judgement:
N: Criminal Appeal No. 313 of 1978.
Appeal by Special Leave from the Judgment and Order dated 22 3 78 of the Punjab and Haryana High Court in Criminal Appeal No. 189/75.
A. section Sohal and section K. Jain for the Appellant.
Hardev Singh for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Every litigative appeal has a docket number but beneath the paper lurks a human factor, often forgotten in the forensic pugilists but now and then brought to the fore, as in this criminal appeal limited to the issue of appropriate sentence.
Surely, 'the law must keep its promises. ' Justice Holmes expressed the obvious when he said this, but the breach of promise by the law on delivering criminal justice is daily experience, from police arrest to prison trauma.
The focus in this case is on the sentencing alternatives in the Criminal Procedure Code; and the grievance pressed by counsel, when traditional grounds on the merits failed, was that the compassion of section 360 professionally suffering benign neglect, be kindled and he be released.
Enacted law is guilty of inaction, because its obscure presence on the statute book escapes the vigilance of the Bar.
Where even the court ignores what is vital to the little man the guarantee of 1136 sentencing legality becomes a casualty.
This case is an instance in point.
Now the brief story which enlivens the 'sentencing ' submissions.
Four villagers of rural Punjab, of whom the appellant is one, set upon Arjan Singh, a small official, while on his way back home.
The sound and fury of the attack with sticks brought out the ill starred, innocent Srimati Rakhi, Arjan Singh 's brother 's wife.
Her daughter too came to the spot attracted by the fracas.
Arjan Singh received blows, being the angry target of the assailants.
But poor Rakhi, who came in accidentally, was hit on the head with a takua by Jagir Singh, one of the accused.
She eventually died; and her daughter and Arjan Singh were hurt by the beating.
Four persons were charged by the police with offences under section 302, 324 and 323 I.P.C. including constructive liability under section 34.
Two of them were acquitted by the trial court and the other two were convicted but appealed to the High Court.
The man who dealt the fatal cut was Jagir Singh.
His conviction under section 302 I.P.C. and award of life imprisonment by the Sessions Court was converted into one under section 304 Part 1, I.P.C. with a consequential reduction of sentence to seven years ' rigorous imprisonment.
His conviction on certain other counts was maintained but we are not concerned with him at all, since the appellant in this Court is the other accused Dilbag Singh.
His role was lesser and related to causing simple injury to Arjan Singh for which he was sentenced to rigorous imprisonment for one year and a fine of Rs. 200/ .
He was held vicariously guilty under sections 324/34 I.P.C. and awarded two years ' rigorous imprisonment and a fine of Rs. 1000/ .
In addition he was convicted under section 323 I.P.C. for causing hurt to the daughter of the deceased and on this count punished with R.I. for one year together with a fine of Rs. 200/ .
Having declined leave on the question of guilt, we confine our attention to the contentions on the sentence.
We proceed on the footing of the facts found and ask ourselves whether any basic flaw in sentencing technology affords appellate intervention and re designing of reformatory treatment in the conspectus of circumstances present in the case.
The courts in our country consult the punitive tariffs prescribed in the Penal Code, consult the prison period awarded in practice for such offences and with marginal variations mechanise the process.
Judged by that test, conviction under section 324 I.P.C. read with section 34 plus substantive guilt under section 323 I.P.C. is visited with two years for the former and one year R.I. especially when the incident has ended in death.
But penal humanitarianism, strategies of non institutional rehabilitation and 1137 a complex of other considerations in making an offender a non offender have revolutionized the judicial repertory in re socializing the criminal.
The sentence hearing for which the Criminal Procedure Code, 1973 provides in section 248(2) and section 235(2) has hardly received the serious concern of the Courts despite the International Probation Year and therapeutic accent in penological literature. 'If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella 's illegitimate baby '.
Pre sentence investigation reports, bestowal of intelligent care on the choice between institutional and non institutional disposition and habitual neglect of new avenues open to the court have constrained us to grant leave in the case so that guidelines may be laid down and probation and community oriented methods lying in the legal limbs may be re activated.
Our prisons are overcrowded, our prisoners are subjected to iatrogenic incarceration, our penal drills are self defeatingly callous to correctional measures and our jail budgets bulge without countervailing community benefits because the Bench and the Bar have dismissed as below judicial visibility such patterns as probation, conditional release.
The time has come for Courts to abandon the Monroe Doctrine towards penology and concern itself with innovative sentences.
But this involves careful study of the convict and his potentiality for reform, not guess work nor insensitive assessments.
Therefore, we directed, right at the start, the Chief Probation Officer, Punjab, to make a report to this Court "as to the social circumstances and other relevant factors bearing on the consideration of eligibility of the petitioner to probation." That report has been received and its contents indicate competent advertence to pertinent criteria which we may briefly sum up.
The appellant is 32 years old.
His behavioral attitude is stated to be "obedient and law respecting in nature".
The officer goes on to state that the prisoner 's character is fairly good, that he is upright, alert and interested in rural games.
Of course, he seems to be wrestler of the locality which is good if it is practised as a game but dangerous if he exercises his muscles on other people 's flesh.
More importantly are the social influences that bear upon restraint and good behaviour.
He is a petty farmer who left school in his teens, has ten acres of land belonging to the joint family of himself and five brothers and the mother.
Being a cultivator and living in the joint family circumstances the officer finds no adverse remarks against him in the locality.
On the other hand, the report refers to his great respect for the former Sarpanch of the village.
His family circumstances evoke commiseration because his father is dead having been murdered in 1960.
His mother is alive 1138 and has to be maintained by himself and his two brothers who are truck drivers and the third a jawan.
He has his own nuclear family to maintain with a young wife and four children.
A pitiable factor is that his elder daughter is paralytic from birth.
His social position shows that he belongs to a lower middle class family, lives by agriculture, loves his mother and brothers and has earned the good will of his neighbours who think that the occurrence was induced by an irritating land issue and temporary intoxication.
A Sense of remorse has overcome him according to the Probation Officer who says that he is a first offender and not a recidivist.
It is a painful fact, as noted in the report that this criminal case has cost him a tidy sum, loss of prestige and even family separation.
In the unrefined English of the Probation Officer we may summarise his assessment of the offender: "It was met of an accident as offender client Dilbagh Singh seems to be law abiding and God fearing.
His one weakness is wine and that is the route cause of the present diviation, otherwise on the whole offender 's behaviour is normal and adjustable.
The offender is in curable stage as crime has not gone deep into him.
He can be adjustable amicably within his normal and natural environmental factors.
The client can easily be reformed as he is neither professional criminal nor exhibits any tendency to future deviation.
" The social milieu, the domestic responsibilities, the respect for the former Sarpanch he shows, the general goodwill he commands are plus points.
The tragic fact of his father 's murder and the running misfortune of his young daughter 's paralysed limbs are sour facets of his life.
The circumstance that he is gainfully employed as agriculturist and his brothers, though in diverse occupations, remain joint family members, are hopeful factors.
The aggressive episode which led to his conviction was induced by the company of his cousin who serves a seven year sentence and the inebriation due to drinking habit.
This simple villager responsible and gentle, sad and burdened, repentant and drained of his little wealth by the criminal case, has a long way to go in life being in his early thirtys.
The drinks vice was the minus point.
Many a peaceable person, on slight irritation, suffers bellicose switch over under alcoholic consumption.
How does judicial discretion operate in this skew of circumstances? To jail him is mechanical farewell to the finer sentencing sensitivity of the judge of salvaging a redeemable man by non institutionalised treatment.
The human consequences of the confinement process here will 1139 be no good to society and much injury to the miserable family and, above all, hardening a young man into bad behaviour, with prestige punctured, family injured, and society ill served.
Nor was the crime such, so far as his part was involved, as to deserve long deterrent incarceration.
Our prison system, until humane and purposeful reforms pervades, surely injures, never improves.
Prison justice has promises to keep, and ethological changes geared to curative goals are still alien from dress and bed, refusal of frequent parole and insistence of mechanical chores, bonded labour, nocturnal tensions, and no scheme to reform and many traditions to repress such is the zoological institutional realism and rehabilitative bankruptcy which inflict social and financial costs upon the State.(1) It is wasted sadism to lug this man into counter productive imprisonment for one year.
Long years ago, Franklin D. Roosevelt, in a forward looking speech on John Day, said: "If the criminal 's past history gives good reason to believe that he is not of the naturally criminal type, that he is capable of real reform and of becoming a useful citizen, there is no doubt that probation, viewed from the selfish standpoint of protection to society alone, is the most efficient method that we have.
And yet it is the least understood, the least developed, the least appreciated of all our efforts to rid society of the criminal.
"(2) The appellant has served a substantial part of his sentence in jail because of judicial innocence of the normae in the area of non institutional disposition.
It is easy to imprison, hard to individualise punishment.
Sentencing legality is violated when the judge shirks.
And the Bar is often alien to correctional alternatives and concentrates its ammunition on culpability and extenuatory scaling down of imprisonment.
The observations of the United States Supreme Court in Williams vs New York ; , 249) lay the right stress on pre sentence reports: "have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guess work and inadequate infor 1140 mation.
To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation." Judge F. Rayan Duffy has written: "If the judge has before him a complete and accurate pre sentence investigation report which sets forth the conditions, circumstances, background, and surroundings of the defendant, and the circumstances underlying the offense which has been committed, the judge can then impose sentence with greater assurance that he has adopted the proper course.
He can do so with much greater peace of mind.
"(1) The purpose of section 360 of the Code is precisely this; the goal of section 235(2) is just this.
And yet, the exacting art is more honoured in the breach than in the observance if we many wrongly use a Shakespearean passage to drive home our point.
We stress the legal position so that subordinate courts may not treat conviction as the terminal point but the end of one chapter.
We are mindful of the complexity and remove the impression that easy resort to section 360 is right.
No; it is wrong.
Two quotes set the record straight.
"Imprisonment is the appropriate sentence when the offender must be isolated from the community in order to protect society or if he can learn to readjust his attitudes and patterns of behaviour only in a closely controlled environment.
"(2) "The consequences of a sentence are of the highest order.
If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal.
If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offence by one who otherwise might not have offended so seriously again.
The decision which is presented at sentencing is also enormously complex.
It properly is concerned, and often predominantly, with the future which can be predicted for the particular offender.
But any single valued approach to sentencing is misdirected.
A sentence which is not in some 1141 fashion limited in accordance with the particular offence can lead to a system of incomparable brutality.
Per contra, a sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law.
"(1) In this case, after perusal of the report of the Probation Officer, counsel for the State, Sri Hardev Singh, with fair candour and shared correctness, consented to a release of the prisoner under section 360.
We agree.
But one fact needs emphasis.
The close nexus between violence and alcohol is a call to the State in every criminal investigation to identify the role of alcohol in the commission of the offence and in every prisoner 's treatment to provide for anti alcoholic therapy.
To fail here is vicarious guilt of the State to Society.
We direct release of the appellant forthwith.
He will enter into a bond before the trial court together with Shri Dilbag Singh S/o Babu Singh as surety in the amount of Rs. 1000/ within two weeks of his release to keep the peace, be of good behaviour, to abjure alcohol and not to commit offence for a period of three years and to appear and receive sentence, if called upon in the meantime.
The appeal is allowed with this direction which is the Q.E.D. of sentencing justice.
V.D.K. Appeal allowed.

summary:
In the case of a trial before a court of session, under section 235(2) Criminal Procedure Code "if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." Similarly, in the case of trial of warrant cases by Magistrates, under section 248 (2) of the Code, "where the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of section 325 or section 360, he shall after hearing the accused on the question of sentence, pass sentence upon him according to law.
" Section 361 of the Code mandates that "where in any case, the court could have dealt with: (a) an accused person under section 360 or under the provisions of the (Act XX of 1958) or; (b) a youthful offender under the (Act LX of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment, the special reasons for not having done so." Thus, under the Criminal Procedure Code, 1973, recourse to the provisions of section 360 is a must.
In a trial against four persons charged by the Police with offences under sections 302, 324, 323 IPC, including constructive liability under section 34, two were, acquitted by the trial court and two were convicted.
The appellant was sentenced to rigorous imprisonment for one year and a fine of Rs. 200/ for causing simple injury to one Arjan Singh.
He was held vicariously guilty under sections 324/34 IPC and awarded two years rigorous imprisonment and a fine of Rs. 1000/ .
In addition he was convicted under section 323 IPC, for causing hurt to the daughter of the deceased and on this count punished with R.I. for one year together with a fine of Rs. 200/ .
Releasing the appellant on probation, the Court ^ HELD: 1.
Enacted law is guilty of inaction; because its obscure presence on the statute book escapes the vigilance of the Bar.
Where even the Court ignores what is vital to the little man the guarantee of sentencing legality becomes a casualty.
[1135H, 1136A] 1135 2.
To jail an accused is mechanical farewell to the finer sentencing sensitivity of the Judge of salvaging a redeemable man by non institutionalised treatment.
If the judge has before him a complete and accurate pre sentence investigation report which sets forth the conditions, circumstances, background, and surrounding of the accused and the circumstances underlying the offence which has been committed, the judge could then impose sentence with greater assurance that he has adopted the proper course.
The purpose of section 360 of the Code is precisely this and the goal of section 235(2) is just this.
[1138H, 1140B C] 3.
Sentencing legality is violated when the judge shirks.
And the Bar is often alien to correctional alternatives and concentrates its ammunition on culpability and extenuatory scaling down of imprisonment.
[1189F] 4.
Calling pre sentence investigation reports, bestowal of intelligent care on the choice between institutional and non institutional disposition like probation, conditional release and such community methods must form part of innovative sentences.
But this should be based on careful study of the convict and his potentiality for reform; not guess work, nor insensitive assessments.
[1137B E] Williams vs New York, ; , 249; quoted with approval.


judgement:
N: Criminal Appeal No. 243 of 1979.
Appeal by Special Leave from the Judgment and Order dated 13 9 1978 of the Delhi High Court in Criminal Revision No. 271/78.
U. R. Lalit, R. Bana, M. N. Shroff and Miss A. Subhashini for the Appellant.
K.L. Arora, R. section Sodhi and H. C. Gulati for Respondent No. 1.
V. B. Ganatra, I. N. Shroff and H. section Parihar for Respondent No. 3.
The Judgment of the Court was delivered by SEN J.
In this appeal, by special leave, from the judgment of the Delhi High Court, two questions arise which are one of very general importance.
The first is, in a case where the manufacturer of an article of food is a company, which has nominated a person under sub so 1019 (2) of section 17 of the , as the person responsible, whether the sales manager at one of its branches can be prosecuted for an offence punishable under s.16 (1) (a) read with s.7 (i) of the Act, when the article of food sold at the branch is found to be adulterated within the meaning of s.2 (ia) of the Act.
The second is, whether after the introduction of the new s.17 by Act 34 of 1976, when an offence is committed by a company, which has nominated a person responsible under s.17 (2), it is not permissible to prosecute any other officer of the company not being nominated under subs.
(2), unless there is allegation that the offence had been committed 'with the consent or connivance of, or was attributable to, any neglect on the part of such officer.
Upon the first question the facts lie within the smallest possible compass.
On June 23, 1977 the Delhi Administration filed a complaint under s.7 (i) read with s.16 (1) (a) and s.17 against (1) M/s. Ahmed Oomar Bhoy, Ahmed Mills, Bombay, manufacturers of the well known 'postman ' brand or refined groundnut oil, (2) their distributors M/s. Gainda Mull Hem Raj, New Delhi, a partnership firm, and its managing Partner Mehar Chand Jain, (3) M/s. Amar Provision & General Store, Netaji Nagar Market, New Delhi and its owner Amrik Lal, the retailer, (4) Y. A. Khan, Manager Quality Control, Ahmed Mills appointed by the manufacturers as the person responsible under section 17(2) of the Act, and (5) the two Sales Managers, Delhi Branch of M/s. Ahmed Oomer Bhoy, manufacturers, I. K. Nangia and Y. P. Bhasin.
It was alleged that on August 31, 1976, S.D. Sharma, Food Inspector, New Delhi Municipal Committee lifted a sample of 'Postman ' brand refined groundnut oil from M/s. Amar Provision & General Store, which was sold/supplied to it by M/s. Gainda Mull Hem Raj on August 20, 1976, and the same by the Public Analyst by his report dated September 9, 1976 was found to be adulterated due to the presence of 'castor oil ' (Not an edible oil).
It was further alleged that this adulterated article of food was supplied/sold to M/s. Gainda Mull Hem Raj by M/s. Ahmed Oomer Bhoy on August 20, 1976 through its Sales Managers at Delhi, I. K. Nangia and Y. P. Bhasin.
The Metropolitan Magistrate, Delhi by his order dated April 1, 1978 found that there was a prima facie case against M/s. Ahmed Oomer Bhoy, the manufacturers of the 'Postman ' brand refined groundnut oil, their distributors at Delhi M/s. Gainda Mull Hem Raj and M/s. Amar Provision Store, the retailer, as well as against Y. A. Khan, the Quality Control Manager, Ahmed Mills, but declined to issue any 1020 process against the respondents I. K. Nangia and Y. P. Bhasin, the two Sales Managers of M/s. Ahmed Oomer Bhoy at Delhi observing that though they had effected the sale of the adulterated article of food 'they were not concerned with the manufacture of the article in question but had only effected the sale thereof '.
He accordingly, dismissed the complaint against them holding that their prosecution was misconceived.
The Delhi Administration moved the High Court in revision but it declined to interfere.
There can be no doubt that the order made by the learned Metropolitan Magistrate refusing to issue any process against the respondents is wholly unwarranted.
It cannot be said that there is no material for presuming that these respondents had not committed an offence and, therefore, it was not open to the learned Metropolitan Magistrate to come to the conclusion that there was no basis for proceeding against them.
The test as laid down by this Court in the State of Bihar vs Ramesh Singh is that at the initial stage, if there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there was no sufficient ground for proceeding against the accused.
In the instant case, the allegations in the complaint constitute a prima facie case against the respondents of having committed an offence under s.7 (i) read with s.16 (1) (a) of the Act.
In the complaint, the material allegations are as follows: "6.
That the adulterated article of food was supplied/ sold to M/s. Gainda Mull Hem Raj on 20 8 76 by M/s. Ahmed Oomer Bhoy through its sales managers at Delhi I. K. Nangia and Y. P. Bhasin.
That accused Y. A. Khan is the Quality Control Manager of accused No. 5 and accused I. K. Nangia and Y. P. Bhasin are the Sales Managers (Local Branch) of accused No. 5 and were incharge of and responsible to it for the conduct of its business at the time of commission of offences by accused No. 5.
" The words "were incharge of" and "responsible to it for the conduct of its business" are wide enough to include all the business activities of M/s. Ahmed Oomer Bhoy at Delhi.
It is a common ground that they have a Delhi Office at 2 A/3, Asaf Ali Road, New Delhi, and 1021 that the two respondents I.K. Nangia and Y. P. Bhasin are the Sales Managers.
The complaint makes a specific allegation that the respondents were incharge of and were responsible to their employers for the conduct of their business at Delhi.
section D. Sharma, Food Inspector, PW 1 has stated during the enquiry under section 202 of the Code of Criminal Procedure that the adulterated article of food in question was sold by them to the distributors M/s.
Gainda Mull Hem Raj vide bill No. 62 dated August 20, 1976.
Further, he goes on to, say, that they were incharge of and responsible to M/s. Ahmed Oomer Bhoy for the conduct of their business in Delhi at that time.
Now, the person actually effecting the sale of an adulterated article of food is directly liable under s.7 (i) of the Act, which reads: "7.
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute.
(i) any adulterated food;" The manufactures M/s, Ahmed Oomer Bhoy, Bombay became liable because they were directly selling the adulterated article through their branch office at Delhi.
The respondents I. K. Nangia and Y. P. Bhasin also became liable because of the words "by any person on his behalf" which include their agents and servants.
That appears to be the true construction of the section.
In view of this, the learned Metropolitan Magistrate could not have dismissed the complaint against the respondents.
It appears that M/s. Ahmed Oomer Bhoy, Bombay had appointed the accused Y. A. Khan, Manager Quality Control, Ahmed Mills to be the person responsible for the company under s.17 (2) on July 31, 1976.
It is argued on the strength of section 17 (1) (a) (i) that the respondents could not, therefore, be prosecuted for the offence committed by M/s. Ahmed Oomer Bhoy.
This contention, in our opinion, needs only to be stated to be rejected.
Not only does it involve attributing to the Legislature something which was never intended, but it conflicts with the ordinary canons of constructions.
The question turns upon a proper construction of the new section 17, introduced by Act 34 of 1976, which in so far as material reads: "17.
(i) Where an offence under this Act has been committed by a company (a) (i) the person, if any, who has been nominated under sub section (2) to be in charge of, and responsible to, the 1022 company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was incharge of and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.
Explanation.
Where a company has different establishments, or branches or different units in any establishment or branch, different persons may be nominated under this sub section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) x x x x x x x (4) Notwithstanding anything contained in the foregoing sub sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is 1023 attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, [not being a person nominated under sub section (2)] such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
" On the plain meaning of the section, when an offence has been committed by a company, where there is no nomination under section 17 (2), every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business, is deemed to be guilt of the offence and is liable to be proceeded against and punished.
Notwithstanding the nomination of a person under s.17 (2), any director, manager, secretary or other officer of the company [not being a person nominated under sub section
(2)] can also be vicariously made liable if it is proved that the offence has been committed "with the consent or connivance of, or is attributable to any neglect on the part of such person '.
It is, however, strenuously urged that the company having nominated the accused Y. A. Khan, Quality Control Manager, Ahmed Mills to be the person responsible under s.17 (2), he is the only person liable to be proceeded against throughout the country and the prosecution of the respondents is wholly misconceived.
Our attention has been drawn to the nomination form, and it says that he shall be responsible for the company.
We are afraid, there is no substance in this contention.
There is nothing in the document to show that the nomination is effective not only for the registered office of the company at Bombay but also for all its branches in different States.
Such a construction would, in our opinion, render the Explanation to section 17 (2) wholly illusory.
Where there is a large business organization with a widespread network of sales organisations throughout the country, it ought to nominate different persons for different places or face the consequences set forth in s.17 (1) (a) (ii).
The Explanation appended to s.17 (2) does, in terms, contemplate that where a company has different establishments or branches or different units in any establishment or branch, it may nominate different persons in relation to different establishments or branches or units and the person so nominated in relation to any establishment or branch or unit shall be deemed to be the person responsible in respect of such establishment or branch or unit.
The language of the Explanation shows a purpose and, therefore, a cons 1024 truction consistent with that purpose must reasonably be placed upon it.
We are clear that the Explanation to section 17(2), although in terms permissive, imposes duty upon such a company to nominate a person in relation to different establishments or branches or units.
There can be no doubt that this implies the performance of a public duty, as otherwise, the scheme underlying the section would be unworkable.
The case, in our opinion, comes with in the dictum of Lord Cairns in Julius vs Lord Bishop of Oxford: "There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something, in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.
" The Explanation lays down the mode in which the requirements of section 17 (2) should be complied with.
Normally, the word 'may ' implies what is optional, but for the reasons stated, it should in the context in which it appears, mean 'must '.
There is an element of compulsion.
It is power coupled with a duty.
In Maxwell on Interpretation of Statutes, 11th Edn.
at p. 231, the principle is stated thus: "Statutes which authorise persons to do acts For the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory.
In enacting that they "may" or "shall, if they think fit", or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have to say the least a compulsory force, and so could seem to be modified by judicial exposition." (Emphasis supplied).
Though the company is not a body or authority, there is no reason why the same principle should not apply.
It is thus wrong to suggest 1025 that the Explanation is only an enabling provision, when its breach entails in the consequences indicated above.
It is not left to one 's choice, but the law makes it imperative.
Admittedly, M/s. Ahmed Oomer Bhoy had not at the material time nominated any person, in relation to their Delhi branch.
The matter is, therefore, squarely covered by section 17 (1) (a) (ii).
On the two questions formulated, the answer is self evident.
The individual liability of the sales manager is distinct and separate from the corporate liability of the manufacturer.
In case of a 'company prosecution ', the company along with its agent, that is, the person nominated under s.17 (2) as well as the sales manager can both be prosecuted under s.7 (i) read with s.16 (1) (a).
Notwithstanding the nomination of a person responsible under section 17(2), there can also be prosecution of any director, manager, secretary or other officer of the company under section 17(4).
But in such a case it is necessary for the prosecution to prove that the offence has been committed 'with the consent or connivance of, or is attributable to, any neglect on the part of such person '.
The result, therefore, is that the order of the Metropolitan Magistrate is set aside and he is directed to issue summons to the respondents and proceed with the trial according to law.
V.D.K. Appeal allowed.

dataset_name: IN-Abs

summary:
On August 31, 1976, the Food Inspector lifted a sample of 'Postman ' brand refined ground nut oil from M/s. Amar Provision & General Stores, which was sold/supplied to it by M/s. Gainda Mull Hem Raj on August 20, 1976 and the same was found, as per the Public Analyst 's report dated September 9, 1976, to be adulterated due to the presence of Castoroil (not an edible oil).
This adulterated article of food was supplied/sold to Gainda Mull Hemraj by M/s. Ahmad Oomer Bhoy through its sales managers at Delhi, T. K. Nangia and Y. P. Bhasin.
On June 23, 1977, the Delhi Administration filed a complaint under section 7(1) read with Section 16(1)(a) and Section 17 against (i) M/s. Ahmed Oomer Bhoy Ahmed Mills, Bombay manufacturers of well known brand Postman groundnut oil (ii) their distributors M/s. Gainda Mull Hemraj, New Delhi, a partnership firm, and its managing Partner Meher Chand Jain (iii) M/s. Amar Provision and General Stores, Netajinagar Market, New Delhi and its owner Amrik Lal, the retailer (iv) Y. A. Khan, Manager, Quality Control, Ahmed Mills appointed by the manufacturers as the person responsible under section 17(2) of the Act, and (v) The two sales managers, Delhi Branch of M/s. Ahmed Oomer Bhoy, manufacturers, I.K. Nangia and Y. P. Bhasin.
The Metropolitan Magistrate, Delhi by his order dated April 1, 1978 found that there was a prima facie case against all except the two sales managers and issued process accordingly.
He dismissed the complaint against the respondents on the ground "that they were not concerned with the manufacturer of the article in question, but had only effected the sale thereof".
The Delhi Administration moved the High Court in revision against dismissal, but it declined to interfere.
1017 Allowing the appeal by special leave the Court, ^ HELD: 1.
At the initial stage, if there is strong suspicion which leads the Court to think that there is a ground for presuming that the accused had committed an offence, then it is not open to the Court to say that there was no sufficient ground for proceeding against the accused.
[1020 C D] In the instant case, the allegations in the complaint constitute a prima facie, case against the respondents of having committed an offence under section 7(1) read with section 16(1)(a) of the .
The words "were in charge of" and "responsible to it for the conduct of its business" are wide enough to include all the business activities of M/s. Ahmed Oomer Bhoy at Delhi who have their office at Delhi and the two respondents are the sales Managers.
[1020 E, G H, 1021 A] State of Bihar vs Ramesh Singh, ; ; applied.
The person actually effecting the sale of an adulterated article of food is directly liable under section 7(i) of the Act.
The manufacturers M/s. Ahmed Oomer Bhoy, Bombay became liable because they were directly selling the adulterated article through their branch office at Delhi.
The respondents I. K. Nangia and Y. P. Bhasin also became liable because of the words "by any person on his behalf" in Section 7 which includes their agents and servants.
In view of this, the learned Metropolitan Magistrate should not have dismissed the complaint against the respondents.
[1021 C F] 3.
On the plain meaning of the new section 17, introduced by Act 34 of 1976, when an offence has been committed by a company, where there is no nomination under s 17(2), every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business, is deemed to be guilty of the offence and is liable to be proceeded against and punished.
Notwithstanding the nomination of a person under section 17(2), any director, manager, secretary or other officer of the company [not being a person nominated under sub section
(2)] can also be vicariously made liable if it is proved that the offence has been committed "with the consent or connivance of, or is attributable to any neglect on the part of such person".
[1023 B D] 4.
To construe section 17(2) of the Act to mean that the only person liable to be proceeded is the named/nominated person under section 17(2) would render the Explanation to Section 17(2) wholly illusory.
[1023 E F] 5.
Where there is a large business organisation, with a widespread network of sales organisation throughout the country, it ought to nominate different persons for different places or face the consequences set forth in section 17(1)(a)(ii).
The Explanation appended to section 17(2) does, in terms, contemplate that where a company has different establishments or branches or different units in any establishment or branch, it may nominate different persons in relation to different establishments or branches or units and the person so nominated in relation to any establishment or branch or unit shall be deemed to be the person responsible in respect of such establishment or branch or unit.
The language of the Explanation shows a purpose and, therefore, a construction consistent with that purpose must reasonably be placed upon it.
[1024 F H, 1025 A] 1018 The Explanation to section 17(2), although in terms permissive imposes a duty upon such a company to nominate a person in relation to different establishments or branches or units.
There can be no doubt that this implies the performance of a public duty, as otherwise, the scheme underlying the section would be unworkable.
[1024 A D] The Explanation lays down the mode in which the requirements of section 17(2) should be complied with.
Normally, the word 'may implies what is optional, but for the reasons stated, it should in the context in which it appears.
mean 'must '.
There is an element of compulsion.
It is a power coupled with a duty.
Though the company is not a body or authority, there is no reason why the same principle should not apply.
It is thus wrong to suggest that the Explanation is only an enabling provision, when its breach entails in the consequences indicated above.
It is not left to one 's choice, but the law makes it imperative.
Admittedly, M/s. Anand Oomer Bhoy had not at the material time nominated any person, in relation to their Delhi branch.
The matter is, therefore, squarely conversed by section 17(1)(a)(ii).
[1024D E, H, 1025 A] Julias vs Lord Bishop of Oxford, ; quoted with approval.
The individual liability of the sales manager is distinct and separate from the corporate liability of the manufacturer.
In case of a 'company prosecution ', the company alongwith its agent, that is, the person nominated under section 17(2) as well as the sales manager can both be prosecuted under section 7(i) read with section 16(1) (a).
Notwithstanding the nomination of a person responsible under section 17(2), there can also be prosecution of any director, manager, secretary, or other officer of the company under section 17(4).
But in such a case it is necessary for the prosecution to prove that the offence has been committed 'with the consent or connivance of, or is attributable to, any neglect on the part of such person '.
[1025 B D]


judgement:
Special Leave Petition (Civil) No. 4120 of 1978.
From the Judgment and Order dated 8 3 78 of the Punjab and Haryana High Court in Civil Revision No. 801/76.
Prem Malhotra and M. N. Shroff for the Petitioner.
The Order of the Court was delivered by KRISHNA IYER, J. We refuse leave but with a message tag.
The poor shall not be priced out of the justice market by insistence on court fee and refusal to apply the exemptive provisions of 185 Order XXXIII, C.P.C.
So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in article 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the 'pauper ' provisions to auto accident claims.
The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval.
We affirm the decision.
Even so it is fair for the State to make clear the situation by framing appropriate rules to exempt from levy of court fee cases of claims of compensation where automobile accidents are the cause.
Here is a case of a widow and daughter claiming compensation for the killing of the sole bread winner by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous litigant even by avoiding adjudication through the device of asking for court fee from the pathetic plaintiffs.
Two principles are involved.
Access to court is an aspect of Social Justice and the State has no rational litigation policy if it forgets this fundamental.
Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission: "The right of effective access to justice has emerged with the new social rights.
Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection.
Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system.
Effective access to justice can thus be seen as the most basic requirement the most basic 'human right ' of a system which purports to guarantee legal right.
"(1) We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of court fee levy as a facet of human rights highlighted in our Nation 's Constitution.
If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue.
The Court must give the benefit of doubt against levy of a price to enter the temple of justice 186 until one day the whole issue of the validity of profit making through sale of civil justice, disguised as court fee, is fully reviewed by this Court.
Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order XXXIII Rule 9A, Civil Procedure Code, although several years have passed since the enactment.
Parliament is stultified and the People are frustrated.
Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling the conditio sine qua non.
It is a public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.
The second principle the State of Haryana has unhappily failed to remember is its duty under article 41 of the Constitution to render public assistance, without litigation, in cases of disablement and undeserved want.
It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties.
Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no fault liability and on the spot settlement of claims should become national policy.
The victims, as here, are mostly below the poverty line and litigation is compounded misery.
Hit and run cases are common and the time is ripe for the court to examine whether no fault liability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts.
A long ago Report of the Central Law Commission confined to hit and run cases of auto accidents is gathering dust.
The horrendous increase of highway casualties and the chronic neglect of rules of road safety constrains us to recommend to the Central Law Commission and to Parliament to senitize this tragic area of tort law and overhaul it humanistically.
Another aspect must be noticed before we part with this petition.
In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness.
Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of natural justice, try out pre trial settlements and narrow down the controversy and remember, that 'wiping every tear from every eye ' has judicial relevance.
For, law must keep its promise to Justice.
187 While we dismiss the petition for leave, we hope the Haryana State will hasten to frame rules under the Motor Vehicles Act to enable claimants for compensation to be free from payment of court fee.
M.R. Petition dismissed.

summary:
The respondents, a widow and her daughter, claimed compensation for the killing of their sole bread winner, by a Haryana State Transport bus, but could not afford to pay any court fee on their claim.
The High Court held that the exemptive provisions of Order XXXIII, CPC, will apply to Accident Claims Tribunals, which have the trappings of the Civil Court.
Dismissing the special leave petition the Court, ^ HELD: The State should frame appropriate rules to exempt from levy of court fee, cases of claims of compensation where automobile accidents are the cause.
Two principles are involved.
Firstly, access to court, is an integral part of social justice, and the State has no rational litigation policy if it forgets this fundamental, and secondly, it is the State 's duty under article 41 of the Constitution to render assistance, without litigation, in cases of disablement and undeserved want.
[185 B C, D, 186 C] M. Cappelletti, Rabels Z, (1976) 669 at 672; quoted with approval.
Obiter dictum: I.
It is a public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.
Now that insurance against third party risk is compulsory and motor insurance is nationalised, and transport itself is largely by State Undertakings, the principle of no fault liability and on the spot settlement of claims should become national policy.
[186 B, C, D E] II.
Courts must give the accident claims cases high priority, adopt simplified procedures without breach of natural justice, try out pre trial settlements and narrow down the controversy and remember, that 'wiping every tear from every eye ' has judicial relevance.
For, law must keep its promise to justice.
[186 G H]


judgement:
Civil Appeal No. 1951 of 1969.
Appeal by Special Leave from the Judgment and Order dated 7 1 69 of the Allahabad High Court in Civil Revision No. 506 510 and 548 552/65.
J. P. Goyal and section K. Jain for the Appellant.
R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 1.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by special leave from the judgment of the Allahabad High Court disposing of ten connected civil revisions.
Noorul Hasan Khan and others were the Zamindars of the village in which certain lands were given in Theka to Bhagwati Singh, Ram Prasad Singh and others on the 6th of March, 1948.
The Zamindari vested under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter called the Act, on the 30th of June, 1952.
Disputes arose between the ex Zamindars and the ex Thekadars during the pendency of the proceedings under the U.P. Consolidation of Holding Act.
When entries in the list of tenancy holders were published under section 11 of the Consolidation of the Holdings Act relating to the lands in dispute consisting of several plots, objections were filed by both the parties.
Noorual Hasan Khan and others claimed that the plots in dispute being their exclusive Sir and Khudkasht would be deemed to have been settled with them by the State on the abolition of the Zamindari and their names should be recorded as bhumidars thereof.
On the other hand Bhagwati Singh and others claimed that they had become the Sirdars of the plots in dispute and they resisted the claim of the ex Zamindars.
The Consolidation Officer referred the matter to the Civil Judge of Azamgarh in accordance with section 12 of the Consolidation of Holdings Act.
The Civil Judge sent the matter for decision to an Arbitrator appointed under the Act as the dispute gave rise to the question of title.
Shri Kailash Chandra, an Assistant Collector, was appointed as an Arbitrator.
On consideration of the oral and documentary 979 evidence adduced before him he rejected the claim of ex Zamindars and decided the matter in favour of the ex Thekedars.
Bhagwati Singh and others were held to be the Sirdars of the plots in question.
Noorul Hasan and others filed objections to the Award before the Civil Judge.
He allowed the objections on the ground that the illegality of the Award was apparent on the face of it in as much as the Arbitrator did not apply the correct law in determining the rights of the parties.
He set aside the Award and remitted it back to the arbitrator for reconsideration in the light of his judgment.
Appeals were taken to the learned Additional District Judge who by order dated 8 12 1962 disagreed with the learned Civil Judge on the main question but affirmed his order of remand on the ground that in the Award many questions were left undetermined.
Both sides filed separate revisions before the High Court.
The High Court has allowed the revisions of the ex Thekedars and dismissed those of the ex Zamindars.
Hence this appeal.
The only point which was argued and agitated before us is whether Bhagwati Singh and others have been rightly held to be the Sirdars of the plots in question or whether the ex landlords had become the bhumidars.
The determination of this question depends upon a correct appreciation of the provisions of law contained in sections 12 and 13 of the Act.
We shall read the relevant portions of the two sections.
They are as follows : "12.
Thekedars to be hereditary tenants in certain circumstances. (1) Where any land was in the personal cultivation of a person on the Ist day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.
Estate in possession of a thekedar. (1) Subject to the provisions of Section 12 and sub section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to or possess as such any land in such estate.
980 (2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting, the same shall (a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting, become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less; (b) if it was not sir or khudkasht of the lessor on the date of the grant of the theka and (i) its area does not exceed thirty acres, be deemed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting.
(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209.
" It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting.
This is what has been provided in sub section (1) of section 13.
But it is subject to two exceptions viz.
, one the provision contained in section 12 and the other engrafted in sub section (2) of section 13.
There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2) (a).
We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars.
If such a land was in the personal 981 cultivation of a person on the 1st day of May, 1950 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non obstante clause occurring in sub section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates.
If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act.
The Arbitrator on a consideration of the Theka document found that the theka was made with a view to cultivation of the land by the Thekedar personally.
The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face of the record.
On the other hand it appears to us what the interpretation put by the Arbitrator was correct.
There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2)(a).
In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with.
For the reasons stated above, we dismiss this appeal but in the circumstances make no order as to costs.
N.K.A. Appeal dismissed.

summary:
The appellants and others were the Zamindars of a village in which certain lands were given on Theka to the Respondent and others on 6th March, 1948, the Zamindari having vested on 30th June, 1952.
Disputes arose between the appellants and the respondents during the pendency of proceedings under the U.P. Consolidation of Holdings Act.
The appellants and others claimed the plots in dispute being in their exclusive Sir and Khudkast would be deemed to have been settled with them by the State on the Abolition of Zamindari and their name should be recorded as Bhoomidars thereof.
Respondent and others on the other hand claimed they had become the Sirdars of the plots in dispute and resisted the claims of the Zamindars.
The dispute gave rise to the question of title.
The Civil Judge sent the matter for decision to an Arbitrator appointed under the Act.
The Arbitrator held the respondents to be the Sirdars of the plots in question.
The appellants filed objections against the award before the Civil Judge who allowed the objections, set aside the award and remitted back the award for reconsideration.
Appeals were taken to the Additional District Judge who disagreed with the Civil Judge but affirmed the order of remand.
Both sides filed separate revisions before the High Court, the revision of Respondents was allowed and dismissed those of the appellants.
The only point argued was whether Respondent and others have been rightly held to be the Sirdars of the plots in question or whether the ex landlords had become the Bhoomidars.
Dismissing the appeal.
^ HELD: That a Thekedar of an Estate ceases to have any right to hold or possess any land in such Estate with effect from the date of its vesting.
This is what has been provided in sub section (1) of section 13.
But it is subject to the exceptions viz.
, one the provisions contained in section 12 and the other engrafted in sub section (2) of section 13.
There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2)(a).
The land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars.
If such a land was in the personal cultivation of a person on the Ist May, 1950 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedars personally then because of the non obstante clause occurring in sub section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenants of the land entitled to hold as such and liable to pay rent at hereditary rates.
If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act.
The Arbitrator on a consideration of the theka document found that the theka 978 was made with a view to cultivation of the land by the Thekedar personally.
The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face by the record.
On the other hand it appears to us that the interpretation put by the Arbitrator was correct.
There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2) (a).
The High Court was right in its that the Award of the Arbitrator was not fit to be interfered with.
[980 G H. 981 A D]


judgement:
Civil Appeal No. 2233 of 1969.
From the Judgment and Order dated 11 3 1968 of the Rajasthan High Court in Writ Petition No. 126/62.
Sobhagmal Jain and section K. Jain for the Appellant.
E. C. Agarwala and Girish Chandra for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by certificate by Shri Abdul Qadir from the judgment of the Rajasthan High Court dismissing his Writ Petition.
The house in question belonged to one Mohammed Amin Khan.
The appellant purchased the house from the said owner on 10 7 1948 for Rs. 12,000.
It appears that neither the appellant nor Mohammed Amin Khan was an evacuee within the meaning of the , hereinafter called the Evacuee Property Act.
But under some mistaken notion probably the appellant was treated as an evacuee and the house was declared as an evacuee property on 15 11 1951 in accordance with the Evacuee Property Act.
After such declaration the question that the property was an evacuee property could not be reopened and became final.
Upon that footing the appellant filed an application on 26 9 1953 under section 16(1) of the Evacuee Property Act, as the section then stood, for grant of a certificate.
On 27 10 1956 the Central Government granted a certificate under the unamended provision of law contained in section 16.
Pursuant to the above the appellant made an application to the Assistant Custodian of Evacuee Property for restoration of the house under sub section (2) of section 16.
The Asstt.
Custodian, respondent No. 1 passed an order on 18 3 1957 restoring the house to the appellant.
But before that Shri Ajjumal, respondent No. 2 had been inducted as a tenant in the house by the Custodian after it was declared as an evacuee property.
The appellant was directed to take symbolic possession of the house allowing the said tenant to continue in its occupation on receipt of rent from him.
The appellant came to know later that on 11 11 1960 the Central Government passed an order under section 20A of the , hereinafter 995 referred to as the Displaced Persons Act, whereby it was ordered that in respect of the house in question action be taken in accordance with the said provision of law.
On 6 12 1960 the Central Government ordered that it had revised its order dated 11 11 1960 and the petitioner was entitled to compensation only under section 20A of the Displaced Persons Act.
In the Civil Suit filed by the appellant against Ajjumal it transpired that a sale deed had been executed in his favour as he was a displaced person in occupation of the house and the appellant was entitled to compensation only.
He, therefore, filed a writ petition in the High Court to challenge the action of the Assistant Custodian, respondent No. 2 and the Union of India, respondent No. 3.
The writ case was contested by all the respondents and it was asserted that Ajjumal being a sitting allottee had to be rehabilitated and the appellant was entitled to compensation only.
The High Court has quoted section 16 of the Evacuee Property Act as it stood prior to 22 18 1956 and the section as it came into force after that date.
It has rightly pointed out that there was a change of procedure in the two provisions.
According to section 16 as it stood before 22 10 1956 the application for certificate was to be made to the Central Government and the Central Government in its discretion was to issue the certificate.
On the issuance of such a certificate after following certain procedure the restoration order had to be made by the Custodian of the Evacuee Property.
In the present case only a certificate was issued on 27 10 1956.
The High Court is right in holding that the certificate so issued in accordance with the old law was not valid.
Attempts were made before the High Court to show that the said certificate was issued pursuant to an order alleged to have been made on 1 10.1956.
The High Court was not satisfied about the correctness of this new stand.
Nothing could be pointed out to us to persuade us to take a view different from the one taken by the High Court in regard to the question of the invalidity of the certificate issued in favour of the appellant on 27 10 1956.
There is another difficulty in the way of the appellant and that comes in because of the provision of law contained in section 20A of the Displaced Persons Act.
The said section also had undergone a change from time to time and at the relevant time sub section (1) of section 20A stood as follows: (1) Where any evacuee or his heir has made an application under Sec.
16 of the Evacuee Property Act and the Central Government is of opinion that it is not expedient or 996 practicable to restore the whole or any part of such property to the applicant by reason of the property or part thereof being in occupation of a displaced person or otherwise, then, notwithstanding anything contained in the Evacuee Property Act and this Act, it shall be lawful for the Central Government (a) to transfer to the applicant in lieu of the evacuee property or any part thereof, any immovable property in the compensation pool or any part thereof, being in the opinion of the Central Government as nearly as may be of the same value as the evacuee property or, as the case may be, any part thereof, or (b) to pay to the applicant amount in cash from the compensation pool in lieu of the evacuee property or part thereof as the Central Government having regard to the value of the evacuee property or part thereof may, in the circumstances deem fit.
Explanation: The provisions of this sub section shall apply, whether or not, a certificate for the restoration of the evacuee property has been issued to the applicant under sub sec.
(1) of sec.
16 of the Evacuee Property Act, as in force before the commencement of the Administration of Evacuee Property (Amendment) Ordinance, 1956, if the evacuee property has not in fact been restored to the applicant.
" It would be noticed that the provisions of section 20A (1) have got the over riding effect by virtue of the Explanation appended to it even after a certificate for the restoration of the evacuee property had been issued to the applicant on 27 10 1956.
In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only.
The Central Government has adopted the latter course.
Respondent No. 2, a displaced person, was inducted as a tenant in the property long time back.
The property was sold to him also by the Custodian.
In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him compensation only.
But we were informed that the amount of compensation payable to the appellant has been determined at a somewhat low figure being in the neighborhood of Rs. 8,000 only.
The appellant had 997 purchased the house for Rs. 12,000 in the year 1948.
In that view of the matter we recommend for consideration of the Government whether it would be possible for them to enhance the amount of compensation at least to the figure of Rs. 12,000.
The matter is finally within their jurisdiction and they may decide it as they think it fit and proper to do.
For the reasons stated above this appeal fails and is dismissed but without costs.
P.B.R. Appeal dismissed.

summary:
The appellant purchased a house in July, 1948.
Although neither the vendor nor the appellant was an evacuee within the meaning of the , the appellant was treated as an evacuee and the house was declared evacuee property in 1951.
In response to the appellant 's petition filed in 1953, a certificate was granted by the Government under the unamended provisions of section 16 of the Act.
When the appellant asked for restoration of the house the Assistant Custodian passed an order in 1957 granting restoration.
In the meantime since respondent No. 2 had been inducted as a tenant in the house by the Custodian after it was declared evacuee property the appellant was asked to take symbolic possession of the house allowing the tenant to continue in possession.
Section 20A(1) of the provided that where an evacuee had made an application under section 16 of the Evacuee Property Act, 1950 and the Central Government is of opinion that it is not expedient or practicable to restore the whole or any part of the property to the applicant, it shall be lawful for the Central Government to pay to the applicant the value of the property in cash from the compensation pool in lieu of the evacuee property.
The Explanation to this section provided that the provisions of this sub section shall apply, whether or not a certificate for the restoration of the evacuee property had been issued to the applicant under section 16(1) of the 1950 Act.
The Central Government revised its earlier order dated November 11, 1960 and gave compensation to the appellant under section 20A of the 1954 Act.
The appellant 's writ petition challenging the order of the Assistant Custodian was dismissed by the High Court.
Dismissing the appeal, ^ HELD: 1.
According to section 16 of the 1950 Act, as it stood before October 22, 1956, an application for certificate was to be made to the Central Government.
On the issuance of the certificate, restoration order was made by the Custodian of Evacuee Property.
In the instant case the certificate was issued on October 27, 1956.
The High Court was therefore right in holding that the certificate issued in accordance with the old law was not valid.
[995 D F] 2.
The provisions of section 20A(1) have got the over riding effect by virtue of the Explanation appended to it even after a certificate for the restora 994 tion of the evacuee property had been issued to the applicant on October 27, 1956.
In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only.
The Central Government has adopted the latter course.
Respondent No. 2, a displaced person, was inducted as a tenant in the property a long time back.
The property was sold to him by the Custodian.
In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him only compensation.
[996 F H]


judgement:
Civil Appeal Nos.
1742 1743 of 1969.
Appeals by Special Leave from the Judgment and order dated 12 12 1968 of the Allahabad High Court in R.S.A. No. 2777 of 1972.
section N. Andley, Uma Datta and T. C. Sharma for the Appellant in CA 1742/69.
A. P. section Chauhan and N. N. Sharma for Respondent No. 1 in CA 1742/69 and for the Appellant in CA 1743/69.
1000 The Judgment of the Court was delivered by KOSHAL, J.
The facts giving rise to these two cross appeals by special leave may, with advantage, be stated with reference to the following pedigree table: CHHITAR MAL | ___________________________________________________________ | | | | Salag Ram Banshi Dhar Narain Dass Bhagwan Dass | (died | | | issueless) | | | | | | | | | Balu Ram Ram Chander | | | | | | | Tirlok Chand | | | (plaintiff) | | | | | | | | | Rag Vir Ram Nath Bhagirath | | Saran (defendant) (Defendant | | No. 3) No. 4) No. 5) | | | | | | | | | Devi Sahai Piarye Lal Gopi Nath | (died in (Defendent | | 1943) No. 2) | | | | | | | | | | | Damodar Dass Smt Barfi | (defendant (daughter) | No. 6 | ____________________________________________________ | | | | Murli Kewal Ram Govind Jagananth =Smt.
Chhoti Dhar (dies Ram (died (died (died issueless (died issueless issueless in 1925) in 1952) issue in 1940 in 1955) in 1952) ____________________________________________________________ The litigation between the parties started with suit No. 1912 of 1958 instituted by Tirlok Chand for partition of properties detailed in schedules A,B and C forming part of the plaint.
His case was that 1001 the property described in schedule A had been acquired by his great grand father Chhitar Mal, that the property detailed in schedule B was jointly acquired by Salag Ram 's sons Jagannath and Govind Ram, the two of whom constituted a joint Hindu family, and that the property specified in schedule C had once belonged exclusively to Jagannath, son of Salag Ram and that it was from him that it had descended to his widow Smt.
Chhoti.
Apart from defendants Nos. 2 to 6 whose names appear in the pedigree table, Banwari Lal [who is the appellant before us in Civil Appeal No. 1742(N) of 1969] was arrayed as defendant No. 1 and he has been the real contesting defendant whose claim was based on his adoption by Govind Ram, grandson of Chhitar Mal and on two registered wills, both dated the 25th of September, 1950, purporting to have been executed by Govind Ram and Smt.
Chhoti respectively.
He claimed that the two testators had bequeathed their entire property to him, that the property covered by schedule A was acquired not by Chhitar Mal but by Salag Ram and that the one embraced by schedule C had been purchased by Smt.
Chhoti with her stridhana and was never the property of her husband Jagannath.
He therefore claimed to be entitled to all the properties in suit exclusively for himself, it being common ground between the parties that those properties were the subject matter of the two wills.
The plaintiff denied the adoption set up by defendant No. 1 and challenged the two wills as forgeries.
The trial court and the first appellate court found that the property covered by schedule A had been acquired not by Chhitar Mal but by his son Salag Ram.
There was no contest in relation to the property embraced by schedule B which was therefore treated to have been acquired jointly by Govind Ram and Jagannath as part of their joint Hindu family assets.
In relation to the property detailed in schedule C, the trial Court held that it had been acquired by Jagannath but the finding was reversed by the first appellate court which found that the acquisition was made by Smt.
Chhoti with funds of her own, her husband Jagannath having no interest therein.
On behalf of defendant No. 1 no evidence was led to prove that he had been given or taken in adoption.
The trial court therefore held that the adoption had not been proved.
In the will of Govind Ram however, there was a recital that defendant No. 1 was his adopted son and this recital was considered by the first appellate court to be sufficient to prove the adoption.
Both the wills were held to be genuine 1002 and legally valid and the suit was therefore dismissed by the trial court and the first appellate court in toto.
In second appeal the High Court upheld all the findings of fact arrived it by the first appellate court except the one relating to adoption.
The High Court was of the opinion that the recital in the will of Govind Ram about defendant No. 1 being his adopted son was not sufficient to prove the adoption which therefore was held not to have been established.
It was further held by the High Court that a half share in the property specified in schedules A and B having descended from Jagannath to Smt.
Chhoti as a life tenant only, she was not competent to will it away and that the plaintiff, along with other members of the family, was entitled to succeed to that half share.
It was vehemently contended before the High Court that even if the wills be taken to be genuine, they would operate only if defendant No. 1 was shown to have been validly adopted by Govind Ram because both Govind Ram and Smt.
Chhoti had described him as Govind Ram 's adopted son and must therefore be presumed to have executed the wills in favour of defendant No. 1 by reason of his being the adopted son of Govind Ram.
The contention was repelled by the High Court (as it had also been by the trial court) on the ground that the mention of defendant No. 1 as the adopted son of Govind Ram in each of the two wills had been made merely as a description of the devisee and not as a motivation for the execution of either will.
Support was found for this view from Ranganathan Chattiar and Another vs Periskaruppan and Another.
In the result the High Court accepted the appeal of the plaintiff in part, set aside the dismissal of the suit and remitted the case to the trial court for declaring the shares of the parties in the property which descended to Smt.
Chhoti from her husband, in the light of its (the High Court 's) judgment and for partition of the property accordingly thereafter.
Both the contesting parties feel aggrieved by the judgment of the High Court.
While defendant No. 1 claims in Civil Appeal No. 1742 of 1969 the entire property covered by schedules A, B and C, the plaintiff has filed a cross appeal (Civil Appeal No. 1743 of 1969) seeking to defeat in toto the claim of defendant No. 1. 3.
We have heard learned counsel for the parties at length.
In so before as the findings of fact are concerned they are not open to challenge before us.
The first question which learned counsel for the plaintiffs 1003 has re opened before us is whether the two wills were rightly held to be operative in favour of defendant No. 1 inspite of the fact that he was found not to have established his character as an adopted son which was the description given to him in both the wills.
To this question also we think the High Court gave the correct answer.
In this connection reference may be made to the relevant part of Govind Ram 's will and the same is extracted below : "Shri Banwarilal is the adopted son and heir of the executant.
Shrimati Chhoti is the widow of Jagannath Prasad, resident of Pilkhuwa, Pargana Dasna, Tahsil Ghaziabad.
Both the persons live along with the executant and render all due service to the executant.
Therefore, I make the following will: That after the death of the executant all my estate movable and immovable, with all other goods and household property along with Dharamshala No. 1/60 and one storeyed shop No. 1/57 bounded as given below shall be owned by Shrimati Chhoti widow of Jagannath Prasad, occupation shopkeeper, resident of Pilkhuwa, who shall have no right to sell the estate.
She shall have the right to spend for the Dharamshala the income of shop No. 1/57 connected with the Dharamshala.
After the death of Smt.
Chhoti, Banwarilal, adopted son and heir of the executant, shall be the owner .
Interpreting this document and considering the surrounding circumstances of the case, the trial court found that the motive for the execution of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love and affection for him.
It was found as a fact that Banwari Lal was living with Govind Ram and Smt.
Chhoti, that he had served them during their illness and that he was affectionately attached to them so that at the time when the wills were executed there was no one nearer or dearer to Govind Ram and Smt.
Chhoti than Banwari Lal.
In this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwari Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the latter had rendered to him.
The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favour of the devisee not because of the relationship 1004 brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and assistance.
The only other noticeable point raised on behalf of the plaintiff was that the will executed by Smt.
Chhoti must be held to be wholly inoperative in so far as properties detained in schedules A and B are concerned.
There is no force in that contention either.
One half of the properties mentioned in those two schedules had vested in Smt.
Chhoti under the will of Govind Ram which itself declared that Smt.
Chhoti would hold them merely as a life tenant and that thereafter they would devolve on defendant No. 1.
In devising those properties to defendant No. 1 Smt.
Chhoti did nothing more than carry out the behest of her own testator, which behest was good in law and would have been effective even if Smt.
Chhoti had made no will in favour of defendant No. 1 in respect of the properties acquired by her under Govind Ram 's will.
On behalf of defendant No. 1 the only submission made was that the two wills must be given effect to not only with regard to the properties received by Smt.
Chhoti from Govind Ram but also in respect of those which devolved on her as a successor to her husband Jagannath.
This submission is also without substance.
Jagannath died in 1940 when Smt.
Chhoti came into his property on the usual life tenure without any right of a alienation (except for necessity) or of devise.
To the extent that she overstepped her rights in devising Jagannath 's property the will transgressed the law and has been rightly held to be inoperative, the result being that her reversioners and not her devisee would succeed to Jagannath 's share in the properties covered by schedules A and B. The situation would certainly have been different if the adoption had been proved; for, in that case, defendant No. 1 would have succeeded as the sole reversioner to the estate left by Smt.
Chhoti, being her husband 's brother 's son and therefore his nearest and sole heir.
And that is why a contention was raised on behalf of defendant No. 1 that a valid adoption had been proved and that the finding to the contrary arrived at by two of the courts below was unsupportable.
Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No. 1 being the adopted son of the devisor and to the oral evidence of Raj Pal, DW 2 who attested that will and deposed that defendant No. 1 had been adopted by the testator.
These two pieces of evidence were considered by the trial court as well as the High Court, both of whom regarded the material as insufficient to hold that a valid adoption was proved.
The finding in relation to the adoption is a finding of fact which we see no reason to interfere with in the circumstances of the case.
The 1005 adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witnesses who were present at the actual adoption and had seen the 'giving and taking ' would normally have been available.
However, no attempt was made to produce any such witness nor to explain why no such witness was forthcoming.
Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place, which is not the case here.
The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh vs Bisheshwar Pratap Narain Singh cited by learned counsel for defendant No. 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case.
And the burden of proof of adoption was heavy on the defendant.
In this connection we may refer to the following passage in Article 512 of Mulla 's Hindu Law (14th edition): ".
But the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption.
That onus is particularly heavy where the adoption is made a long time after the date of the alleged authority to adopt. " It is true, as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove the factum of adoption must be favourably entertained; but then that is not the situation here as we have already pointed out.
We are therefore one with the High Court in holding that on the evidence adduced, defendant No. 1 has not been successful in establishing the alleged adoption.
In the result both the appeals fail and are dismissed with no order as to costs.
P.B.R. Appeals dismissed.

summary:
G and J were the sons of S son of M.
The plaintiff was the grandson of another son of M.
In a document purporting to have been executed by G it was stated that defendant No. 1 was his (G 's) adopted son and heir and that C (his younger brother J 's widow) and defendant No. 1 had rendered services to him, in recognition of which he bequeathed properties detailed in the will to C to be enjoyed by her during her life time and that on her death defendant No. 1 shall be their owner.
The plaintiff in his suit for partition claimed that the properties detailed in Schedule A to the plaint had been acquired by his great grandfather M, those in Schedule B were jointly acquired by G and J, both of whom constituted a joint Hindu family, and those in Schedule C which once belonged exclusively to J descended on his death to his widow C.
The plaintiff also challenged the adoption of defendant No. 1.
Defendant No. 1 on the other hand claimed that since he was the adopted son of G the properties bequeathed to him by G 's will were his exclusive properties.
He also claimed that the properties in Schedule C were purchased by J 's widow C with her stridhana, that by reason of her will he was entitled exclusively to those properties and that they never belonged to her late husband.
The trial court held that adoption had not been proved and that the motive for the execution of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love and affection for him.
The first appellate court held that the recital in G 's will that defendant No. 1 was his adopted son was sufficient to prove the fact of adoption.
The High Court on the other hand was of the opinion that the recital in G 's will that defendant No. 1 was his adopted son was not sufficient to prove the adopted and that the reference to adoption had been made merely as a description of the devisee and not as a motivation for the execution of the will. ^ HELD: Defendant No. 1 had not been successful in establishing the alleged adoption.
(a) It is well established that evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption.
[1005 D E] (b) The burden of proof of adoption in this case lay heavily on defendant No. 1 which he has not discharged satisfactorily.
This is not a case in which the adoption had taken place a very long time the suit was filed.
It had in fact taken place within about a decade immediately preceding the suit when witnesses who were present at the ceremony and who had seen the giving and taking would normally have been available.
He did not explain why no such witness was forthcoming.
[1005 A B] (c) The relationship mentioned in the will that defendant No. 1 was his adopted son and heir was merely a description of the devisee as understood by the testator.
The will was executed not because that relationship was brought about by adoption but by reason of feelings of affection which the devisee had earned by his association with and the assistance rendered to the testator.
[1003 H 1004 A] 2.
There is no force in the contention of the plaintiff that the will executed by C must be held to be wholly inoperative in so far as properties detailed in Schedules A and B were concerned because one half of the properties mentioned in these schedules had vested in C under the will of G which itself declared that she would hold them merely as a life tenant and that thereafter they would devolve on defendant No. 1.
In devising the properties to defendant No. 1, C did no more than carry out the behest of her own testator, which behest was good in law.
[1004 A C]