, L.R. 65 I.A. 198, Raja Anand Rao vs Ramdas Daduram.
L.R. 48 I.A. 12 and Sheo Ram vs Rama Chand & Ors., A.I.R. 1940 Lab. 356, referred to.


judgement:
Appeal No. 215 of 1961.
Appeal by special leave from the judgment and decree dated January 22, 1958 of the Bombay High Court at Rajkot in Civil First Appeal No. 93 of 1956.
R. H. Dhebar, for the appellant.
H. K. Puri and Bishamber Lal, for the respondents Nos.
The Judgment of the Court was delivered by Shelat, J.
In 1947 and prior thereto the respondent carried on business as an exporter of fish in the State of Junagadh in the name and style of Ayub lqbal and Company.
In 1947 the Customs authorities of the, State of Junagadh seized two motor trucks, a station wagon and other goods belonging to the respondent on the grounds, (a) that the respondent had not paid import duties on the said trucks, (b) that they were used for smuggling goods in the State and (c) that some of the goods were smuggled goods.
The action was taken under the Junagadh State Sea Customs Act, II of S.Y. 1998 then in vogue in the State.
The respondent filed an appeal against tbis order to the Home Member of the State as provided in the said Act.
Pending the appeal, the State of Junagadh merged in the United States of Saurashtra which ultimately was converted into the State of Saurashtra.
The State of Saurashtra thereafter merged with the former State of Bombay and on bifurcation of the Bombay State became part of the State of Gujarat.
In the meantime the appeal was transferred to the Revenue Tribunal which was constituted by the State of Saurashtra and which was the competent forum to hear such appeals.
On February 6, 1952, the Revenue Tribunal set aside the said order of confiscation of the Customs authority and directed the return of the said vehicles to the respondent.
On March I '), 1952, the respondent applied for the return of 'the said vehicles but was informed that they had been disposed of under an order of a Magistrate passed under section 523 of the Code of Criminal Procedure and that the sale proceeds viz., Rs. 2213/8/ were handed over to a creditor of the respondent under an attachment order passed in his favour.
On February 5, 1954, the respondent filed 940 the present suit for the return of the said vehicles or in the alternative for their value viz., Rs. 31786/8/ on the ground that pursuant to the said order of the Tribunal, which in the absence of any proceedings against it had become final, the State Government was bound to hand over the said vehicles.
In its written statement the State Government denied the respondent 's claim 'Lind took up diverse pleas.
It is not necessary to go into the details of these pleas except to say that the State Government did not raise any contention therein 'that it was not liable for any tortious act committed in respect of the said goods and vehicle s by any one of its servants.
On these pleadings the trial court raised various issues.
No issue with regard to the absence of liability for the tortious act of any servant of the Government was or could be raised in the aforesaid state of pleadings.
The evidence led by the State and in particular of the police officer Trambaklal Naranji showed (a) that the said vehicles were seized in 1947 by the Customs Officer of the State of Junagadli, (b) that somehow they were kept in an open space opposite to the police station at Veraval, (c) that they remained totally uncared for from 1947 to October, 1951 with the result that the greater part of the machinery of the vehicles, tyres and even some wheels were pilfered away leaving only the skeletons of the vehicles, (d) that no entries were made in any of the registers maintained at the police station to show as to how these vehicles came to be kept in the said open space or whether the customs authority had handed over the said vehicles to the police for safe custody, (e) that in October, 1951, witness Trambaklal who was then incharge of the police station reported to his superior officers the fact of these vehicles lying in the said open space as uncared and unclaimed vehicles, (f) that on October 3, 1951, directions were given to him to apply to the Magistrate for disposal of the said Vehicles as unclaimed property under section 523, (g) that on October 21, 1951, the police recorded a Panchanama as regards the condition of the said vehicles, and (h) that on October 29.
1951 pursuant to the said directions, the police officer made an application which mentioned the fact that these vehicles were seized by the Port Commissioner in 1947 from Memon Mahomed Haji Hasam of Veraval, the respondent.
It is clear that in spite of the police authorities being aware that the said vehicles were seized from the respondent, his name having been mentioned in the said application, no notice was served upon him of the said application which, as aforesaid, was made on the footing that the said vehicles were unclaimed property.
The only notice which was issued by the Magistrate was a public notice which was ordered to be pasted at a public place.
Clearly, the respondent was right when he said that he was not aware of the said proceedings or the order passed by the Magistrate therein.
It appears from the Rojkam of the Magistrate 's court that on February 9 41 5, 1952, the said vehicles were auctioned in the condition in which they were and only Rs. 2,000 and odd were realised from that auction.
The trial court found that the customs officer was competent to seize the said vehicles on a suspicion that a custom offence tinder the said Act had been committed.
It held, however, that after the Tribunal had set aside his order and directed the return of the said property to the respondent it was the duty of the State Government to return the said property and on failure to do so the respondent had a cause of action and the suit was maintainable.
On these findings, the trial court passed a decree against the State Government for Rs. 26797/8/ .
The State Government thereupon filed an appeal in the High Court of Bombay at Rajkot taking a number of grounds in its memorandum of appeal.
In the memorandum of appeal the State Government inter alia raised the following grounds : "The learned Civil Judge ought to have decided that the State is not liable for any acts tortious or otherwise of its servants and of the customs or the police authorities".
The High Court held that no such plea having been taken in its written statement nor any issue having been raised in the trial court, the State Government was not entitled to raise the contention for the first time in the appeal.
The High Court confirmed the said decree except for a slight reduction in the decretal amount from Rs. 26797/8/ to Rs. 25532/10/ .
The High Court found (1) that the said vehicles were sold on February 5, 1952 while the appeal before the Revenue Tribunal was still pending, (2) that the said vehicles were sold at the instance of the police officer under section 523 on the footing that they were unclaimed property, (3) that such an assumption was wrong as the vehicles were lying with the authorities while the appeal was still pending and when the issue, whether the said vehicles were liable to confiscation, was not finally decided, (4) that the said vehicles could not be sold by auction because they were liable to be returned in the event of the Tribunal holding that the said seizure and confiscation were illegal and directing the vehicles to be returned to the owner.
The High Court hold (a) that the Junagadh Customs Act which applied to the instant case provided an appeal against an order of seizure and confiscation, (b) that there being a provision for appeal in the said Act there was a statutory duty on the State to see that the property which was seized was kept intact till the appeal was disposed of, (c) that there was an implied obligation to see that the said property was not tampered with during the pendency of the appeal in which the order of confiscation was under scrutiny, (d) that the breach of the said obligation gave a cause of action to the respondent, and (e) that 942 the cause of action on which the said suit was grounded was the respondent 's right to the return of the said property and that the relief claimed on that cause of action was the return of the said property or in the alternative the value thereof and not damages for any negligence either of the State Government or of any of its servants.
It is against this judgment and decree of the High Court that this appeal by special leave is directed.
It is clear that both the trial court and the High Court concurrently found that the said vehicles were seized by the customs authority, that between 1947 and October, 1951 when they were disposed off they were lying uncared for in an open space, that they were disposed of at the instance of the Police as unclaimed property, that when they were sold most of the valuable parts were missing and lastly that they were sold while the appeal against the order of seizure and confiscation was still pending.
Mr. Dhebar 's contention was that since they were seized by a ,competent officer the seizure was lawful and that the utmost that ,could be alleged in the circumstances was that one or the other servants of the State Government was guilty of negligence.
Fe ,contended that the State Government was not liable for any tor tious act of any of its servants.
Before we proceed to consider this contention it is necessary to examine some of the provisions of the said Act which both the parties conceded was the relevant law applicable to the present ,case.
Section 150 lays down various offences under the Act and the respective penalties therefor.
Clause (8) of section 150 provides that if any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from the Junagadli 'State contrary to such prohibition or restriction, or if any attempt is made so to import or export any such goods, or if any such goods are found in any package produced to any officer of Customs as containing no such goods etc., such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty as set out therein.
Section 160 provides that a thing liable to confiscation under this Act may be seized in 'any place by an officer of Customs or other person duly employed for the prevention of smuggling.
Section 163 provides that when a thing is seized the officer making such seizure shall on demand of the person in charge of the goods so seized give him a statement in writing of the reasons for such seizure.
Section 166 provides for adjudication of confiscation and penalties.
Section 172 providas for an appeal from a subordinate Customs officer to the Chief Customs authority and section 175 provides a revision by the Ruler of the Junagadh State.
The power of revision under section 175 includes the power to reverse or modify the decision or, order in the exercise of His Highness 's extraordinary revisional jurisdiction.
943 It would appear from these provisions that the seizure of the said vehicles was carried out with jurisdiction and the order of confiscation was also made, apart from the question as to its merits, by a competent officer with jurisdiction.
It is also possible to contend that as the said vehicles were sold pursuant to a judicial order no liability can be attached on the State Government for their disposal by public auction.
But between their seizure and the auction there was a duty implicit from the provisions of the Act to take reasonable care of the property seized.
This is so because .the order of confiscation was not final and was subject to an appeal and a revision before the Home Member and later on before the Revenue Tribunal after Junagadh merged in the State of Saurashtra in 1948 49.
The appellant State was aware that the order of seizure and confiscation was not final being subject to an appeal and was liable to be set aside either in appeal or in revision.
It was also aware that if the said order was set aside, the property would have to be returned to the owner thereof in the same state in which it was seized except as to normal depreciation.
In spite of this clear position, while the appeal was still pending before the Revenue Tribunal and without waiting for its disposal, it allowed its police authorities to have it disposed of as unclaimed property.
The State Government was fully aware, firstly, by reason of the pendency of the appeal and secondly because the application under section 523 expressly mentioned the person from whom the said vehicles were seized, that the vehicles were and could not be said to be unclaimed property.
In the circumstances, the State Government was during the pendency of the appeal under a statutory duty to take reasonable care of the said vehicles which on the said appeal being decided against it were liable to be returned to their owner.
The contention that the order of disposal was a judicial order or that the respondent could have filed a revision application against that order and have it set aside would be beside the point.
There being a statutory obligation under the Act to return the property once the order of seizure and confiscation was held to be wrong, the respondent could rely on that obligation and claim the return of the said vehicles.
On behalf of the respondent, the contention urged was that though the seizure might be lawful and under the authority of the Statute, the State Government was from the time that the said goods were seized until the decision of the appeal, in a position of a bailee and was, therefore, bound to take reasonable care of the said vehicles.
That no such reasonable care was taken and the vehicles remained totally uncared for is not in dispute.
Mr. Dhebar 's reply was that there was no bailment nor can such bailment be inferred as section 148 of the Contract Act requires that a bailment can arise only under a contract between the parties.
That contention is not sustainable.
Bailment is dealt with by the Contract Act only 944 in cases where it arises from a contract but it is not correct to say that there cannot be a bailment without an enforceable contract.
As stated in "Possession in the Common Law" by Pollock and Wright, p. 163, "Upon the whole, it is conceived that in general any person is to be considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an understanding with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person". 'Bailment is a relationship sui generis and unless it is sought to increase or diminish the burdens imposed upon the bailee by the very fact of the bailment, it is not necessary to incorporate it into the law of contract and to prove a consideration"(1).
There can, therefore, be bailment and the relationship of a bailee in respect of specific property without there being an enforceable contract.
Nor is consent indispensable for such a relationship to arise.
A finder of goods of another has been held to be a bailee in certain circumstances.
On the facts of the present case, the State Government no doubt seized the said vehicles pursuant to the power under the Customs Act.
But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed.
The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, 'the property could no longer be retained and had under the Act to be returned to the owner.
That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take.
Just as a finder of property has to return it when its owner is found and demands it, so the State Government was bound to return the said vehicles once it was found that the seizure and confiscation were not sustainable.
There being thus a legal obligation to preserve the property intact and also the obligation to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized, the position of the State Government until the order became final would be that of a bailee.
If that is the correct position once the Revenue Tribunal set aside the order of the Customs Officer and the Government became liable to return the goods the owner (1) "Law of constract "by Chesire and Fi foot,pp./73,74.
94 5 had the right either to demand the property seized or its value, if, in the meantime the State Government had precluded itself from returning the property either by its own act or that of its agents or servants.
This was precisely the cause of action on which the respondent 's suit was grounded.
The fact that an order for its disposal was passed by a Magistrate would not in an ,, way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it.
The order of disposal in any event was obtained on a false representation that the property was an unclaimed pro perty.
Even if the Government cannot be said to be in the position of a bailee, it was in any case bound to return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by any act of its agents and servants.
In these circumstances, it is difficult to apperciate how the contention that the State Government is not liable for any tortious act of its servants can possibly arise.
The decisions in State of Rajasthan vs Mst.
Vidh yawati(l) and Kasturilal Jain vs The State of U.P.(2) to which ,Mr.
Dhebar drew our attention have no relevance in view of the pleadings of the parties and the cause of action on which the respondent 's suit was based.
In our view, the High Court was right in conferming the decree passed by the trial court on the basis that there was an obligation on the State Government either to return the said vehicles or in the alternative to pay their value.
The appeal is dismissed with costs.
G.C. Appeal dismissed.
( 1) [1962] Suppl.
2 S.C.R. 989.

summary:
Two trucks and a station wagon belonging to the respondent were seized by the customs authorities of the State of Junagarh under the provisions of the Junagarh State Sea Customs Act of S.Y. 1998.
The Junagrah State was merged into the United States of Saurashtra and after further changes became part of the present Gujarat State.
The respondent 's appeal against the aforesaid seizure of his goods succeeded before the Revenue Tribunal which ordered the return of the said vehicles to the respondent.
When however he applied for the return of the vehicles he was informed that they had been disposed of under an order of a Magistrate under section 523 of the Code of Criminal Procedure, and that the sale proceeds had been paid to a creditor of the 'respondent under an attachment order.
The respondent thereupon filed a suit for the recovery of the value of the vehicles.
It appeared in the evidence that the vehicles were kept for several in an.
open place outside the police station at Veraval so that most of their parts were pilfered away and only the skeletons of the vehicles were left.
Finally on the report of the officer incharge of the aforesaid police station they were sold it an auction as unclaimed property after obtaining the order of a Magistrate.
The trial court on the above evidevice decreed the respondent 's suit and the High Court upheld the decree though partly reducing the amount.
The State appealed to this Court It wits contended on behalf of the appellant that the sale was under a judicial order and therefore there was no liability to pay; at the most one or the other officers of the Government could be held guilty of negligence.
It was further contended on behalf of the State that it could not be treated as a bailee because a bailment could arise only under a contract.
HELD : (i) The State Government no doubt seized the said vehicles pursuant to the power tinder the Customs Act.
But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed.
The order of the Customs Officer was not final as it was subject to appeal and if the authority found that there was no good ground for the exercise of that power the property Could no longer be retained and had under the Act to be returned to the owner.
Thus there was a clear obligation to return the vehicle to the owner if the appeal went his favour.
[944E] There was also an implied legal obligation to preserve tile property intact and to take reasonable care of it so is to enable it to be returned 93 9 in the same condition in which it was seized.
The position of the State Government until the order became final was therefore that of a bailee.
There can be bailment and the 'relationship of a bailor and bailee in respect of specific property without there being an enforceable contract.
Nor is consent indispensable for such a relationship to arise.
Even a finder of goods of another becomes a bailee in certain circumstances.
1.944A D; F H] The High Court was right in confirming the decree passed by the trial court on the basis that there was an obligation on the State Government either to return the said vehicles or in the alternative to pay their value.
[945 E] State of Rajasthan vs Mst.
Vidhyawati, [1962] Supp. 2 S.C.R. 989 and Kasturilal Jain vs State of U.P. ; , held inapplicable.


judgement:
Appeals Nos. 2253 and 2254 of 1966.
Appeals from the judgment and decree dated July 5, 1965 of the Calcutta High Court in Appeals from Original Decrees Nos. 490 and 489 of 1960 respectively.
Sarjoo Prasad and R. Ganapathy Iyer, for the appellant (in C. A. No. 2253 of 1966).
Devaprasad Chaudhury and Sukumar Ghove, for the appellant (In C. A. No. 2254 of 1966).
A.K. Sen, section K. Gambhir and D. N. Gupta, for the respon dents (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
The respondents are limited companies having their head offices in Calcutta.
On May 15, 1953, the two Companies jointly purchased the premises known as King 's Court ' at No. 46B Chowringhee Road, Calcutta, for the purpose of providing residential accommodation for their staff.
They instituted a suit against one B. M. Lall, since deceased, predecessor of the appellants in C. A. No. 2253/66 for recovery of possession of flat No. 8 in the aforesaid premises in his occupation as a tenant, and another suit against the appellant in C. A. No. 2254/66 for recovery of possession of flat No. 9 in his occupation as a tenant, on the ground that they reasonably required the flats for the occupation of their staff.
By Sec.
13(1) of the West Bengal Premises Tenancy Act, 1956, (West Bengal Act XII of 1956), the tenants are protected from eviction except on one or more of the grounds specified in the sub section.
The grounds mentioned in clause (f) of section 13(1) are: "Where the premises are reasonably required by the landlord either for purposes of building or re building or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held;". .
The respondents claim that they reasonably require the flats for their own occupation.
The trial court dismissed the suits.
From these decrees, the respondents filed appeals in the High Court at Calcutta.
The High Court set aside the decrees passed by the trial court and decreed the suits.
The present appeals have been filed under certificates granted by the High Court.
25 The High Court held that (1) a limited company can be a landlord within the meaning of section 13(1)(f) and can reasonably require the premises for its own occupation, and (2) where there are several landlords, the requirement of the premises by the landlords for the occupation of one or more of them is sufficient to bring the case within Sec.
13(1)(f).
These findings are not challenged in this Court.
Before us it is also conceded by all the appearing parties that the respondents are entitled to a decree for recovery of possession of the two flats under sec.
13(1)(f), if they establish that they reasonably require the flats for the occupation of respondent No. 2, Guest Keen and Williams Ltd. only.
The two courts concurrently found that respondent No. 2 reasonably requires the flats for the occupation of its staff.
The Company is under an obligation to provide free residential accommodation for its officers in properties either rented or owned by it.
In view of the acute scarcity of accommodation in the city, it is not possible to find other convenient flats for officers who were transferred to the city from other stations.
Suitable provision for the accommodation of officers visiting Calcutta on tour is a matter of necessity.
The sole question is whether the occupation by its staff officers would be the company 's own occupation.
The point of dispute on which the two courts differed is whether the officer to whom the flat would be allotted would occupy it as a tenant or as a licensee.
It is common case before us that if he is a licensee his occu pation would be on behalf of the company and its requirement would be for its own occupation.
On the other hand, if he is a tenant his occupation would be on his own account and the company 's requirement would not be for its own occupation.
It appears that the officers provided with accommodation by the Company are required to execute agreements in a standard form.
The terms and conditions of the agreement are as follows: 1 .
The Licensee whilst in the employment of the Company at Calcutta and for the sole purpose of the Licensee being more conveniently situated in such employment is hereby permitted by the Company to occupy as a Licensee during the term of his employment at Calcutta Flat No. 25, situated in the Company 's property known as Kings Court, Calcutta, or such other flat as may be allotted to the Licensee at the company 's discretion (hereinafter referred to as "the said permises") subject to the terms and conditions hereinafter contained.
In the event of the Company deciding to levy License fees and the Company reserves the right to do so without prior notice, the Licensee shall pay to the Company each month such License fees which may be varied by the 'Company from time to time at its discretion and the Company shall be entitled to deduct such License fees from the emoluments or to become due to the Licensee from Company.
The occupation of the said premises by the Licensee is a condition of his employment at Calcutta with the company and such right of occupation shall forthwith cease upon his employment being terminated by the company or on his leaving such employment or on his transfer away from Calcutta or on his death whichever is earlier.
Notice given by the Company to the Licensee of termination of employment or of transfer away from Calcutta shall be deemed to be sufficient notice of revocation of the licence.
The Company shall be entitled to determine forthwith the licence hereby granted if the licensee shall fail to comply with any of the terms and conditions herein contained and on his part to be observed and non compliance with the terms and conditions herein contained may be deemed by the company to be misconduct.
These presents shall not or shall not be deemed to create any relationship of landlord and tenant between the company and the licensee in respect of the said premises.
The company shall pay all present and future revenue and municipal taxes payable in respect of the said premises and keep the said premises in repair during the continuance of these presents.
Conditions to be complied with by the licensee: 1.
The Licensee shall pay the cost of electricity and gas consumed within the said premises and the company may at its discretion deduct such charges from the emoluments due or to become due to the Licensee from the company.
The Licensee shall not cause or permit to be cause any disturbance or nuisance in or in the vicinity of the said premises.
No structure or alteration temporary or permanent, other than common ornaments shall be erected, fixed or carried out by the Licensee in the said premises or garden without prior written permission from the company.
The Licensee shall not do or permit to be done any act or thing which causes damage or is liable to cause damage to the said premises.
The cost of rectification of such damage will be recoverable in accordance with condition (1).
Alterations of or extensions to the installed electrical circuit are strictly prohibited.
No notice advertisement or placard other than the Licensee 's own name, which may be fixed to the main door of the said premises, shall be fixed or permitted to be fixed to any portion of the said premises.
The said premises shall be used entirely as a dwelling place and no business or trade shall be carried out on the said premises or any part thereof without prior written permission from the company.
The Licensee will not permit any persons other than his own personal servants to occupy the servants ' quarters allotted to him by the company and will not permit the garage allotted to him by the company to be used for residential purpose.
The Licensee shall not take in any paying guest without prior written permission from the company and such permission shall be deemed to have been withdrawn when the paying guest ceases to reside.
The Licensee shall not let or part with possession of the whole or any part of the said premises to any person, firm or company.
During periods when the Licensee is absent from Calcutta the Company may assign the premises to any other employee or suitable person at its sole discretion.
The question is whether the occupier under this agreement is a tenant or a licensee.
The distinction between a lease and a license is well known.
105 of the Transfer of Property Act defines a lease.
52 of the Indian Easements Act defines a license.
A lease. is the transfer of a right to enjoy the premises; whereas a license is a privilege to do something on the premises which otherwise would be unlawful.
If the agreement is in writ ing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licen see.
The transaction is a lease, if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land.
The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive.
The test of exclusive possession is not decisive, see Errington vs Errington and Woods,(1) Associated Hotels of India Ltd. vs R. N. Kapoor,(2) though it is a very important indication in favour of tenancy.
See Addiscombe Garden Estates Ltd. and Anr.
vs Crabbe and Ors.(3).
A servant in occupation of premises belonging to his master may be a tenant or a licensee, see Halsbury 's Laws of England, Third Edition, Vol.
23, article 990.
p. 411.
A service occupation is a particular kind of license whereby a servant is required to live in the premises for the better performance of his duties.
Formerly, the occupation of the servant was regarded as a tenancy unless it was a service occu (1)[1952] 1 K.B. 290, 298.
(2) [1260] 368, 381 5.
(3) ,525.
28 pation, see Nippon Menkwa Kalmshiki vs F. Portlock(1).
Now it is settled law that a servant may be a licensee though he may not be in service occupation.
In Torbett vs Faulkner(2) Denning, L. J. said: "A service occupation is, in truth, only one form of licence.
It is a particular kind of licence whereby a servant is required to live in the house in order the better to do his work.
But it is now settled that there are other kinds of licence which a servant may have.
A servant may in some circumstances be a. licensee even though he is not required to live in the house, but is only permitted to do so because of its convenience for his work see Ford vs Langford 1(1949) 65 The Times L.R. 1381, per Lord Justice Asquith, and Webb, Ltd. vs Webb (unreported, October 24, 1951) and even though he pays the rates, Gorham Contractors, Ltd. vs Field (unreported, March 26, 1952), and even though he has exclusive possession, Cobb vs Lane (1952) 1 The Times L.R. 1037)".
The Lord Justice then continued: "If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quan tified in money; but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a, rent, then he is a tenant, and none the less a tenant because he is also a servant.
The distinction depends on the truth of the relationship and not on the label which the parties choose to put upon it: see Facchini vs Bryson (1952 ) The Times L.R. 1386).
" The last observation covers the present case.
Under the standard form of agreement of respondent No. 2, the occupation of the officer ceases not only on the termination of his employment but also on his transfer from Calcutta and on his death.
The company is at liberty to allot any other flat to the officer.
During the absence of the servant from Calcutta, the company is at liberty to assign the premises to any other employee or other person.
The accommodation is free, but the Company reserves the right to levy license fees.
All the terms of the agreement are consistent with the expressed intention that the officer is permitted to occupy the flat as a licensee and nothing in the agreement shall be deemed to create the relationship of landlord and tenant.
The agreement on its true construction read in the light of the surrounding circumstances operates as a license and not as a tenancy.
It creates no interest in the land.
It gives only a personal privilege or license (1)A.I.R. 1922 Botm.
(2) [1952]2 T.L.R. 659,660, 29 of the servant to occupy the premises for the greater convenience of his work.
The High Court rightly held that the respondents reasonably require the flats for respondent No. 2 's own occupation through officers holding the flats on its behalf as licensee.
If so, it is conceded that it is not necessary for the respondents to establish the reasonable requirement by respondent No. 1 also for its own Occupation.
The High Court decided this issue also in favour of the respondents.
As the decision on this issue is not necessary for the disposal of this appeal, we express no opinion on it.
The High Court rightly decreed the suits.
In the result, the appeals are dismissed.
There will be no order is to costs.
R.K.P.S. Appeals dismissed.

summary:
The respondent limited companies purchased certain premises in Calcutta for the purpose of providing residential accommodation for their staff.
They instituted suits against the appellants for the recovery of possession of two flats on the ground that as these flats were required for housing their officers, they were reasonably required for the occupation of the respondents within the meaning of section 13(1) (f) of the West Bengal Premises Tenancy Act, 1956.
The Trial Court dismissed the suits but the High Court allowed an appeal and held that a limited company can be a landlord within the meaning of section 13(1) (f) and can reasonably require the premises for its own occupation; and that where there are several landlords, the requirement of the premises by the landlords for the occupation of one or more of them is sufficient to bring the case within section 13(1) (f).
In the appeal before the Supreme Court the only question for determination was whether on the construction of the terms of an agreement which was normally signed between each of the respondents and any officer who was allotted a flat, the officer occupied the flat as a tenant or a licensee, and therefore whether the officer 's occupa tion would be the company 's own occupation within the meaning of clause (f).
Held:Dismissing the appeal: The High Court nightly held that the respondent reasonably required the flats for the second respondent company 's own occupation through officers holding flats on its behalf as licensees.
[29B] Under the standard form of agreement, the occupation of the officer ceased on the termination of his employment, upon his death, or on his transfer and the company was at liberty to allot him any other flat or to assign the premises to any other employee or other person during his absence.
In view of these and its other terms the agreement operated as a license and not as a tenancy.
It created no interest in the land and gave only a personal privilege or license to the servant to occupy the premises for the greater convenience of his work.
[28F H] Under section 105 of the Transfer of Property Act, a lease is the transfer of a right to enjoy the premises whereas under section 52 of the Indian Easements Act a license is a privilege to do something on the premises which otherwise would be unlawful.
The transaction is a lease if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land.
[27E F] Errington vs Errington and Woods, ; , 298: Associated Hotels of India Ltd. vs R. N. Kapoor. ; ; 3815.
Addiscombe Garden Estates Ltd. and Anr, V. Crabe and Ors. , 525; referred to.
24 A service occupation is a particular kind of license whereby a servant is required to live in the premises for the better performance of his duties.
Now it is also settled law that a servant may be a licensee though he may not be in service occupation.
[27H] Nippon Menkwa Kalmshiki vs F. Portlock, A.1.R. ; and Torbett vs Faulkner, , 560; referred to.