judgement:
Appeals Nos. 166 and 167 of 1962.
Appeals from the judgment and decrees dated October 25, 1957 of the Allahabad High Court in Special Appeals Nos. 140 and 139 of 1957.
J.B. Goyal, for the appellants (in C.A.No. 166 of 62).
1 C. B. Agarwala and P. C. Agarwala, for the appellants (in C.A. No. 167 of 62).
428 K. section Hajela and C. P. Lal, for respondent No. I (in both the appeals).
C. P. Lal, for respondent No. 2 (in both the appeals).
April 26.
The judgment of the Court was delivered by WANCHOO J.
These two appeals on certificates granted by the Allahabad High Court raise common questions and will be dealt with together.
It will be enough if we mention the facts in appeal No. 167, for the facts in the other appeal are exactly the same, except that the lands in dispute are different in the two cases, though lying in the same area in the city of Kanpur.
Deoki Nandan, appellant in appeal No. 167, is the lessee of two plots in Anwarganj, Bans Mandi, Kanpur, and his lease is for a period of 99 years from 1943.
On these plots there exists a mill known as Om Cotton Ginning and Oil Mill.
Besides the mill there are pacca godowns also on the plots and two thirds of the area is under buildings while onethird is open land paved with bricks.
No part of the land is waste or arable.
It appears that in February 1932 the Government of U. P. sanctioned by notification a scheme known as Pechbagh Dalelpurwa Scheme No. XX (hereinafter referred to as scheme No. XX) of the Improvement Trust Kanpur.
It may be mentioned that the Improvement Trust Kanpur has now been replaced by the Development Board Kanpur (hereinafter referred to as the Board) by the Kanpur Urban Area Development Act, No. VI of 1945, (hereinafter referred to as the Kanpur Act), which repealed the U. P. Town Improvement Act, No. III of 1920, insofar as it applied to Kanpur.
It is not clear what 429 happened to scheme No. XX after 1932; but it does appear that it was not fully carried out.
It appears that in 1955 a scheme known as subsidized industrial housing scheme was sponsored by Housing Department of the U. P. Government.
This scheme was to be put in force in four phases.
and we are concerned in the present appeal with the fourth phase.
For that phase the Government of India had sanctioned over rupees two crores and it was decided to build 6973 tenements of which 1368 were to be in an Ahata on the Hamirpur road.
We are concerned with this part of the scheme, for the lands in dispute are in this locality.
The decision in this connection was taken by the Government of U. P. in May 1955.
Thereafter on January 6, 1956, a notification was issued under section 4 of the Land Acquisition Act, (No. I of 1894) by the Governor of U. P. to the effect that the two plots in dispute were required for the construction of tenements in the fourth phase of the subsidized industrial housing scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Board.
This was followed by a notification under section 6 of the Land Acquisition Act on January 31, 1956.
That notification further said that the case being one of urgency the Governor was pleased under sub sections
(1) and (I A) of section 17 of the Land Acquisition Act to direct that the collector of Kanpur, though no award under section 11, has been made, might on the expiration of the notice mentioned in section 9 (1) take possession of lands, buildings and structures forming part of the land mentioned in the schedule for public purposes.
Then followed a notice under section 9 by the Collector on February 10, 1956, which said that possession would be taken over 15 days after the issue of the notice i. e. on February 25, 1956.
On receipt of this notice, Deoki Nandan appellant filed his objections before the Collector on February 21, 1956, 430 Two days later, on February 23, 1956, he filed the writ petition in the High Court out of which the present appeal has arisen.
In this writ petition two main points were urged on behalf of the appellant.
It was first urged that as the acquisition was for the purposes of scheme No. XX of the Board, action had to be taken in accordance with section 114 of the Kanpur Act and the schedule thereto and as no action had been so taken, the proceedings for acquisition were bad.
In the second place, it was urged that it was not open to the Governor to issue the notification under section 6 of the Land Acquisition Act without first taking action under section 5 A thereof.
It is not in dispute that no action was taken under section 5 A and no report was made as required therein.
The writ petition was dismissed by the learned Single judge who heard it.
On the first question he held that this was not a case to which the Kanpur Act applied.
On the second question, he held that section 17 (4) applied and therefore it was not necessary to take proceedings to comply with section 5 A before issuing a notification under section 6.
Then followed an appeal which was heard by a Division Bench of the High Court.
The appeal court upheld the view taken by the learned Single Judge and dismissed the appeal.
However, the appeal court granted a certificate as prayed for, and that is how the matter has come up before us.
The same two questions which were agitated in the High Court have been raised before us.
In the first place, it is urged that as the acquisition was for scheme No. XX of the Board, action should have been taken under the Kanpur Act and as this was Dot done the entire proceedings are bad including the issue of the notifications under section 4 and section 6.
In the second place, it is urged that section 17 (4) could not 431 apply in the present case and no notification under section 6 could be issued unless section 5 A had been complied with.
As no such compliance was admittedly made, the notification under section 6 in any case is bad, even if the notification under section 4 is good.
Turning now to the first point, the main reliance of the appellant is on section 114 of ' the Kanpur Act, which is in these terms : "Modification of the Land Acquisition Act, 1894 For the purpose of the acquisition of land for the Board under the land Acquisition Act, 1894 (a) the said Act shall be subject to the modification specified in the Schedule to this Act; (b) the award of the Tribunal shall be deemed to be the award of the court under the Land Acquisition Act, 1894.
" We may also refer to section 108 which provides for constitution of the tribunal and section 109 which lays down that the tribunal shall perform the functions of the court with reference to the acquisition of land for the Board under the Land Acquisition Act, 1894.
Further, it is necessary to refer to section 71 (1) also which provides that "the Board may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act".
The argument on behalf of the appellants is that where land is acquired for the purposes of the Board action has to be taken under ch.
VII which provides for various kinds of development schemes for the Board and the procedure for making such schemes.
After this procedure laid down in ch.
VII is gone through, (and it is not in dispute that no s c procedure was gone through in the present case insofar as scheme No. XX is concerned), section 114 comes 432 into play and acquisition has to take place under the modified provisions of the Land Acquisition Act even where the Government is acquiring the land.
Stress in this connection is laid on the words "acquisition of land for the Board" in section 114, and it is said that whenever there is acquisition of land for the Board, action can only be taken, even though it is the Government which is acquiring the land, under the modified provisions of the Land Acquisition Act ,contained in the Kanpur Act.
We are of opinion that this argument is fallacious.
If one looks at the scheme of the Kanpur Act, one finds that ch.
VII provides for various kinds of development schemes and the procedure for finalising them.
After the scheme is finalised under ch.
VII power is given to the Board to purchase the land required for the scheme or take it on lease under section 70.
Then section 71 provides in the alternative that the Board may with the previous sanction of the State Government acquire land under the provisions of the Land Acquisition Act as modified by the provisions of the Kanpur Act.
It is only when the Board proceeds to acquire land by virtue of its powers under section 71 that section 114 comes into play and the proceedings for acquisition have to take place under the Land Acquisition Act as modified by section 114 read with the schedule.
It is true that section 114 speaks of acquisition of land for the Board, and the argument is that when section 114 speaks of acquisition of land for the Board, it applies to acquisition of land for the Board by the Government and not to acquisition by the Board, which is provided by section 71 (1).
This interpretation of ' section 114 is in our opinion incorrect.
Section 71 certainly provides for acquisition of land by the Board when it says that the Board may acquire land under the provisions of the Land Acquisition Act as modified by the Kanpur Act; but that ' acquisition is also by that very section for carrying out the 433 purposes of the Act i.e. for the Board.
Therefore when section 71 authorises the Board to acquire land under the Land Acquisition Act as modified by the Kanpur Act, the acquisition is for the Board.
Section 71 further speaks of the modification of the provisions of the Land Acquisition Act.
This modification is not provided in section 71 itself.
In order to find out the modification we have to go to section 114.
Therefore, s.114 merely serves the purpose of indicating the modification which has been mentioned in section 71.
There is no reason to hold, because the words "acquisition of land for the Board" appear in s.114, that this acquisition is by the Government for the Board.
The scheme of the Kanpur Act clearly shows that the Board frames a scheme and then decides to acquire the land for itself tinder section 71 with the previous sanction of the State Government.
If it so decides, section 114 applies to such an acquisition by the Board for itself with the necessary modification in the Land Acquisition Act.
We may in this connection refer to section 109, which describes the duties of the tribunal.
Now there is no doubt that where the Board is acquiring land under" section 71 of the Kanpur Act, it is the tribunal which takes the place of the court in the Land Acquisition Act.
But section 109 also uses the same words, namely acquisition of land for the Board.
As the acquisition by the Board is also for the Board, there can be no doubt that the scheme of the Kanpur Act is that the Board first proceeds under ch.
VII, then decides to acquire land under section 71.
and if it so decides s.114 comes into play with the modifications in the Land Acquisition Act mentioned in the schedule.
Two modifications in the schedule are the replacement of the notification under s.4 by the notification under section 53 in ch.
VII and the replacement of notification under section 6 by the notification under s.60 also in chap.
It is obvious that ch.
VII, section '11, s.1 14 and the other provisions in ch.
XI dealing with modifications and the modifications in the schedule are all part of one scheme, where the Board is acquiring 434 land itself for its own purpose with the previous sanction of Government; but where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purpose though that purpose may be the purpose of the Board, the Kanpur Act has no application at all.
, and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone.
The contention therefore on behalf of the appellants that the Kanpur Act has not been complied with and therefore the proceedings for acquisition of land are bad has no force and must be rejected.
We now come to the second point raised on behalf of the appellants.
For that purpose we may briefly refer to the scheme of the Land Acquisition Act, The proceedings for acquisition start with a preliminary notification under s.4.
By that notification the Government notifies that land in any locality is needed or is likely to be needed for any public purpose.
On that notification certain consequences follow and authority is conferred on an officer 'either generally or specially by Government and on his servants and workmen to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub soil, to do all other acts necessary to ascertain whether the land is adapted for such purpose, to set out the boundaries of the land proposed, to be taken, and so on.
Then section 5 A provides that any person interested in any land which has been notified in s.4, may within thirty days of the issue of the notification object to the acquisition of the land .or of any land in the locality as the case maybe.
Every such objection shall be made to.
the Collector in writing and the Collector has to give the objector an opportunity of being heard.
After hearing all objections and after making further inquiry if any, as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report 435 containing his recommendations on the objections.
the decision of the Government on the objections is final.
Then comes the notification under s.6, which provides that when the appropriate government is satisfied after considering the report, if any, made under section 5 A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette.
After such a declaration has been made under s.6, the Co llector has to take order for acquisition of land.
It is marked out, measured and planned under section 8 if necessary and notice is given under section 9 to persons interested.
The Collector then holds inquiry under section II and makes an award.
After the award is made the Collector has got the power to take possession of the land under section 16 and the land then vests absolutely in the Government free from all encumbrances.
It will be clear from this scheme that compliance with the provisions of section 5 A is necessary before a notification can be issued under section 6.
As soon as the preliminary notification is issued under s.4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient notice to those interested to object.
If objections are made the Collector will consider those objections and make his recommendation thereon in his report to Government.
If no objections are made the Collector will report that no objection has been made and the Government then proceeds to issue a notification under s.6.
In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are no objections filed in pursuance of the notification under section 4 and it is thereafter that the Government is empowered under section 6 to issue a notification.
This, as We have said,is the usual procedure to be followed 436 before the notification under s.6 is issued: To this usual procedure there is however an exception under s.17, and that is why in section 6 we find the words "if any" in the clause after considering the report , if any, made under section 5A".
When action is taken under section 17 (4), it is not necessary to follow the procedure in section 5 A and a notification under s.6 can be issued without a report from the Collector under section 5 A.
In the present appeals we are concerned with sections 17 (1) and 17 (4), which we now read: "17 (1).
In cases of urgency, whenever the appropriate Government so directs, the Collec tor, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), take possession of any waste or arable land needed for public purposes or for a company, such land shall thereupon vest absolutely in the Government, free from all encumbrances." "17 (4).
In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub section (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, subsection (1).
" It will be seen that section 17 (1) gives power to the Government to direct the Collector, though no award has been made under section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances.
If action is taken under section 17 (1), taking possession and vesting which 437 are provided in section 16 after the award under section 11 are accelerated and can take place fifteen days after the publication of the notice under section 9.
Then comes section 17 (4) which provides that in case of any land to which the provisions of sub section
(1) are applicable, the Government may direct that the provisions of section 5 A shall not apply and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4 (1).
It will be seen that it is not necessary even where the Government makes a direction under section 17 (1) that it should also make a direction under section 17 (4).
If the Government makes a direction only under section 17 (1) the procedure under section 5 A would still have to be followed before a notification under section 6 is issued, though after that procedure has been followed and a notification under section 6 is issued the Collector gets the power to take possession of the land after the notice under section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances.
It is only when the Government also makes a declaration under section 17 (4) that it becomes unnecessary to take action under section 5 A and make a report thereunder.
It may be that generally where an order is made under section 17 (1), an order under section 17 (4) is also passed; but in law it is not necessary that this should be so.
It will also be seen that under the Land Acquisition Act an order under section 17 (1) or section 17 (4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.
This brings us to section 17 (I A) introduced in section 17 of the Land Acquisition Act by the Land Acquisition (U. P. Amendment) Act, (No. XXII of 1954).
Section 6 of that Act is in these terms : "After sub section (1) of section 17 of the Principal Act (i. a. Land Acquisition Act) the 438 following shall be inserted as a new sub section (I A): ,(I A).
The power to take possession under sub section (1) may also be exercised in the case of other than waste or arable land, where the land is acquired for or in connection with sanitary improvements of any kind or planned development.
" It is not in dispute before us that the land in the present case was required for planned development.
Therefore subsection (1 A) as inserted by the U. P. Act into the Land Acquisition Act applies.
The contention on behalf of the appellants however is that sub 'section (1 A) gives merely power to take possession of land other than waste or arable land where the land is acquired for or in connection with sani tary improvements of any kind or planned development.
It is further urged that sub section
(1) is mentioned in sub section
(I A) merely to import the circumstances in which the power to take possession may be exercised with respect to land other than waste or arable and the time when such power may be exercised thearguement further is that section 17 (4) was not amended by the U.P. Act XXII by including the new sub s.(1.A) also in that sub section.
Sub section (4) still stands as it was; therefore it still applies to waste and arable land only.
There is force in this argument.
There has been no change by the U. P. Act in sub section
(1) and therefore when sub section
(4) speaks of any land to which sub section
(1) applies it still refers only to waste or arable land and no other.
It is true that by sub section (I A) as introduced by U. P. Act in section 17, power has been given to take possession in case of land other than the waste or arable; but this does not necessarily mean that sub section
(4) will also apply to a case of )and other than waste or arable simply because power has been 439 given by sub section
(I A) to take possession of land other than waste or arable.
It seems to us that when sub section
(1) is mentioned in sub section
(I A) as introduced by the U. P. Act it only means that the power can be exercised to take possession of land other than waste or arable in the same circumstances and at the same time as it could be exercised with respect to arable or waste land as provided in sub section
(1), and nothing more Sub section (I A) as introduced by the U. P. Act therefore has the effect only of accelerating the taking of possession which normally can take place after the award has been made under section 11 in the case of land other than waste or arable in the circumstances and under the conditions mentioned in sub section
But sub section
(I A) does not amend sub section
(1) so as to include within that sub section land other than waste or arable.
Therefore when sub section
(4) was not amended by the U. P. legislature to include sub section
(1 A) as introduced by it can apply only to waste or arable land mentioned in sub section
(1), which also remained unamended.
We have already pointed out that it is not necessary in law that when an order is passed under section 17 (1), an order under section 17 (4) must also be passed.
similarly if an order is passed under sub section (1 A) it does not necessarily follow that an order must bepassed under section 17 (4).
Sections 17 (1) and 17 (4) are independent of each other in the sense that an order under the former does not necessarily require an order under the latter.
Similarly section 17 (I A) must be independent of section 17 (4) and an order under section 17 (I A) would not necessarily mean that an order under section 17 (4) must be passed.
In these circumstances it seems to us that if the legislature intended that provisions of sub section
(4) should also apply to a case falling under sub section
(I A), it has failed to carry out that intention.
Sub section (I A) has been added as an independent sub section and no amendment has been made either in sub section
(1) or sub section
(4); nor has any separate provision been made 440 for applying sub section
(4) to a case falling under sub section
(I A) and so subs.
(4) cannot be applied to sub section
(I A).
The right to file objections under section 5 A is a substantial right when a person 's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side wind because sub section
(I A) mentions sub section
As we have already pointed out sub section
(1) has been mentioned in sub section (I A) merely to indicate the circumstances and the conditions under which possession can be taken.
The legislature has mentioned sub section
(1) in sub section
(I A) as a measure of economy; otherwise sub section
(I A) would have read as follows : "In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), take possession of any land other than waste or arable land for public purposes where the land is acquired for or in connection with sanitary improvements of any kind or planned development.
" Now if there had been Do economy of words and sub section
(I A) had read as we have indicated above, it could Dot have been possible to argue that sub section
(4) of section 17 also covered cases of section 17 (1 A).
Therefore, simply because for the sake of economy of words the legislature has used the words which it did in sub section
(I A), it cannot be said that it was either amending sub section
(1) or sub section
In the absence of such amendment either in sub section
(1) or sub section
(4) and in the absence of any specific provision being introduced in section 17 by which sub section
(4) was also to apply to the new sub section
(I A), it cannot be said that power was conferred on the State Government to apply sub section
(4) also to a case falling under sub section
(1 A), 441 simply by the introduction of sub section
(I A) in the form in which it was introduced in section 17.
We are therefore of opinion that it was not open to the State Government to say in the notification under section 4 that proceedings under section 5 A shall not take place.
This part of the notification under section 4 is therefore beyond the powers of the State Government.
In consequence the notification under section 6 also as it was issued without taking action under section 5 A must fall.
The appeals must therefore be allowed and the notification under section 6 and that part of the notification under section 4, which says that the Governor was pleased to direct that under sub section (4) of section 17, the provisions of section 5 A shall not apply, are bad and are hereby set aside.
Rest of the notification under section 4 will stand and it will be open to the Government if it so chooses to proceed with the acquisition after action is taken under section 5 A and thereafter to issue a noti fication under section 6 of the Land Acquisition Act.
In the circumstances we feel that the appellants should be given an opportunity under section 5 A now, though the period for making objections provided in that section expired long ago in view of the misunderstanding of the law on the part of the Government by treating the objections made before the Collector after the issue of the notices under section 9 as objections under section 5 A.
The appellants will get their costs of this Court from the respondents; one set of hearing fee.
Appeals allowed.

dataset_name: IN-Abs

summary:
In these two appeals the same questions of law arise and the facts in C.A. No. 166 of 1962 are similar to those in C.A. 167 of 1962 which are stated below.
The appellant in C.A. No. 167 of 1962 is the owner of certain lands situated in the city of Kanpur.
The land is occupied by a Mill and godowns and no part of the land is waste land or arable land.
In 1932 the U. P. Government sanctioned by a notification a Scheme (Scheme No. XX) of the improvement Trust, Kanpur.
This Trust has been replaced by the Development Board, Kanpur, by reason of the Kanpur Urban Area Development Act, 1945.
426 In 1955 the Housing Department of the Government of U.P, sponsored a scheme for building industrial tenements.
Part of the scheme concerned the locality in which the land in dispute is situated.
In 1956 a notification was issued under section 4 of the Land Acquisition Act, 1894, by the Governor of U.P. to the effect that the plots in dispute were required for the construction of tenements tinder the subsidized industrial.housing scheme of the U.P. Government as well as for general improvement and street scheme No. XX of the Board.
This was followed by a notification under section 6 of the Land Acquisition Act stating that the case being one of urgency the Governor was pleased under sub sections
(1) and (I A) of section 17 of that Act to direct that the Collector of Kanpur, though no award under section II had been given, might on the expiration of the notice mentioned vs 9(1) take possession of land mentioned in the schedule.
Subsequently a notice under section 9 was issued which stated that possession of the land will be taken within 15 days.
The appellant thereupon filed a writ petition under article 226 of the Constitution in the High Court.
Two main points were raised in the petition.
Firstly, it was contended that as the acquisition was for the purpose of Scheme No. XX of the Board action had to be taken in accordance with section 114 of the Kanpur Act and the schedule thereto and as no action had been so taken the proceedings for acquisition were bad.
In the second place, it was urged that it was not open to the Governor to issue the notification under section 6 of the Land Acquisition Act without first taking action under section 5A thereof.
The High Court rejected both these contentions and in the result dismissed the writ petition.
The present appeal was filed with a certificate issued by the High Court.
In the appeal before this Court the same questions which were agitated before the High Court were raised.
Held it is only when the Board proceeds to acquire land by virtue of its powers under section 71 that section 114 comes into play and the proceedings for acquisition have to take place under the Land Acquisition Act as modified by section 114 read with the schedule.
But where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purposes though that purpose may be the purpose of the Board, the Kanpur Act has no application at all and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone.
From the scheme of the Act it is clear that compliance with the provisions of s.5 A is necessary before a notification 427 can be issued under section 6.
Even where the Government makes a direction under section 17(1) it is not necessary that it should also make a direction under section 17(4).
If the Government makes a direction only under section 17(1) the procedure under section 5 A would stil have to be followed before a notification under section 6 is issued.
It is only when the Government also makes a declaration under section 17(4) that it becomes necessary to take action under section 5 A and make a report thereunder.
Under the Land Acquisition Act an order under section 17(1) or section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable land on which buildings stand.
just as section 17(1) and section 17(4) are independent of each other, section 17(1.A) and section 17(4) are independent of each other and an order under section 17 (I A) would not necessarily mean that an order under section 17(4) must be passed.
The right to file objections under section 5 A is a substantial right when a person 's property is being threatened with acquisition and that right cannot be taken away as if by a side wind because section 17(1 A) mentions section 17(1).
Section 17(1 A) mentions section 17(1) merely to indicate the circumstances and the conditions under which possession can be taken.
It was not open to the State Government to say in the notification under section 4 that proceedings under section 5 A will not take place.
This part of the notification under section 4 is beyond the powers of the State Government and in consequence the notification under section 6 also, as it was issued without taking action under section 5 A, must fail.


judgement:
Appeal No. 197 of 1961.
Appeal by special leave from the judgments and decrees dated January 29, 30, 1957 of the Calcutta High Court in Appeals from Original Orders Nos. 122 and 156 of 1956 respectively.
413 G.S. Pathak, A.N. Sinha and P.K. Mukherjee, for the appellants.
A.V Vismanatha Sastri, B. R.L. lyengar and section N. mukherjee for the respondents.
April 26.
The judgment of the Court was delivered by AYYANGAR J.
This is an appeal by special leave against the judgment of the High Court of Calcutta affirming the decision of a Single judge of that Court refusing to set aside the award of an arbitrator dated May 27, 1955.
One Hemendra Nath Sen, father of the second appellant, died intestate in 1929 leaving his widow Premtarangini Debi and 8 sons.
Respondents 1,2,3, 4, 6 and 7 are the brothers of the 2nd appellant.
The 5th respondent is the widow of a deceased brother who died in 1933 while the 8th respondent is the wife of the 2nd respondent.
The 1st appellant is the wife of the 2nd appellant.
The parties were governed by the Dayabhaga School of Hindu law.
Hemendra Nath left considerable properties and on his death disputes arose between his several heirs but an agreement dated January 31, 1933 these were settled By then one of the sons the husband of the 5th respondent had died leaving a widow (the 5th respondent) and these viz., the widow, the 7 sons and the widowed daughter in law entered into this agreement by which the properties left by the deceased were partitioned among them Broadly stated, the agreement specified the shares of the 9 parties thereto as equal i.e., one ninth each, with however the two widows being allotted their respective shares for their life as for their maintenance.
There was also a provision that in regard to a glass factory the 2nd appellant was to have a 5 annas share, the rest of the member dividing the balance of the II annas 414 (presumably because the 1st appellant 's money went in for the initial capital for starting the concern) till certain specified contingencies occurred.
Fresh disputes however, arose between the parties and by a formal agreement dated May 11, 1953, they set out those disputes between themselves and agreed to refer the same to the sole aribitration of Dr. Radha Binode Pal an eminent lawyer and jurist of Calcutta.
As the terms of reference have some relevance to the points urged before us in the appeal it would be convenient to set them out.
It read : "We the I undersigned hereby agree, First to refer all disputes arising out of or in connection with or in relation to the New Indian Glass Works Ltd., including the management thereof and the acts of any of the parties in respect of or in relation to or arising out of the said Company, and for future management thereof including the dispute regarding the alleged lease in favour of R. N. Sen (7th respondent) and of the alleged,prior leases in favour of A. N. Sen (2nd appellant) and F. N. Sen (6th respondent) of the said Company 's business, the legality and validity thereof and Secondly all disputes whatsoever in relation to the joint properties as per Schedule hereunder written or otherwise which were or are owned by the parties or some of them, to the sole Arbitration of Dr. Radha Binode Pal, Advocate.
The said Arbitrator is to enquire, ascertain and partition the said joint properties.
We agree that the, said Dr. Radha Binode Pal would have summary powers and the award which would be made by him would be final and conclusive and binding upon the parties.
" This was followed by a Schedule in which the joint properties were specified and to this document all the family members affixed their signatures.
415 Before, however, the reference was submitted to the arbitrator, the respondents made an application to the High Court of Calcutta on its original side on July 12., 1954 under section 20 of the Indian for an order directing the agreement to be filed into Court and for making a reference to the arbitrator appointed by the parties.
Notices were issued to the appellants who were impleaded as respondents to that application and after a hearing, an order was made on November 29, 1954 referring the disputes set out in the agreement to the arbitrator named therein.
The arbitrator entered on the reference on January 16, 1955 and the parties thereafter filed statements of cases before him setting out their respective claims and contentions.
Evidence was taken and counsel were heared and thereafter ' the arbitrator pronounced his award on May 27, 1955.
It is the validity of this award that is under challenge in these proceedings.
We might, merely to clear the ground, mention even at this stage that no 'misconduct ' is alleged against the arbitrator but the main ground on which the award is impugned is that it is incomplete.
The award is a long document and purports to decide all the disputes which had been referred to him.
It does not set out the arguments or even the contentions urged by the parties in regard to any specific matter or even the reasons for the particular decisions recorded but corresponds in form to what might for convenience be termed a decree in a civil suit.
The award was filed into Court on June 29, 1955, and thereupon the appellants made an appli cation for setting it aside on various grounds the principal of which was, as already indicated, that the award was incomplete, in that all the disputes which had been referred for arbitration had not been disposed of by it.
The application came on for hearing before a learned Single judge on the original side and it was dismissed on May 26, 1956, the 416 learned judge directing a decree to be passed in terms of the award.
The appellants preferred two appeals one from the order refusing to set aside the award and the other from the decree in terms thereof.
These were heard and disposed of by a common judgment dated January 29, 1957 which directed the dismissal of the appeals and thereafter they applied for and obtained special leave of this court and in pursuance thereof the present appeal which is a consolidated one against the judgment in the two appeals in the High Court has been filed.
Before the High Court a very large number of objections were taken to the validity or legality of the award and they have been elaborately considered and dealt with by the judge of first instance and by the appellate Bench.
Most of these, however, were not repeated before us and Mr. Pathak learned Counsel for the appellants intimated that he would press only three of the grounds: (1) that all the disputes which had been referred to the arbitrator had not been disposed of by the award, and that for this reason the award was incomplete and had to be set aside.
He submitted that there was this incompleteness in respect of three matters : (a) the award had given no direction regarding the rendition of accounts and profits with reference to a lease of the Glass Works Ltd., which the award had declared was invalid and not binding on the Company in which all the shares were owned by the parties, (b) the parties had specifically required the arbitrator in their agreement of reference that he should give directions as regards the future management of the Glass Co. , but the award had failed to comply with this request.
, (c) there was an allegation made in the reference, and as regards which evidence was led before the arbitrator, as to misappropriation of moneys by the 6th respondent.
The arbitrator had not specified in his award as to whether this allegation of misappropriation had been 417 made out or not, nor had he given any direction in regard to the matter.
These related to the head of objections touching the incompleteness of the award.
(2) The second ground urged was this : This award had directed that a piece of land situated at Ketugram in the district of Burdwan be allotted to the 7th respondent in trust for sale for meeting the costs and charges of filing the award and other Court proceedings in reference thereto and to distribute the balance remaining after meeting the said costs and charges, equally between himself and 6 other named.
Learned Counsel urged that it was beyond the power of the arbitrator to have created this trust of the property in dispute.
(3) The values of the several items of property were specified in the award and the division effected was on the basis of this valuation.
Learned Counsel urged that the arbitrator failed in his duty in not valuing the properties himself but had adopted the values suggested by one or other of the parties.
We shall now deal with these points.
As however, we consider that it is only the 1st of the above points about the incompleteness of the award that merits any consideration and that the other two have really no substance and it would be convenient first to dispose of the second and the third of the above points.
The trust created by the award to which point No. 2 relates is in the following terms.
Clause 13 of the award which the relevant clause runs : "That the land at Ketugram, Katwa in the District of Burdwan is allotted to Sri Dhirendra Nath Sen, in trust for selling the same to meet the costs and charges of filing the award together with minutes of the arbitration proceedings, depositions and documents to be filed in court with the award and to distribute the balance if 418 any, left after meeting the said costs and charges, equally amongst himself and the 6 other sons. " and then the award proceeds to make provisions for the contingency of the sale proceeds being insufficient.
It was submitted by learned Counsel that the arbitrator had no jurisdiction to create a trust in respect of property which he was called upon to divide between the parties.
This contention however proceeds on a misreading of what the arbitrator had done, for he has done nothing of the sort alleged.
He has merely made provision for the payment of the costs to be incurred in filing the award which obviously, if it were a valid award, would have to be borne by all the parties whose property was being divided under the award and he had made provision just for that purpose and had directed a division of the surplus sale proceeds among the parties entitled to the property.
When this aspect of the matter was pointed out to learned Counsel the contention was not seriously maintained.
The third point about the arbitrator not having determined the values of the property himself has even less merit than the one we now disposed of The minutes of the proceedings before the arbitrator were produced before the court and those clearly showed that the estimated values of the items, as set out in the award, were those to which the parties themselves had agreed.
The point, therefore, does not call for any further consideration.
Coming next to the point regarding the in completeness of the award, we shall deal first with the contention based on the absence in the award of a direction to account for profits with regard to a lease of the Glass factory which was declared void.
The relevant facts relating to this objection are as follows.
Under the arbitration agreement the 1st 419 head of the disputes referred was this " disputes arising out of or in connection with or in relation to the New Indian Glass Works Ltd. including the management thereof and the acts of any of the parties in respect of or in relation to or arising out of the said company".
This was amplified in a statement filed before the arbitrator on February 12, 1955 by the 1st appellant.
"Para 12.
Dhirendra Nath Sen, Phanindra Nath Sen, Satyendra Nath Sen, Rabindra Nath Sen and jitendra Nath Sen should render true accounts of their dealings with the assets and/or properties of the said Company (New Indian Glass Works) and an award be passed for my share of the amount found due on accounting.
The alleged leases in favour of Rabindra Nath Sen and Phanindra Nath Sen were fraud ulently made in order to defraud me.
I claim for an adjudgment that the said leases are void and I pray for accounts, against the said alleged lessees and an award for my share of the profits on accounting.
" The arbitrator decided in paragraph 9 (c) of the award that "the alleged lease of the factory to Rabindra Nath Sen to be declared void and to be of no binding effect on the Company or on the shareholders.
" The award contained, however, no further direction ordering or refusing to order Rabindra Nath Sen to account for the profits with regard to this lease declared void.
The point that is now urged is that the award is incomplete, in that it has not followed up this declaration or invalidity of the lease by making a consequential order for accounting or by rejecting the claim of the appellants to the accounting and for their share of the amounts found due on the taking of such accounts.
The learned 420 Single judge on the original side as well as the appellate Bench rejected this objection on the authority of an English decision in Harrison vs Creswick (1), where Parke, B., delivering the judgment of the court, stated : "The silence of the Arbitrator upon the subject placed before him means that the Arbitrator has negatived such plea.
" It was submitted by Mr. Pathak that this decision had been misunderstood by the learned judges of the High Court, and that, in fact, it was an authority in his favour.
The contention urged before the Court of common pleas as a ground for setting aside the award was that the defendant bad pleaded a cross claim before the arbitrator and that The award bad granted the plaintiff a decree for a certain sum without specifically allowing or negativing the defendant 's cross claim.
Dealing with this objection Parke, B. who spoke for the Court, observed : "The only question is whether the arbitrator has not by his award impliedly, if not in express terms, finally disposed of the matter.
The rule as laid down in the notes to Birks vs Trippett is, that, where an award professes to be made de praemissis 'Even where there is no award of general releases, the silence of the award as to some of the matters submitted and brought before the arbitrator, does not per se prevent it from being a sufficient exercise of the authority vested in him by the submission.
An award is good, notwithstanding the arbit rator has not made a distinct adjudiction on each or any of the several distinct matters submitted to him, provided that it does not appear that he has excluded any. .
Where an award is made de praemissis, the presump tion is, that the arbitrator intended to dispose (1) 421 finally of all the matters in difference; and his award will be held final, if by any intendment it can be made so.
The rule is this where there is a further claim made by the plaintiff, or a cross demand set up by the defendant, and the award, professing to be made of and concerning the matters referred, is silent respecting such, further claim or crossdemand, the award amounts to an adjudiction that the plaintiff has DO such further claim, or that the defendant 's cross demand is untenable : but where the matter so set up from its nature requires to be specifically adjudicated upon, mere silence will not do.
" It is this last sentence on which Mr. Pathak relies in support of the submission that in the case now before us there was a need for the arbitrator to have rendered a decision in express terms accepting or rejecting the claim for the accounting and that a rejection of that claim could not be inferred from the mere failure of the arbitrator to deal with it.
Learned Counsel pointed out that a case of a cross demand or a cross claim with which Parke, B. was dealing was quite different from an independent claim such as that for accounting made by the appellants in the present case, for where a sum is decreed to a plaintiff it necessarily involves the acceptance or rejection of the cross claim made by the defendant but the position is different where the claim made stands on independent footing.
Before dealing with this point it is necessary to emphasize certain basic positions.
The first of them is that a Court should approach an award with a desire ' 'to support it, if that is reasonably possible, rather than to destroy it by calling it illegal (See Salby vs Whitbread and Co., (1).
Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each (1) , 748. 422 claim or matter separately, but can deliver a consolidated award.
The legal position is clear that unless so specifically required an award need not formally express the decision of the arbitrator on each matter of difference.
(Vide Re. Brown and The Croydon Canal Co. (1) and Jewell vs Christie ().
Further, as parke, B. himself put it during the course of arguments in Harrison vs Creswick (3) : "Unless the contrary appears the court will presume that the award disposes finally of all the matters in difference." and to repeat a sentence from the extract quoted earlier : "Where an award is made de praemissis, the presumption is, that the arbitrator intended to dispose finally of all the matters in difference ; and his award will be held final, if by any intendment it can be made so.
" We shall approach the argument addressed to us in the light of these considerations.
Now the award opens with a paragraph which recites, after setting out the reference : "Whereas I have heard and duly considered all the allegations advanced, evidence adduced before me regarding the respective cases of the parties. .
I do hereby make and publish this, my award in writing as to all the disputes mentioned above.
" It need hardly be added that the arbitration agreement and the statements filed extracts from which we have set out earlier were among the documents incorporated with this award and included among the matters considered by the arbitrator which (1) (1839) 9 Ad.
& Ell.
(2) (1867], L.R. 2 C.P. 296 (3) ; 423 disputes he intended to resolve by this award.
The award, therefore, on its face intended and purported s to decide all the disputesr aised for this adjudication and therefore the Court will assume that he has Di, considered and disposed of every claim made or defence raised.
Since the award now impugned or expressly states that it is made "de pruemissis," i.e., of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete.
In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to that relief.
We shall next turn to the Submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted.
We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental.
If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constat, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award.
This objection, there fore, has to be repelled.
The next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future 424 management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either The award had declared the shares ' of the parties in the Glass Company and by cl. 9 (b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and pro priety disputes had been raised.
When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders.
The silence of the arbitrator in this regard and his failure to make any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company.
If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state of affairs.
The last of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties.
The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim.
It is, therefore, an instance where the silence of the award is a clear indication, having regard to 425 the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld.
This would not render the award incomplete.
We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance.
The appeal fails and is dismissed with costs.

summary:
The appellant as well as the respondents are the heirs of one Hemendra Nath Sen who died intestate in 1929 leaving considerable properties.
Dispute having arisen between his heirs an agreement for partition was entered into determining their shares Among other provisions there was one by which the 2nd appellant was to have 5 annas shares in a glass factory and the rest of the members dividing the balance of the II annas share Further disputes arose and the parties executed an arbitration agreement in which the dispute between the parties was set out Before the reference was submitted to the arbitrator the respondents applied to the High Court under section 20 of the Arbitration Act for an order directing the agreement to be filed in the Court and for making a reference to the arbitrator appointed by the parties.
The present appellants were impleaded as respondents.
The court made an order referring the disputes to the 411 arbitrator named in the agreement.
The arbitrator entered on the reference and after following the prescribed procedure he pronounced the award.
The award was filed in the court where upon the appellants applied for setting it aside on various grounds the principal of which was that the award was incomplete.
, in that all the disputes which had been referred for arbitration had not been disposed of by it.
The Single judge before whom the application came for hearing rejected the application and directed a decree to be passed in terms of the award.
The two appeals filed by the appellants in the High Court, one from the order refusing to set aside the award and the other from the decree in terms of the award were dismissed.
The present appeal is by way of special leave granted by this Court The main contention raised was that the award was incomplete in as much as the award did not dispose of three matters referred to the arbitrator.
These three matters were (a) the award bad given no direction regarding the rendition of accounts and profits with reference to a lease of the Glass Works Ltd. which the award had declared invalid (b) the award had failed to comply with the request, contained in the arbitration agreement, that the arbitrator should give directions as regards the future management of the Glass Co., (c) there was an allegation in the arbitration agreement as regards which evidence was led before the arbitrator, in relation as to miappropriation of moneys by 6th respondent but the arbitrator had not specified in the award whether this allegation had been made out or not and no direction had been given in regard to the matter.
Held that a court should approach an award with a desire to support it if that is reasonably possible, rather than to destroy it by calling it illegal.
Salby vs Whitbread and Co. [1917] I.K.B.736 referred to.
Unless the reference to arbitration specifically so requires the arbitrator is not bound to deal, with each claim or matter separately, but can deliver a consolidated award.
Re Brown and the Croydon Canal Co. (1839) 9 Ad & E11 522 : ; and Jewell vs Christe , referred to.
The silence of the arbitrator upon the subject placed before him means that the arbitrator has negatived such plea.
Unless the contrary appears the court will presume that the 412 award disposes of finally all the matters in difference.
Where an award is made de praemissis, the presumption is that the arbitrator intended to dispose finally of all the matters in difference and his award will be held final if by any intendment it can be made so.
Harrison vs Creswick, ; referred to.
Since the impugned award expressly states that it is made de praemissis", i.e. of and concerning all matters in dispute referred to the arbitrator, there is a presumption that the award is complete.
The silence of the award as regards the claim for accounting must therefore be taken to be intended as a decision rejecting the claim to the relief.
If the lease were set aside because of technical informality.
it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease.
Non constat, the amount due on taking an account has not been taken into account adjusted in making the other provisions of the award.
Hence the contention that the nature of the claims required a specific adjudication is repelled.
The silence of the arbitrator on the question of the award in the facts and circumstances of the case, on the question of future management of the Glass Company and his failure to make any specific provision in regard to the management did not therefore leave any lacuna as regards the rights and must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company.
The absence of any provision regarding the claims of the appellants to relief from the respondents on the ground that they misappropriated the money of the company is capable of only one interpretation and that is that the arbitrator rejected the claims.


judgement:
minal Appeal No. 226 of 1960.
Appeal by special leave from the judgment and order dated July 28, 1960 of the Madhya Pradesh High Court in Criminal Appeal No. 385 of 1959.
A. R. Choubay and Naunit Lal, for the appellant.
I. N. Shroff, for the respondent.
April 23.
The judgment of the Court was delivered by RAGHUBAR DAYAL J.
This appeal, by special leave, is directed against the order of the High Court of Madhya Pradesh reversing, on State appeal, the order of the Additional Sessions judge, Hoshangabad, acquiring the appellant, and convicting him of an offence under section 414 I. P.C. Five bales, containing woollen shawls and mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another bale despatched from 291 Haimanpur to Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa No. C.R. 325.
The lock of the wagon wag found broken open at Pandhurna Railway Station at about 1.00 a.m. on September 20, 1957.
on checking at Nagpur the aforesaid bales were found missing.
One of the bales despatched from Kanpur was found lying the next morning near the railway line between railway stations Jaulkheda and Multai.
On September 23, 1957, the house of one Gopi Nath, at Multai, was searched and certain articles, including some torn labels were recovered from that house.
The same day, the police found the appellant and a few other persons come out of Gopi Nath 's house at Betul, whose front door was locked.
Subsequently, these persons were taken to the police station, where the appellant made a statement showing readiness to point out the stolen property.
At his instance, the police recovered from different places of that house, woollen shawls, mufflers, bed sheets and certain house breaking implements.
These recoveries were made on September 23 and 24.
As a result of investigation, six persons were put on trial in the Magistrate 's Court.
Ajendra Nath, appellant, was charged under sections 120 B, 379 and 414, I.P.C. Babu Ram was charged under sections 120 B and 379 I.P.C. Ram Prasad and Gyarsi were charged under section 120 B read with section 879 I.P.C., Gopinath under section 120 B read with section 414 I.P.C. and Birendranath under section 414 I.P.C.
The learned Magistrate acquitted Birendra Nath and convicted the other accused of the offence under section 120 B read with section 379 I.P.C., except in the case of Gopinath, who was convicted of the offence under section 120 B read with section 414 I.P.C. Ajendra Nath was also convicted of the offence tinder section 414 I.P.C. 292 On appeal, the learned Additional Sessions judge, Hoshangabad, acquitted all these convicted persons.
He held that the property recovered was not proved to be stolen property and that the alleged conspiracy was not proved.
The State filed an appeal against the acquittal of Gopinath and Ajendra Nath.
The High Court dismissed the appeal against Gopinath and the appeal against Ajendra Nath for the offence of conspiracy.
It however allowed the appeal against Ajendra Nath with respect to the offence under section 414 I.P.C.
It is against this order that this appeal has been filed by Ajendra Nath, appellant.
Ajendra Nath did not question the recovery of the various articles from Gopi Nath 's house at Betul at his instance.
He did not claim the property to be his own, but stated that it was not stolen property.
The main contention for the appellant in this Court has been that these recovered article; were not proved to be stolen property.
Tile articles consisted of those said to have been sent by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and bed sheets sent by the firm of V.S.N.C. Narsingha Chettiar, which carries on business of wholesale Hand Loom Cloth at Karur.
The invoices relating to the four bales sent by ' the Kanpur Woollen Mills give the details of the shawls and mufflers the bales contained.
A very large quantity of these has been recovered.
Out of 95 shawls and 63 mufflers, as many as 80 shawls and, 43 mufflers had been recovered.
Similarly, out of 10 pairs of bed sheets stolen, 8 pairs have been recovered.
The absence of any adequate explan ation for the presence of such a large quantity of articles similar to those proved to have been despatched by the Kanpur Woollen Mills or by the Karur company, the recovery of these articles within 293 a few days of the theft, the presence of silk and paper labels of Kanpur Woollen Mills on most of the shawls and mufflers recovered and of certain manuscript writings on the labels of the bed sheets by P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the Karur business, have been taken into consideration by the High Court for coming to the finding that the property recovered was proved to be stolen property.
These circumstances cannot be said to be such which would not justify the finding arrived at.
The main contention for the appellant however is that it has not been definitely established from the evidence of Kunzru, P. W. 10, that the shawls, mufflers recovered were manufactured by the Kanpur Woollen Mills and were despatched in the bales which were subsequently stolen.
Kunzru 's evidence does fall short of establishing that the shawls and mufflers recovered were manufactured by the Kanpur Woollen Mills.
He has not identified the recovered shawls and mufflers as those manufactured by these mills.
In fact, he was not even shown all the shawls and mufflers recovered.
He was shown by the Police Inspector, Government Railway Police, two lois (two shawls) and two mufflers.
He got them examined by the textile expert and, on the report of the expert, gave the certificate that they appeared to be manufactured by the Woollen Mills of Kanpur.
That expert has not been examined in Court and therefore Kunzru 's statement alone fails to establish that these shawls and mufflers were manufactured by these mills.
However, it is not open to doubt that they were manufactured by these mills when most of them had sewn silk labels of these mills and quite a good number of them had even paper labels indicating that they were manufactured by these mills.
There, is no reason to suppose and in fact no such suggestion has been made that these labels had been put on these articles by some one for the purpose of 294 deception.
We therefore consider that the finding that these shawls and mufflers were the manufacture of Kanpur Woollen Mills is correct.
It was also contended for the appellant that it was not proved that these shawls and mufflers were in the bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were not proved as persons who wrote them had not been examined.
Kunzru produced the originals of these documents.
He is the salesman of the Kanpur Woollen Mills.
His cross examination in no way indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross examination.
There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes.
In this connection reference was made to the fact that five of the shawls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices.
There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident.
The fact remains that even the violet shawls are not claimed by the appellant as his own.
So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property.
With respect to the identity of the bed sheets, there is the evidence of P.Ws. 16 and 24.
P.W. 16 deposed that he had supplied 10 pairs of bed sheets to a certain customer who disowned the bale.
Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur.
He recognized the various sheets to be of his firm which they had 295 despatched to Ahimanpur.
He further deposed that before despatching the goods they paste the firm labels on them.
He stated that his younger brother Krishna Murti had noted size number and pattern over these sheets in his handwriting, as he happened to be at home on vacation.
Krishna Murti, P.W.24, admits that certain labels on the bed sheets were in his hand writing, that he wrote them under instructions of his brother and that he had not written sirnilar numbers on any other bed sheets.
He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well.
The learned Additional Sessions judge did not rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation.
The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation.
No question was put to P.W. 24 about the police making him write on the labels on the recovered articles.
In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his.
The police took his writings on blank labels for purposes of comparison.
We therefore see no good reason for considering the finding of the High Court with respect to the bed sheets recovered to be stolen property to be wrong.
It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen 296 property.
We do not see any force in this contention.
The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co accused.
The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.
Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property.
Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property.
It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft.
The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal.
The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept.
May be that the property failing to the share of a particular thief was kept separately.
It was recovered from several different places in the same house.
These places included an iron safe and an underground cellar.
The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door 297 locked.
The appellant also knew the whereabouts of the property inside the house of his maternal grandfather.
He attempted to sell a few mufflers a day before the recoveries were made.
He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house.
All these circumanstances go to support the finding that he had assisted in the concealment of the stolen property and had thus committed the offence under s,414 I.P.C. We therefore see no force in this appeal and, accordingly, dismiss it.
Appeal dismissed.

summary:
Five bales, containing woollen shawls and mufflers dispatched from Kanpur by the British India Corporation Ltd. and another bale despatched from Haimanpur to Kanpur, were loaded in wagon at Itarsi railway station.
The lock of the wagon was found broken open and on checking at nagpur the aforesaid bales were found missing.
On search, certain articles including some torn labels were recovered from the house of one Gopinath.
The same day the appellant and few other persons were found by the Police,coming out of Gopinath 's house whose front door was locked.
They were taken to the Police Station and at the instance of the appellant the police recovered woollen shawls, mufflers, bed sheets and certain house breaking implements from different places of that house.
After investigation, six persons including the appellant were put on trial before the Magistrate for several charges under sections 120 B, 379 and 414 of the Indian Penal Code and except one Birendra Nath, all were convicted.
On appeal, all the convicted persons were acquitted by the Additional Sessions Judge, on further appeal by the State, against the acquittal of Gopinath and the appellant, the High Court allowed the appeal only against the appellant with respect to the offence under section 414 of the Indian Penal Code.
On appeal by special leave, this Court held : Held that the mere fact that the other accused persons were acquitted on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against 290 whom there is better evidence.
The State could challenge the correctness of the findings of the Additional Sessions Judge about the property being stolen property and the High Court could record its own findings on that question.
Held further, that it is not necessary for a person to be convicted under section 414 Indian Penal Code that another person must be traced out and convicted of an offence of committing theft.
The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal.
The circum stances of the recovery in the present case sufficiently prove that the appellant had assisted in the concealment of the stolen property and had thus committed the offence under section 414 Indian Penal Code.
The appeal therefore, must be dismissed.