judgement:
Civil Appeals Nos. 201 and 202 of 1961.
404 Appeals from the judgment and decree dated May, 16, 1958 of the Patna High Court in L. P. As.
Nos 13 and 14 of 1957.
A. V. Viswanatha Sastri, R. K. Garg, M. K. Ramamurthi, D. P. Singh and section C. Agarwala, for the appellants.
M. C. Setalvad, Attorney General for India.
B. P. Rajgarhia and K. K. Sinha, for the respondents.
December 22.
The Judgment of the Court was delivered by DAS GUPTA, J.
These appeals raise a question as to the manner in which a creditor company can validly cast its vote at a meeting of the creditors held under the provisions of section 153 of the Indian Companies Act, 1913.
The question arises in connection with such a meeting held of the creditors of the Gaya Sugar Mills Ltd. On November 14, 1951, an order was made by the Company Judge in the Patna High Court for the winding up of the Gaya Sugar Mills Ltd.
On October 6, 1953, an order was made by the learned Judge for action to be taken under section 153 of the Indian Companies Act.
Mr. G. C. Banerjee, who was appointed Chairman to hold the meeting of the creditors held separate meetings of the debenture holders, secured creditors and of the unsecured creditors.
In his Report he stated as regards the meeting of the unsecured creditors that "thirty unsecured creditors either in person or through proxy attended and took part in the meeting," and that ultimately a resolution proposed by one of the creditors, the Standard Vacuum Oil Company and seconded by another creditor Shri K. C. Agarwal was passed "by the creditors present by majority in number as well as three fourth in value.
" It appears that at this meeting one Arjun Prasad claiming to represent two creditor companies, viz., Bhandani Bros., and the Hindustan 405 Coal Company Ltd., cast his votes on behalf of these two companies, in support of the resolution.
No objection was taken at the meeting to the validity of these votes by any of the creditors who opposed the resolution and the Chairman proceeded on the basis that these votes were validly cast.
It is not disputed that if these votes were not validly cast the requisite majority of three fourths in value would not be obtained.
When the application came up for final hearing before the Court an objection was taken on behalf of creditors who opposed the scheme that the votes cast by Arjun Prasad on behalf of the two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Company were not valid votes and so the requisite majority of three fourths in value of the creditors had not been obtained.
The Company Judge was of the opinion that there was no sufficient explanation as to why the objection as to the validity of the votes was not taken earlier and so the objection raised at the late stage could not be entertained.
On the merits also he held that the resolution passed by the creditor companies authorising Arjun Prasad, to attend the meeting of the unsecured creditors of the Gaya Sugar Mills Ltd., and vote on behalf of the companies, were sufficient in law to make his attendance at the meeting the attendance of the companies "in person" and his voting on behalf of the companies valid voting of the companies.
Accordingly, he rejected this objection.
On appeal a Division Bench of the Patna High Court has allowed the objection, being of opinion that the delay in raising the objection would not entitle the Court to ignore the legal defect of the votes and that in law the votes cast by Arjun Prasad were not valid votes of these two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Company.
A contention that no appeal 406 lay to the High Court from the order of the Company Judge was rejected.
Therefore, the learned Judges set aside the order of the Company Judge as to this part of the case.
They, however, gave a certificate that as regards the value and nature of the case, it fulfils the requirements of article 133(1)(a) of the Constitution and is a fit one for appeal to this Court.
On this certificate the present appeals have been filed.
Three points were raised before us by Mr. Sastri in support of the appeals.
The first is that from the decision of the Company Judge, an appeal lay to this Court and not to the High Court.
Secondly, it was urged that the objection to the validity of the votes not having been taken earlier should not be allowed to be raised for the first time during arguments at the final hearing of the application.
Lastly, it was urged that the votes were valid.
As regards the first point it is to be noticed that sub section 7 of section 153, which was added in 1936 provides that an appeal shall lie from any order made by the court exercising original jurisdiction under the section to the authority authorised to hear appeals from the decisions of the Court.
It therefore could not be disputed and was not disputed that an appeal did lie from the order made by the Company Judge on October 6, 1953.
The controversy is whether the appeal lay to this Court or the High Court.
In other words, the question is, which is the authority authorised to hear appeals from the decisions of the Court ? The "Court" here cannot but mean the Court exercising original jurisdiction.
When the Company Judge exercises the jurisdiction he does it under the provisions of section 3 of the Companies Act which says that the Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate.
The authority authorised to hear appeals from 407 appealable decisions of a Single Judge of the Patna High Court when exercising original jurisdiction lie to the High Court and not to this Court.
(Vide Clause 10 of the Letters Patent).
It necessarily follows that the appeal from the order of the Company Judge lay to the High Court and not to this Court.
There is, therefore, no substance in the first point raised on behalf of the appellant.
The next contention that the objection cannot be entertained for the first time at the final hearing of the application appears to us to be equally unsound.
It is undoubtedly true that the opposing creditors were guilty of negligence in not drawing the attention of the Chairman to what they considered to be a defect in the voting on behalf of the two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Co., and no less negligence in not bringing this to the Court 's notice at the earliest opportunity.
Laches on the part of some creditors cannot however justify the Chairman or the Court in disobeying the requirements of the Act.
If in law the two votes cast by Arjun Prasad for these two creditor companies were not validly cast he three fourth majority requisite under section 153, sub section 2, would not be there and so no further action under section 153 could be taken by the Court in the matter.
How can the Court turn a blind eye to the fact, if proved, that on the basis of valid votes at the meeting the requisite majority was not obtained, merely because the Chairman 's attention was not drawn to the defect or it was not brought to the Court 's notice earlier ? In our opinion, the learned Judges who heard the appeal were right in thinking that however deplorable the delay by opposing creditors in raising the objection might be, that would not be a sufficient reason for refusing to entertain the objection.
This brings us to the main question in controversy, viz., whether the resolutions passed by the 408 two creditor companies, viz., Bhandani Brothers and the Hindustan Coal Company, authorising Arjun Prasad to attend the meeting on their behalf and to vote there on their behalf made Arjun Prasad 's voting valid voting.
Section 153(2) of the Indian Companies Act is in these words : "If a majority in number representing three fourths in value of the creditors or class of creditors, or members or class of members, as the case may be, present either in person, or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the Court be binding on all the creditors or the class of creditors, or on all members or class of members, as the case may be, and also on the company, or, in the case of a company in the course of being wound up, on the liquidator and contributories of the Company.
" The agreement has to be of a majority in number representing three fourths in value of those who are present either in person or by proxy at the meeting.
The agreement of those who are not present at the meeting either in person or by proxy cannot be taken into consideration.
Any creditor whether a corporation or a natural person can be present at a meeting by proxy.
A natural person can of course be present at a meeting "in person".
Can a corporation be present at a meeting "in person"? It appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person.
" It is true that under the , a company is a "Person", so that whenever the word "person" is used in any statute a company would be included thereunder.
The definition in the can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions or rules having the force of law.
409 Nor can the appellant derive any assistance from the English Case In re Kelantan Coco, Limited and Reduced cited by the learned counsel.
In that case, the Court was dealing with a petition for reduction of capital.
In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under s.68 of the Companies (Consolidation) Act, 1908, to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present.
The articles of Association provided: "two members personally present shall be a quorum.
" It was held that a representative appointed under section 68 should be taken into account in considering whether there was a quorum.
The provisions of section 68 were similar to those of section 80 of the Indian Companies Act, 1913, and thereunder a company which is a member of another company may, act as its representative at any meeting of that other company.
The presence of such a representative was taken in the above case to amount to personal presence of a member of the company.
The case does not deal with the question of a creditor company.
In the , a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorises such person as it thinks fit to act its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company, (section 187(1)(b) and 2).
No such provision however is to be found in the Indian Companies Act, 1913.
It is unnecessary for us to 410 consider whether under this new provision the attendance of a person authorised in this manner at a meeting of the creditors will amount to attendance of the creditor company "in person".
For, the present case is governed by the provisions of the Indian Companies Act, 1913, and not by this new provision.
When the Companies Act was amended in 1936, an addition was made in section 246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under section 153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power.
Rule 144 of the Rules states that a creditor or contributor may vote either in person or by proxy.
Rules 145 to 153 deal with various questions as regards proxies.
Of these Rule 150 lays down how a proxy is to be given where a creditor is a corporation.
Admittedly, no proxy in accordance with Rule 150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Coal Company, in the present case.
There is nothing in these rules which can assist Mr. Sastri 's argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors ' meeting makes him a "present in person" in law for that company at the meeting.
Mr. Sastri 's last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person".
As we have already indicated it does not appear to us that in the Act of 1913 their is any provision 411 for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad.
The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies., viz., Bhandani Brothers and the Hindustan Coal Company, were not valid votes in our opinion, correct.
The appeals are accordingly dismissed with costs.
One set of hearing fee.
Appeals dismissed.

dataset_name: IN-Abs

summary:
Subsequent to an order made for the winding up of a company, the Company Judge made a direction for action to be taken under provisions of section 153 of the Indian Companies At the meeting of the unsecured creditors of the company a resolution was passed by the creditors present, either in person or through proxy, by majority in number as well as three fourths in value.
At this meeting the appellant claiming to represent two of the creditor companies cast his votes on behalf of the said companies in support of the resolution.
No objection was taken at the meeting to the validity of the votes by any of the creditors who opposed the resolution.
When the matter came up for orders before the Company Judge an objection was raised that the votes cast by the appellant on behalf of the two creditor companies were not valid, inasmuch as section 153(2) of the Act requires that the creditors should be present either in person or by proxy at the meeting and that, in the present case, the two creditor companies, being corporations, could not be considered to have been present at the meeting "in person".
The Company Judge overruled the objection on the grounds that it was raised at a late stage and that, in any case, the votes were valid because the appellant 's attendance at the meeting amounted to the attendance of the companies "in person".
On appeal, a Division Bench of the Patna High Court rejected the contention that no appeal lay to the High Court from the order of the Company Judge but only to the Supreme Court and, on the merits, set aside his order. ^ Held, that: (1) the word "Court" in section 153(7) of the Indian Companies Act, 1913, means the Court exercising original jurisdiction, and.
therefore, an appeal from the order of the Company Judge lay to the High Court under cl. 10 of the Letters Patent; (2) though under the , a company is a "person" so that whenever the word "person" is used in any statute a company would be included thereunder, unless there is some special provision by a law a company which is not a physical person cannot "be present" at any place "in person"; and (3) in the present case the votes cast by the appellant were not valid in law and it being admitted that if the votes were invalid the requisite majority of three fourths in value requisite under section 153(2) of the Indian Companies Act, 1913, would not be obtained and therefore no further action could be taken by the Court in the matter, the delay in raising the objection would not entitle the Court to ignore the legal defect of the votes.


judgement:
iminal Appeal No. 79 of 1952.
Appeal by special leave from & Judgment and Order dated 16th April, 1951, of the High Court of Judicature at Allahabad Dayal and Desai JJ.) in Criminal Miscellaneous No. 17 of 1950.
K. section Krishnaswami Iyengar (H. B. Asthana, with him) for the appellants.
N. C. Sen for the respondent.
February 5.
The Judgment of the Court was delivered by MAHAJAN J.
This is an appeal by special leave from the judgment and order dated the 16th April, 1951 of the Allahabad High Court in Criminal Miscellaneous Petition No. 17 of 1950.
The two appellants are members of the Uttar Pradesh Civil Service.
583 In March, 1950, appellant No. 1 (Rizwan ul Hasan) was posted as District Magistrate, Jalaun, and appellant No. 2, Mohammad Munawar, was posted as a Magistrate in the same district, having officiated as District Magistrate for some time in the early part of March, 1960.
On 2nd March, 1,950, one Phundi Singh commenced proceedings under section 145 of the Code of Criminal Procedure in the Court of the Sub Divisional Magistrate of Jalaun on the allegation that Kedarnath and Matadin were about to cut his standing crop by force and 'that there was an imminent danger of a breach of the peace.
The magistrate issued notices to the parties complained against and ordered attachment of the standing crop.
On 4th March, 1950, one Shriram, brother of Kedarnath, filed a counter application before the court making certain allegations against one Thakur Pratap Singh, said to be the real person behind the proceedings commenced by Phundi Singh.
Kedarnath and Matadin, the respondents in Phundi Singh 's application, also filed an application similar to that of Shriram before the District Magistrate on the same date.
This application was accompanied by a recommendatory letter written to the District Magistrate by Lalla Ram Dwivedi, Secretary, District Congress Committee.
It was received by the second appellant who was then officiating as District Magistrate and was sent by him to the Sub Divisional Magistrate, Jalaun, in whose court Phundi Singh 's application was pending, for report.
The Sub Divisional Magistrate returned it with the remark that a proper com plaint should be made in his court in the ordinary way on the allegations made in the application.
Thereupon the second appellant returned the application to Kedarnath and Matadin and advised them to move the Sub Divisional Magistrate in as formal and proper manner.
On the application of Phundi Singh made before the High Court of Allahabad under section 3 of the 584 Contempt of Courts Act, the second appellant was held guilty of contempt of the Sub Divisional Magistrate on the following reasoning Shri Mohammad Munawar opposite party No. 5 forwarded application given by the opposite parties Nos ' 2 and 3 together with introductory letter to the Sub Divisional Magistrate,Jalaun.
We do not think that he had any intention to influence the Sub Divisional Magistrate with respect to his action in the case under section 145, Criminal Procedure Code.
But intention is not 'of importance so far as the question of commission of contempt is concerned.
He certainly acted without due circumspection and thought.
It must have been clear to him that the application contained expression which affected the due considerations of the points in dispute in the proceeding under section 145, Criminal Procedure Code.
He says in his affidavit and we can accept it that he sent this application to the Sub Divisional Magistrate just for taking action for the protection of opposite parties No. 2 and No. 3 and their crop about which an allegation was made that some action was to be taken by the other party the night following.
He should in the circumstances either pass an order for the police himself which he could have very well done, or he could have just conveyed a gist of the complaint necessitating protection of life and property immediately.
His conduct in transmitting the allegations made by the opposite parties No. 2 and 3 to the Sub Divisional Magistrate, Jalaun, in whose court the case under section 145, Criminal Procedure Code, was pending, did amount to the commission of contempt of that court." As regards the first appellant, the facts are that on 22nd March an application was received by post in the office of the District Magistrate signed by Shriram containing allegations against the trying Magistrate.
On 25th March, 1950, this application was sent by the appellant for report to the Sub Divisional Magistrate with the following endorsement 585 section D.C.
Please look into these allegations and let me have a report.
" On 4th April, 1950, the Sub Divisional Magistrate submitted a report and the first appellant having been satisfied that the allegations were baseless passed the following order: " I do not see any reason to withdraw the case from your file." On the application of Phundi Singh mentioned above made before the High Court of Allahabad under section 3 of the Contempt of Courts Act this appellant along with others was also held guilty of contempt of the Sub Divisional Magistrate 's Court, on the following reasoning : "Similarly transmission of the application sent by Shriram on the 25th March to the Sub Divisional Magistrate, Jalaun, amounted to commission of contempt of court by opposite party No. 6.
The mere fact that he had to take action in view of the allegations against the magistrate in that application would not affect this question.
The application contained, as already stated, expressions showing that Phundi Singh was a history sheeter and that the case under section 145, Criminal Procedure Code, was fictitious and was instituted at the instance of Pratap Singh.
He should not have transmitted the entire application.
He could have necessary extracts which related to the allegations against the magistrate sent to the ' court concerned in the circumstances when the applicants introduced matter irrelevant for transfer application.
It may also be mentioned here that the application could be treated as a transfer application though no such request was made in that application.
The application was neither properly presented nor was it accompanied by an affidavit nor was it stamped.
The applicant wanted some action for the protection of his crop from bad characters." Having found both the appellants guilty of contempt of court of the Sub Divisional Magistrate, Jalaun, the High Court took no action against them because they happened to commit contempt of court rather due to their carelessness Find lack of vigilance 586 than with any deliberate intention to commit it.
It was observed that officers who have to transmit communications to courts of justice should be vigilant and careful to see that nothing is transmitted which can have any effect, even remotely on, the merits of a case.
In our judgment, the proceedings for contempt of court against the two appellants on the facts stated are misconceived and have to be quashed.
Both the appellants were superior officers of the Sub Divisional Magistrate at the time when they sent the applications of Kedarnath and Matadin for report.
They were under a duty to supervise his work.
It is difficult to see how by transmitting the applications received by them to him, and asking him for his views they were in any way interfering with the course of justice and were committing contempt of his court.
Their action cannot be characterized as having a tendency to interfere with the course of justice.
The applications were transmitted to the Sub Divisional Magistrate in the usual and normal course of the official practice and we 'cannot subscribe to the view of the High Court that only extracts of these applications should have been sent to him for his views and not the applications as such as they contained material which had a tendency to interfere with the course of justice.
The second appellant, when he was officiating as District Magistrate, received the application of Kedarnath and Matadin with a letter of recommendation from the Secretary of the Congress Committee.
This application was in the nature of a counter complaint, and the appellant acted properly in sending it to the magistrate who was seised of the original application.
He was under no duty to censor it and to out it into pieces and then forward the relevant parts only to the magistrate.
The recommendatory letter was an annexure to the application and it had to go with it.
The conduct of the Secretary of the Congress Committee in writing a recommendatory letter about the facts of the case to the District 587 Magistrate was undoubtedly a communication for the purpose of influencing his decision and was rightly reprobated by the High Court.
Such 9, course is calculated, if tolerated, to divert the course of justice and ought more frequently than it is, to be treated as what it really is ' namely, a high contempt of court.
The Congress Secretary has been rightly held guilty of contempt and punished.
He has not come to this Court and we are no longer concerned with him.
But we are unable to find how the conduct of the appellant in sending the application which, as we have already stated, was in the nature of counter charge to the Sub Divisional Magistrate who was seised of the original complaint in any way amounted to contempt of court.
There are three different sorts of contempts known to law in such matters.
One kind of contempt is scandalizing the court itself.
There may likewise be a contempt of the court in abusing parties who are concerned in causes in that court.
There may also be a contempt of court in prejudicing mankind against persons before the cause is heard.
The act of the appellant could not fall in either of these three categories.
So far as the first appellant is concerned, under the provisions of section 528 of the Code of Criminal Procedure, he had authority to withdraw the case under section 145 of the Code pending in the court of the Sub Divisional Magistrate.
On the application of 22nd March made by Kedarnath and Matadin containing allegations against the Sub Divisional Magistrate he was entitled to use his powers under that section if the allegations contained therein were substantiated.
It is usual to send such applications to the court concerned for its remarks and that is precisely what he did.
and as soon as the remarks were received and he was satisfied that the allegations were baseless, he declined to withdraw the case.
We have not been able to see how such an action on the part of the District Magistrate, done in the normal and usual course of the discharge of his duties as such magistrate, could be held to interfere with the 76 588 course of administration of justice or to create pre re judice of any kind against the complainant in the proceedings under section 145 of the Code of Criminal Procedure.
There is nothing in section 528 of the Criminal Procedure Code which disables a magistrate from taking action unless he is set in motion by the petition of one of the parties and nothing in the Code prevents any person from bringing facts to the notice of the District Magistrate which might suggest to that magistrate that it was advisable to see whether the magistrate should remain in charge of a particular case.
In our judgment, therefore, the High Court was in error in thinking that the two appellants acted without due circumspection and thought and were guilty of contempt of the court of the Sub Divisional Magistrate.
We are further of the opinion that it was not possible to hold on those facts that any prejudice &rose in the case by these two applications being sent by the appellants to the Sub Divisional Magistrate or that any action was necessary for the protection of the tribunal which was engaged in hearing the case under section 145, Criminal Procedure Code.
As observed by Rankin C.J. in Anantalal Singha vs Alfred Henry Watson (1), the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a, substantial interference with the due course of justice and that the purpose of the court 's action is a practical purpose and it is reasonably clear on the authorities that the court will not exercise its juris diction upon a mere question of propriety.
The result is that we allow the appeal, set aside the judgment of the High Court against the two appellants and acquit them of the charge under section 3 of the Contempt of Courts Act.
Appeal allowed.
Agent for the appellant : section Subramanian.

summary:
The jurisdiction in contempt of court is not to be invoke a unless there is real prejudice which can be regarded as a substantial interference with the due course of justice.
The purport of the court 's action is a practical purpose and the Court will not exercise its jurisdiction upon a mere question of propriety.
During the pendency of proceedings against A and B under section 145, Criminal Procedure Code, in the court of a Sub Divisional Magistrate, A and B made an application to the District Magistrate alleging that the proceedings were not bona fide and 582 containing statements in the nature of a countercharge.
The 2nd appellant who was then officiating as the District Magistrate sent this application to the Sub Divisional Magistrate for report and on receiving a report from him that A and B should be asked to file a formal complaint before him, advised them to do so.
A brother of A sent a similar petition to the District Magistrate containing also allegations against the trying Magistrate.
The 1st appellant, who was the District Magistrate, forwarded them to the Sub Divisional Magistrate for report, and on receiving his report passed an order that he saw no reason to withdraw the file from the Sub Divisional Magistrate.
The High Court of Allahabad held that as the applications contained allegations which might interfere with the course of the trial of the proceedings under section 145, in transmitting the applications the appellants had acted without due circumspection and thought though they had no intention to influence the Sub Divisional Magistrate and the appellants were therefore guilty of contempt of court: Held, (i) that in transmitting the applications received by them to the Sub Divisional Magistrate and calling for a report the appellants were not in any way interfering with the course of justice but were only doing their duty as superior officers; (ii) it was not possible to hold that any prejudice had been caused by the two applications being sent by the appellants to the Sub,Divisional Magistrate or that any action was necessary to protect the Sub Divisional Magistrate who was hearing the case and the appellants were not guilty of any contempt of court.
Anantalal Singha vs Alfred Henry Watson ([1931] I.L.R. referred to.


judgement:
Appeal No. 185 of 1956.
Appeal by special leave from the judgment and decree dated November 25, 1954, of the Bombay High Court in Second Appeal No. 1003 of 1952.
H. R. Gokhale, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants.
C. B. Agarwala and A. G. Ratnaparkhi, for the respondent No. 1.
April 19.
The Judgment of the Court was delivered by SINHA, C. J.
The only question for determination in this appeal is whether the defendants appellants are 'protected tenants ' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) (which hereinafter will be referred to, for the sake of brevity, as the Act of 1939), whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948) which hereinafter will be referred to as the Act of 1948).
The Courts below have decreed the plaintiff 's suit for possession of the lands in dispute, holding that the defendants were not entitled to the protection claimed by them as 'protected tenants '.
This appeal is by special leave granted by this Court on April 4, 1965.
The facts of this case are not in dispute.
Shortly stated, they are as follows.
By virtue of a lease dated October 30, 1939, the defendants obtained a lease of the disputed lands from the plaintiff for a period of 10 years, expiring on October 30, 1949.
The lands in 61 dispute have been found to lie within two miles of the limits of Poona Municipality.
The landlord gave notice on October 22, 1948, terminating the tenancy as from October 30, 1949.
As the defendants did not vacate the land, in terms of the notice aforesaid, the plaintiff instituted the suit for ejectment in the Court of the Civil Judge, Junior Division, at Poona in Civil Suit No. 86 of 1950.
The Act of 1939 became law on March 27, 1940, but the Act was applied to Poona area with effect from April 11, 1946.
Under section 3 of the Act, a tenant shall be deemed to be a ' protected tenant ' in respect of any land if he has hold such land continuously for a period of not less than six years immediately preceding either the first day of January, 1938, or the first day of January, 1945, (added by the Amending Act of 1946) and has cultivated such land personally during the aforesaid period.
It is not disputed that the defen dants appellants became entitled to the status of 'protected tenants ' as a result of the operation of the Act, as amended by the Bombay Tenancy (Amendment) Act, 1946 (Bombay Act XXVI of 1946), and under section 3A(1) the defendants were deemed to be 'protected tenants ' under the Act and their rights as such were recorded in the Record of Rights.
Sections 3 and 3A(1), aforesaid, are set out below: "3.
A tenant shall be deemed to be a protected tenant in respect of any land if (a) he has held such land continuously for a period of not less than six years immediately preceding either (i) the first day of January 1938 or (ii) the first day of January 1945 and (b) has cultivated such land personally during the aforesaid period.
3A(1) Every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy Amendment Act of 1946, be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to 62 the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant".
Under section 3A(1) aforesaid, it was open to the landlord, within one year of the date of the commencement of the Amending Act of 1946, to make an application to the Mamlatdar for a declaration that the tenant was not a 'protected tenant '.
No such proceeding appears to have been taken.
As a result of the expiration of one year from November 8, 1946the date of the coming into operation of the Amending Act of 1946 the defendants were deemed to be 'protected tenants ' and it is not disputed that they were recorded as such.
Section 4 of the Act, with which we are not concerned in the present case, made further provisions for recovery of possession by tenants who had been evicted from their holdings in circumstances set out in that section.
The Act, therefore, in its terms, was intended for the protection of tenants in certain areas in the Province of Bombay (as it then was).
If nothing had happened later, the defendants would have had the status of 'protected tenants ' and could not have been evicted from their holdings, except in accordance with the provisions of the Tenancy Law.
But the Act of 1939 was replaced by the Act of 1948.
The question that arises now for determination is whether the Act of 1948 wiped out the defendant 's status as 'protected tenants '.
For determining this question, we have naturally to examine the relevant provisions of the later Act.
The Act of 1948, by section 2 cl.
(14) prior to its amendment by Bombay Act XIII of 1956, provides that " protected tenant ' means a person who is recognised to be a protected tenant under section 31".
Section 31 runs as follows: "For the purposes of this Act, a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under section 3, 3A or 4 of the Bombay Tenancy Act, 1939.
" The force and effect of section 31 will have to be discussed later while dealing with the arguments raised 63 on behalf of the landlord respondent.
The next relevant provisions of the Act of 1948 are those of section 88(1)(c) which reads: "Nothing in the foregoing provisions of this Act shall apply: . . . . . . . . . . . . . . . (c) to any area within the limits of Greater Bombay and within the limits of the municipal boroughs of Poona City and Suburban, Ahmedabad, Sholapur, Surat and Hubli and within a distance of two miles of the limits of such boroughs; or. .
As already observed, the lands in dispute in the present controversy have been found to be situate within two miles of the limits of the Poona Municipal Borough, which, for the purpose of this case, has been equated to 'Borough of Poona City and Suburban '.
It has been contended on behalf of the respondent that under the later Act the disputed lands are outside the purview of the Act and that, therefore, the defendants appellants are not entitled to claim the status of 'protected tenants '.
The appellants have answered this contention by reference to the provisions of section 89, which may now be set out (in so far as they are necessary for the purpose of this case): "89(1) The enactment specified in the Schedule is hereby repealed to the extent mentioned in the fourth column thereof (2) But nothing in this Act or any repeal effected thereby . . . . . . . `. (b) shall, save as expressly provided in this Act, affect or be deemed to affect, (i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or (ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation, or liability or anything done or suffered before the commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed . ".
64 It has been contended on behalf of the appellants that the repealing section 89, read with the Schedule, makes it clear that the whole of sections 3, 3A and 4 of the Act of 1939 have been saved, subject to certain modifications, which are not relevant to the present purpose; and that sub section 2(b) of section 89 has in terms, saved the appellants ' rights as 'protected tenants ' because those rights had already accrued to them under the Act of 1939.
But this contention is countered by the learned counsel for the plaintiff respondent on three grounds, namely, (1) that section 88 expressly provides that sections 1 to 87 of the later Act shall not apply to lands situate in the Municipal Borough of Poona City and Suburban and within a distance of two miles of the limits of such borough; (2) that what has been saved by cl.
(b) of sub section
(2) of section 89 is not every right but only such rights as had been actually exercised and recognised; and (3) that the terms of the saving clause, as contained section 89(2)(b) were not identical with section 7 of the Bombay General Clauses Act, inasmuch as cl.
(b) aforesaid only speaks of such proceedings being continued and disposed of, without reference to the institution of such proceedings.
Shortly put, the arguments on behalf of the appellants is that the taking away of the status of a protected tenant ' from certain lands, as specified in section 88, is only prospective and not retrospective, whereas the argument on behalf of the respondent is that the repeal was with retrospective effect and only so much was saved as would come directly within the terms of el.
(b) of section 89(2), and that the right claimed by the appellants was in express terms taken away by section 88.
The argument based on the second ground may be disposed of at the outset in order to clear the ground for a further consideration of the effect of sections 88 and 89, on which the whole case depends.
The learned counsel for the plaintiff respondent placed strong reliance upon the following observations of the Lord Chancellor in the case of Abbot vs The Minister for Lands (1): "They think that the mere right (assuming it to (1) ,431. 65 be properly so called)existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment." The contention is that in order that the defendants appellants could claim the status of 'protected tenants ' as a right accrued under the Act of 1939, they should have taken certain steps to enforce that right and got the relevant authorities to pronounce upon those rights, and as no such steps had admittedly been taken by the appellants, they could not claim that they had a 'right accrued ' to them as claimed.
In our opinion, there is no substance in this contention.
The observations, quoted above, made by the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy had arisen.
In that case, the appellant had obtained a grant in fee simple of certain lands under the Crown Lands Alienation Act, 1861.
By virtue of the original grant, he would have been entitled to claim settlement of additional areas ' if he satisfied certain conditions laid down in the relevant provisions of the statute.
The original settle had the right to claim the additional settlements, if he so desired, on fulfillment of those conditions.
He had those rights to acquire the additional lands under the provisions of the Crown Lands Alienation Act,, 1861, but the Crown Lands Act of 1884, repealed the previous Act, subject to a saving provision to the effect that all rights accrued by virtue of the repealed, enactment shall, subject to any express provisions of the repealing Act in relation thereto, remain unaffected by such repeal.
The appellants ' contention that under the saving clause of the repealed enactment he had the right to make additional conditional purchases and that was a 'right accrued ' within the meaning of the saving clause contained in the repealing Act of 1884, was negatived by the Privy Council.
It is, thus;, clear that the context in which the observations relied upon by the respondent, as quoted above, were made is entirely different 9 66 from the context of the present controversy.
That decision is only authority for the proposition that 'the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a 'right accrued ' within the meaning of the usual saving clause '.
In that ruling, their Lordships of the Privy Council assumed that the contingent right of the original grantee was a right but it was not a right accrued ' within the meaning of the repealed statute.
It was held not to have accrued because the option given to the original grantee to make additional purchases had not been exercised before the repeal.
In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act, which had restricted those rights.
In the instant case, the right of a 'protected tenant ' had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary.
That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid.
On the other hand, as already indicated, section 3A(1) of the 'Act of 1939 had given the right to the landlord respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a 'protected tenant '.
He did not proceed in that behalf.
Hence, it is clear that so far as the appellants were concerned, their status as 'protected tenants ' had been recognised by the public authorities under the Act of 1939, and they bad to do nothing more to bring their case within the expression 'right accrued ', in el.
(b) of section 89(2) of the Act of 1948.
It having been held that the second ground of attack against the claim made by the appellants is not well founded in law, it now remains to consider whether the first ground, namely, that there is an express provision in section 88, within the meaning of section 89(2)(b), taking away the appellants ' right, is supported by the terms of sections and 89.
In this connection, it was pointed out on behalf of the respondent that section 88(1) in terms provides that sections 1 to 87 of 67 the Act of 1948 shall not apply to lands of the situation of the disputed lands; and section 31 has been further pressed in laid of this argument.
Section 31 has already "been quoted, and it begins with the words "For the purposes of this Act".
The provisions of the Act of 1948 relating to the rights and liabilities of a protected tenant ' are not the same as those under the Act of 1939.
Hence, though the provisions of sections 3, 3 A and 4 of the earlier Act of 1939 have been adopt.
ed by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as 'Protected tenants '.
In other words section 31 has been enacted not to do away with the rights contained in sections 3, 3 A and 4 of the earlier statute, but with a view to apply that nomenclature to larger rights conferred 'under the Act of 1948.
The provisions of section 88 are entirely prospective.
They apply to lands of the description contained in cls.
(a) to (d) of a. 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948.
They are not intended in any sense to be of a confiscatory character.
They do not show an intention to take away what had already accrued to tenants acquiring the status of 'protected tenants '.
On the other hand, section 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had, been acquired or had accrued before the commencement of the repealing Act.
But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub cl.
(ii) of cl.
(b) of section 89(2) would indicate that the legislature did not intend completely to re enact the provisions of section 7 of the Bombay General Clauses Act.
This argument is based on the absence of the word instituted ' before the words 'continued and disposed of '.
In our opinion there are several answers to this contention.
In the first place, sub cl.
(i) is independent of sub el.
(ii) of ol.
(b) of section 89(2).
Therefore, sub el.
(ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub cl.
Sub cl.
(ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of 68 proceedings taken under, the repealed Act.
;We have already held that the expression 'right accrued ' in sub el.
(i) does not exclude the rights of 'protected tenants"claimed by the appellants.
It is well settled that where there is a right recognised by law, there is a remedy,; and, therefore, in ' the absence of any special provisions indicating the particular forum for enforcing a particular right, the general law of the land will naturally take its course.
In this connection, it is relevant to refer to the observations of the High Court that "even if it were to be assumed that the right as a 'protected tenant ' remained vested in the defendants even after the enactment of section 88(1), that right, in its enforcement;against the plaintiff, must be regarded as illusory".
In our opinion, those observations are not well founded.
Courts will be 'very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated.
Lastly, the legal effect of the provisions of sub el.
(ii) aforesaid is only this that any legal proceeding! in ' respect of the, right claimed by, the defendants shall be continued and disposed of as if the Act of 1948 had not been passed.
Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute.
That being so, in Our Opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.
It has not been disputed before us that if that. is done, there is only one answer to this suit, namely, that it must be dismissed with costs.
Accordingly, we allow the appeal, set aside the judgments below and dismiss the suit with costs throughout, to the contesting defendants appellants.

summary:
The appellants had acquired the rights of protected tenants under section 3A(1) of the Bombay Tenancy Act, 1939, as amended by the Bombay Tenancy (Amendment) Act, 1946, and their rights as protected tenants were recorded in the Record of Rights.
That Act was repealed by the Bombay Tenancy and Agricultural Lands Act, 1948, which by section 31 recognised the rights of a protected tenant acquired under the Act of 1939 for its own purposes, by section 88(1)(c) provided, that nothing in the foregoing provisions of the Act should apply to any area within the limits of the Municipal borough of Poona City and Suburban as also some other boroughs and within a distance of two miles of the limits of such boroughs, and by section 89(2) that "nothing in this Act or any repeal effected thereby . (b) shall, save as expressly provided in this Act, affect or be deemed to affect (i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or . . . . . . . . . or . . . . . . . . . (ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation, or liability or anything done or suffered before the commencement of this Act, and any such proceeding shall be continued and disposed of, as if this Act was not passed The lands in dispute were situated within two miles of the limits of the Poona Municipal Borough, i.e. Poona City and Suburban, and the question was whether the rights of the appellants as protected tenants therein were.
I affected by the repeal.
Held, that the provisions of section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, are entirely prospective and apply to such lands as are described in cls.
(a) to (d) of section 88(1) from 60 the date on which the Act came into operation i.e. December 28, 1948, and are not of a confiscatory nature so as to take away from the tenant the status of a protected tenant already accrued to him.
Section 89(2)(b) of the Act clearly intends to conserve such rights as were acquired or accrued before its commencement and that any legal proceeding in respect of such rights was to be disposed of in terms of the Act of 1939.
Abbot vs The Minister for Lands, , distin guished.


judgement:
n No. 143 of 1961.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental rights.
section Swaminathan and R. Gopalakrishnan, for the petitioner.
K. N. Rajagopala Sastri and P. D. Menon, for the respondents.
595 1962.
January 16.
The Judgment of the Court was delivered by KAPUR,J.
This is a petition by the assessee under article 32 of the Constitution challenging the constitutionality of the second proviso to section 10(2) (vi b) of Income tax Act introduced by The Taxation Laws (Amendment) Act (28 of 1960).
The relevant section with the proviso is as follows: section 10(1) "The tax shall be payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him.
(2) Such profits or gains shall be computed after making the following allowances, namely: . . . . . . . . . . . . . . . . . . . (vi b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty five per cent of the actual cost of such machinery or plant to the assessee : Provided that no allowance under this clause shall be made unless the particulars prescribed for the purpose of clause (vi) have been furnished by the assessee in respect of such machinery or plant; Provided further that no allowance under this clause shall be made in respect of any machinery or plant which consist of office appliances or road transport vehicles.
" The petitioner is a limited company with its registered office at Madurai in the State of Madras 596 which owns a fleet of buses and lorries and carries on the business of transport In respect of assessment year 1960 61 it claimed a development rebate on all its plants and machinery including business.
The Income tax Officer disallowed the claim of rebate on transport vehicles under the proviso above quoted and computed the tax payable without such rebate.
It was contended on behalf of the petitioner that the proviso offends article 14 in that it discriminates between machinery which is office appliance or road transport vehicles and other kind of machinery.
It is difficult to accept such a contention because there is nothing in the Constitution which prevents the legislature from choosing the object of taxation from amongst various classes of machinery for the purpose of giving development rebate.
The Constitution does not prohibit any such classification which has been made in the pressnt case.
The petition is wholly without merit and is therefore dismissed and the rule is discharged.
The petitioner will pay the costs of the respondent.
Petition dismissed.

summary:
The assessee company owned a fleet of buses and carried on the business of transport.
The income tax officer disallowed development rebate on the transport vehicles owned by the company as provided by the second proviso to section 10(2) (vi b) of the Income tax Act.
The company challenged the section on the ground that the said proviso offends article 14 in that it discriminates between machinery which is office appliances or road transport vehicles and other kinds of machinery.
^ Held, that there is nothing in the Constitution which prevents the Legislature from choosing the objects of taxation from amongst various classes of machinery for purpose of giving development rebate.


judgement:
Civil Appeal No. 87 of 1959.
Appeal from the judgment and decree dated April 6, 1955, of the former Andhra High Court in A.S.O. No. 134/50.
T. V. R. Tatachari, for the appellants.
Bhimasankaram, K. R. Choudhuri and T. M. Sen, for the respondent.
December 21.
The Judgment of the Court was delivered by: RAGHUBAR DAYAL, J.
This is an appeal on a certificate granted by the High Court of Andhra Pradesh, against the judgment and order of the High Court reversing the judgment and order of the District Judge, Vizagapatam, holding that the place of worship in suit was not a temple as defined in the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), hereinafter called the Act.
On March 28, 1947, the Board of Commissioners for Hindu Religious & Charitable Endowments, Madras, held the institution in suit to be a temple as defined in the Act.
The appellants, thereafter filed a petition under section 84(2) of the Act, in the Court of the District Judge, Vizagapatam, and prayed for the setting aside of the order of the Board.
They alleged that the institution, known as the Poohari Fakir Sadavarthy, at Bondilipuram, Chicacole, a ongstanding institution, was started by one Malukdas 278 Bavajee, some time during the reign of the Moghul Emperor, Aurangazeb.
The Emperor, in recognition of the Bavajee 's piety and devotion to God, made certain grants to him with the object and purpose of enabling him to maintain himself and carry on the distribution of Sadavarthy to Fakirs and Sadhus and to pray to God for the prosperity of the Empire and Emperor, according to what was stated in the well known historical works like Bhakthamala by Maharaja Raghunandha Singh Deo of Rewa.
The institution flourished and continues up to this day.
The original plaintiff No. 2, Rajaram Das Bavajee, was the ninth in succession from the founder Malukdas Bavajee.
He died during the pendency of the proceedings and is now represented by appellant No. 2, Mahant Gangaram Das Bavajee.
Sithaldas Bavajee, the sixth head of the institution, who lived in the first half of the Nineteenth Century built a temple and installed therein certain idols for his private worship.
The shrine was an adjunct of the institution Poohari Fakir Sadavarthy.
It is alleged to be a private temple known as Jagannadhaswami temple, Balaga, and is meant for the worship of the Mahant and his disciples, one of whom conducts the daily worship.
The income from the various properties granted to Malukdas Bavajee or his successors had been regularly utilised for the maintenance of the head of the institution and for distributing charities to the sadhus and pilgrims passing through Balaga.
A part of the income was, however spent on the expenses of the worship in the temple and the incidental expenses connected with it.
The respondent Board denied that Jagannadhaswami temple was a private place of worship, that the public had no access to it without the permission of the Bavajee and alleged that the temple possessed all the features of a place of public 279 religious worship and was dedicated to or for the benefit of or used as of right by the Hindu community as a place of religious worship.
The appellants examined five witnesses, including plaintiff No. 2, in support of their case.
The respondent examined one witness.
The plaintiffs also filed a number of documents.
The respondent filed a few documents which included the Board 's order dated March 28, 1947, and its enclosure.
The learned District Judge concluded, from the evidence, that Jagannadhaswami temple was not a temple as defined in the Act, it being a private temple existing for the benefit of the appellants only.
He therefore set aside the impugned order of the Board.
On appeal, the High Court came to a different conclusion and allowed the appeal.
It mainly relied on the entries in the Inam registers with respect to the institution and on the following facts which it considered to be established : (i) the temple is a very old temple constructed in or about the year 1750; (ii) the temple has the structure and polity of a public temple; (iii) there are utsava vigrahams and vahanams; (iv) it has a big compound wall with the gate opening into the Chinna Bazaar Road; (v) regular worship is performed every day at the scheduled time; (vi) there is an archaka who performs worship; (vii) a large number of pilgrims attend every day and partake in the food given after naivedyam to the God; 280 (viii) there are utsavams and the rathotsavam which is particularly conducted on large scale and is attended by members of the public.
The High Court relied on the statement of the solitary witness examined for the Board and rejected the statements of the witnesses examined for the appellants.
The sole question for determination in this appeal is whether this institution is a 'temple ' as defined in the Act.
Clause (12) of section 9 of the Act reads: " 'Temple ' means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship.
" The institution in suit will be a temple if two conditions are satisfied.
One is that is a place of public religious worship and the other is that it is dedicated to or is for the benefit of, or is used as of right by, the Hindu community, or any section thereof, as a place of religious worship.
We are of opinion that the oral and documentary evidence fully establish the appellants ' case that it is not a temple as defined in the Act.
The documents on record and bearing dates from 1698 to 1803 A. D. mention the grants to be for the purposes of the Bavajee, i.e., the head of the institution.
The first document, Exhibit P 1, (is of the Hizri year 1117, corresponding to 1698 A.D., and purports to be executed by Ibrahim Khan, Bahadur, a humble servant of Badshah Alamgir Ghazi.
, i.e., Emperor Aurangazeb.
This order says: "The village of Cheedivalasa, Boonamali Pargana Haveli (town) towards Kaling of the 281 said Sirkar, has been fixed and continued as a complete inam in favour of Poohari (Poojari) Fakir Sadabarty in accordance with the Sanads of the previous rulers.
Meanwhile, in view of the claims of the said person it has been confirmed as per endorsement in accordance with momooli (usage) and mustamir (continuing, lasting long).
It is necessary that the said village be placed in the enjoyment of the said person so that, utilising the incomes thereof for his own maintenance, he may engage himself in praying for the stability of the State till eternity.
" The purpose of the other grants is stated in practically similar terms aud it is necessary to quote them.
None of the grants of land or other property on record bears a date subsequent to that of the year 1803 A.D.
The documents, Exhibits P 47, P 48 and P 49 are orders of the Collectors and refer to the villages of Cheedivalasa and Thallavalasa, and the last two state that the income of these two villages was given for sadavarty (feeding) for the respective year to Phalari (Phulhari) Bavaji.
There is no mention in any of these two documents that any grant was being made for the purposes of the temple or for the purposes of the Bavaji as well as for those of a temple.
The only reference to the construction of the temple is in Exhibit P 52, an extract from the Register of Inams dated May 22, 1865, with respect to village Vanzangi.
The name of the village, however, does not appear in the document itself.
It is stated in this document: "About century ago, the trustees built a temple of Jagannadhaswamy.
" According to this note, the temple may be said to have been built in about 1760 A.D.
The documents of the period from 1761 to 1803 A.D. Exhibits P 31 282 to P 49, do not record that the grants under them were for the expenses of the temple as well.
The grants simply mention them to be for the expenses of Fakirs, in the name of Poohari Fakir Sadavarthy, and not for the temple.
The non reference to the temple in the various documents is consistent with the temple being for the private worship of the head of the Sadavarti Institution and being an adjunct to that institution, as in that case there was to be no grant to the temple and the grant had to be to the Sadavarti institution or to its head.
It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence.
Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well known institution in that part of the country, where, it has been held judicially, there is a presumption of a temple being a public temple.
We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers.
It follows from an examination of the various documents of the period between 1608 and 1803 A.D., that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself, it being always in the name of the Bavajee in charge of that institution.
Before discussing the entries in the inam registers which carry great weight, we may first refer to the Rules in pursuance of which the entries in the Inam registers were made, after due investigation.
The various extracts from the Inam registers which have been filed show that the proposals for the grant were confirmed under rule 3, clause (1), tax free.
This makes it of importance to consider the rule 283 thus referred to.
It is one of the rules for the adjudication and settlement of the inam lands of the Madras Presidency and is quoted at page 219 in the case reported as Arunachellam Chetty vs Venkatachalapathi Guruswamigal (1) "If the inam was given for religious or charitable objects, such as for the support of temples, mosques, colleges, choultries, and other public buildings or institutions, or for services therein, whether held in the names of the institutions or of the persons rendering the services; it will be continued to the present holders and their successors, and will not be subject to further interference, so long as the buildings or institutions are maintained in an efficient state, and the services continue to be performed according to the conditions of the grant.
" It was also said at page 217: "But the Inam Register for the year 1864 has been produced, and to it their Lordships attach importance.
It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free.
But it must not be forgotten that the preparation of this Register was a great act of state, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes.
It is to be remembered that the Inam Commissioners through their officials made inquiry on the spot, heard evidence and examined documents, and with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself.
While their Lordships do not doubt that such a report would not displace actual 284 and authentic evidence in individual cases; yet the Board, when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register.
" Exhibit P 50 is the extract from the Inam Register No. 48 relating to village Tallavalasa in the Taluk of Chicacole in the district of Ganjam.
The note of the Deputy Collector, Inam Commissioner, records inter alia the following particulars: (1) The village was granted originally by the Nawab Mafuz Khan in Hiziri 1155 corresponding with A.D. 1739 to one Inamdar Bairagi; as the original sanad is not forthcoming it is impossible to mention here without entering into details, the object of the grant and the tenure of the village.
This mokhasa jahagiri is in possession of the person in column (II) who is known by the name of Palahara Mahant Bartudoss Bavaji, 'a Bairagi '.
(2) This Bartudoss Bavaji pleaded that this village and three other villages were granted in the district by the former Rulers for Sadavarti and for certain other Divine Service, and that the proceeds of them were appropriated to the expenses attendant on the temple of Sri Jagannadhaswami to some extent and to distributing Sadavarti or supplying victuals, fire wood, etc., or dressed food to Bairagis and others resorting to Rameswaram from Benaras and vice versa.
(3) This Bartudoss Bavaji produced a sanad of Sri Seetaram Ranzi Maharaja, the former zamindar of Vizianagaram in Vizagapatam district, granted to one Gopaladass Palahari Bavaji, dated Subhakrutu year, corresponding with A.D. 1782.
This Sanad 285 showed that the said Gopaladass was then a manager of the branch of charity and that this village was granted free from any tax in lieu of the income in the villages of Balaza, Petranivalasa and Serumohannadpuram which were granted originally by the authorities for the support of the charity and which were resumed and incorporated with circar lands.
The sanad explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.
(4) On the whole it appears that this mokhasa was granted for 'Sadavarti ' and for the support of the temple of Sri Jagannadhaswami in Balaga.
There is a Bairagi Mattam in Balaga and a temple of Sri Jagannadhaswami.
This is therefore a charitable grant.
To keep up the object of grant, I think the village may be confirmed on its present tenure.
(5) Column 8, meant for noting the description of the inam, mentioned: 'Granted for the support for the Sadavarti Bairagi mattam in Balaga and of the temple of Sri Jagannadhaswami in the same village now efficiently kept up. ' (6) In column 10, under the heading 'hereditary, unconditional for life only or for two or yihre lives ' is mentioned 'hereditary '.
(7) Column 11 meant for recording the name of the grantor and the year of the grant, mentions, under it, Mafusu Khan Nawab, dated Hijiri 1155.
(8) In column 13, Mandasa Palahari Bairagi is mentioned as the original grantee.
(9) Under column 18, referring to relationship to original grantee or subsequent registered holders, is written 'Sadavarti 286 Bairagi mattam and the temple of Sri Jagannadhaswami in Balaga Trustee Palahara Mahant Barta Dasu Bavaji '.
It is clear from the fact that the grant was considered 'a charitable grant ' that the grant was not taken to be for the purposes of the temple, but was taken to be a grant for the purposes Sadavarti.
This is also clear from the Statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds, as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple 'to some extent '.
There is no suggestion that the temple was in existence in 1739 A. D. when the grant was made.
This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spend on the temple by the Bavaji after the temple had been constructed.
Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry.
He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression 'divine service '.
The 'divine service ' really meant, as would appear from the expression in the other documents of the period 1698 to 1802 A.D., service by way of prayers for the stability and continuity of the State '.
The expression that the grant was 'hereditary ' also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant.
In fact, the sanad granted by Seetaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.
287 This extract therefore supports the case of the appellants even though the name of the temple has been mentioned along with Sadavarti Bairagi.
The confirmation of the grant, tax free, was recommended by the Deputy Collector, Inam Commissioner, under Rule 3, Clause (1).
The order of the Officiating Inam Commissioner dated July 1864 is: 'Confirmed on present tenure ', and column 9 described the tenure as 'tax free '.
Exhibit P 51 is the extract from the Inam Register in the Zamindari estate of Tekkaly in the Chicacole Taluk, Ganjam District, and relates to the village Chinna Zavanapalli.
The report of the Deputy Collector shows that the claim of the then Bavajee was that the village was granted in the name of Gopaladass, trustee and priest of the mattam in Hijari 1165, corresponding to 1752 A.D.
It further records: "It is explained by the Zamindar 's shiristadar on behalf of the Zamindar that this was granted for the support of the mattam and this is not a personal grant.
This was entered in the permanent settlement account as an agrahar.
The object of the grant is to feed Bairagis and etc., who travel between Benaras and Rameswaram or supply victuals clothes and etc.
This branch of charity is known by the name of 'sadavarti '.
The proceeds of this village with the other villages, which granted for the support of the charity are appropriated to sadavarti and to worship the idols in the temple of the mattam.
As this is granted on the whole for the support of the charity branch, it should, I think, be confirmed on its present tenure.
" The entries under the various columns are practically on the lines of the entries in Exhibit P 50.
The entries in this register also support the case of the appellants to the extent that the original grant 288 in 1752 A. D., was to the then Bavajee and was for the purposes of the charity.
Exhibit P 52 is the extract from the Register of Inams with respect to village Vanzangi.
It records very clearly: "The object of this grant is to give 'sadavarti ' to travellers, that is, distributing alms and supplying victuals to travellers.
This grant was made during the reign of 'Alangir Padsha '.
Ever since the Inam is continued undisturbed.
About century ago, the trustees built a temple of Jagannadhaswamy.
Now in addition to distributing alms and giving Sadavarti to Bairagis and others, the idol in the temple is worshipped and annual festivals are made.
It appears that the Trustee is defraying charges to meet the object of the grant and that he is not mis appropriating the proceeds of the Inam in any way.
" The inam was confirmed as a charity grant to Mandasu Sadavarty Charity according to the terms of the grant.
This extract is of great importance as it, in clear terms, mentions that the object of the grant was to give sadavarti to travellers and that it was confirmed as a charity grant to this charity.
It speaks of the erection of the temple and still states that the Trustee was defraying the charges to meet the object of the grant.
This indicates that the expenses of the temple were taken to be incidental to the expenses of the entire sadavarti and that the temple was just an adjunct to the sadavarti institution.
Exhibit P 7, Parwana dated November 15, 1722, corresponding to 14th day of Rabial Awwal, 1135 Hijiri, refers to the grant of this village to Poohari Fakir Sadavarti.
Exhibit P 53 is the extract from the Register of Inams relating to village Ragolu in Chicacole 289 Taluk.
It records: 'In the sanad it was mentioned that the inam was given for the support of fakirs to the original grantee about a century ago.
The other notes in this extract are practically identical with those in Exhibit P 52.
The final order of the Inam Commissioner was also in terms similar, and was 'confirmed to the fakirs the sadavarti charity according to the grant, free, there being no excess.
It is interesting to note that in column 2 (general class to which inam belongs) is noted 'Dewadayam ', i.e., dedicated to God; that in column 8 meant for the description of the inam is noted: 'for the support of Pagoda of Sri Jagannadhaswami in Bondilipuram ', and that the entry in column 11 indicates that Anavaruddin Khan Bahadur made the grant in Hijiri 1171 corresponding to 1754 55 A. D.
It is clear that the note about the land being dedicated to God is wrong in view of the definite statement that the Sanad mentioned that the inam was given for the support of fakirs to the original grantee (Mandasa Palahari Bairagi in Column 13) about a century ago and that it was the trustees of the institution who constructed the temple.
When the temple was constructed by the trustees of the institution, viz., the Sadavarti institution, the original grant could not have been to the temple or to God.
The entries in this extract confirm the construction we have placed on similar entries in Exhibit P 52 and other extracts indicating the grant to the temple.
Exhibit P 54 is the extract from the Inam Register of No. 85 'Tallavalasa in the Taluk of Chicacole in the District of Ganjam.
It is mentioned in this that Pratapa Rudra Narayana Devu granted this village to Falar Gosayi for the support of the 'Bavajee ' or Swami, in Hiziri 1141 which would correspond to about 1747 A. D.
It is also noted in the report that the object of the grant was that the proceeds should be appropriated for divine purpose and that the proceeds were appropriated to the temple and sadavarti.
The note 'for the support 290 of the pagoda of Jagannadhaswami ' in column 8 meant for the description of the inam, again, appears to be an entry made under an erroneous impression.
There was no temple in existence when the grant was made in about 1747 A. D. Exhibit P 55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk dated August 13, 1881.
It mentions, under the heading 'by whom granted and in what year, "the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hiziri 1171 corresponding with English years 1754 55.
It is also noted: the Sanad granted is in existence. ' It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings; they should be restored to him in pursuance of the long standing right.
This means that the firman, which was not forth coming during the inam enquiry, dated from very early time.
It must be noted again that this extract also describes the inam as Devadayam, i. e., dedicated to God.
Again, clearly, this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P 12, a parvana of 1742 A.D., under the seal of Nawab Jafer Ali Khan.
It records: "It has been proved that Mandas, the successor of Poohari (Poojari) Faqir Sadabarti has, per endorsement six kattis of land, free from assessment, in the village of Balaga and etc.
, villages of the said Haveli Sircar, fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers.
Therefore in consideration 291 of the blessings to follow, it has been confirmed as of yore.
" It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as 'service. ' The fact that the Inam Commissioner treated the grant relating to Exhibit P 50 to be in support of Sadavarti and for support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity.
The observations of the Privy Council in Arunachellam 's Case (1) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself.
We have already stated that the 'divine service ' referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.
We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being, constructed a temple and appropriated the income for carrying out the worship of the temple.
No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being.
Exhibits P 52 and P 55 just mentioned that the trustees built a temple of Sri Jagannadhaswami.
The 292 expression 'trustees ' refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such.
There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.
The appellants examined five witnesses to support their case that the Hindu public have no right to offer worship in the temple which is a private temple.
The learned Judges described the statement of Janardhana Prasad Bhatt, P.W. 4, as worthless.
No particular reliance is placed on his statement by the appellants in this Court.
The appellants, however contend that the statements of the other witnesses have been rejected by the High Court for inadequate reasons.
The first witness is Iswara Satyanarayana Sarma, P.W. 1.
He was aged 63 at the time of his deposition in 1949.
He was a Sanskrit and Telugu Pandit in the Municipal High School and practised as an Ayurvedic Doctor.
He has given reasons for the view that the temple is not a public temple.
It is not necessary to refer to them.
His statement, has been rejected as he was considered to be interested in the Mahant who had been his patient and as the statement made by him that people including the sishyas, i.e., the disciples, take permission of the Mahant for worshipping, was considered artificial.
This witness did not state that even disciples had to take permission of the Mahant for worship and so the latter reason was based on an erroneous impression of his statement, The mere fact that the Mahant consults him for his ailments and the ailments of other sadhus is no ground for him to make false statements.
He is not under obligation to the Mahant.
It may be that the Mahant is under obligation to him.
The next witness is P. Kameswara Rao, P.W. 2.
He is aged about 30 years.
He was the 293 Additional Public Prosecutor of Vizagapatam, had been Municipal Councillor for a decade, President of the Co operative Central Bank and resided close to the temple.
He was in a very good position to know about the public worshipping at the temple as a matter of right.
He stated that he never found the public using the temple and that he himself might have visited the temple roughly about hundred times.
He was put a direct question in cross examination and gave a clear cut answer.
He denied from personal knowledge that the place was used as a place of public religious worship and that members of the public who were Hindus had a right of access to the temple for purposes of religious worship.
It may be mentioned that the question also referred to the temple being built as a place of public religious worship and the answer would include a denial of this fact.
It is obvious that the witness could not have known anything about it.
He seemed to have overlooked the significance of this part of the question.
We do not consider that his denying this fact on personal knowledge affects his veracity in any way, and especially, when he further stated that his personal knowledge consisted of three facts: (i) his attending the Rathayatra and seeing that no offerings of harati and dakshina were made; (ii) his not seeing any member of the public entering the temple whenever he entered into the temple; and (iii) whenever he entered the temple, he took the permission of the mahant.
The learned Judges rejected his testimony with this observation: "The evidence of this witness is more like an advocate supporting the case of mahant than that of a witness, who has come into the witness box to speak of facts.
The aforesaid facts based on his personal knowledge afford a very slender foundation for the conclusion which this witness has so boldly asserted in the witness box.
" 294 The expression 'the aforesaid facts ' had reference to the facts on which his personal knowledge was based.
These facts, in our opinion, afford good ground for the view expressed by him that the temple was not a public temple.
He visited the temple so many times, and never saw any member of the public visit it.
He himself took permission from the Mahant when he entered the temple.
Nothing could be better corroboration of his own statement than his own personal conduct in seeking permission from the Mahant.
We do not see any good reason for discrediting his testimony.
The next witness is G. Venkata Rao, P.W. 3, aged 48 years.
He is a chairman of the Municipal Council, Chicacole, Secretary & Vice President of the Co operative Central Bank.
His statement has been considered to be very artificial.
His statement that whenever he visited the temple he asked the permission of the Mahant is good corroboration of his statement that he considered the temple to be a private temple and not a public one.
The facts that the Mahant is also a Municipal Commissioner and consults him occasionally as a doctor, are no good grounds to discredit him.
The last witness the plaintiff No. 2, the predecessor of the appellant No. 2.
He is undoubtedly interested in the success of the proceedings started by him.
But that alone is no reason to ignore his statement altogether.
In fact, his statement should be accepted in view of the support it gets from the statements of the other three witnesses just referred to.
It is very significant, as pointed out by learned counsel for the appellants, that none from the Hindu public of the place has been examined for the respondent in support of its contention that the Hindu public go to this temple for worship as a matter of right.
Quite a good number of people 295 should have been available for the purpose if it was a fact.
The respondent, on the other hand, examined only M. Adinarayana Rao, who had been Inspector of Hindu Religious Endowments Board of the Chicacole division from 1946 to 1948.
He certainly states that the temple in suit is a public temple in which all people can go as a matter of right for worship.
It is a moot question as to how he can make such a statement even if he had seen a number of people entering the temple and worshipping there, which itself is not a fact.
When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple is not sufficient to come to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disallow visitors to the temple, even if it be a private one.
He stated that there were several festivals like Nethroshasevam, the car festival and kalyanam.
In cross examination he had to admit that he had not visited the kalyan festival and did not know when it was celebrated.
This is sufficient to indicate that he is a zealous witness.
He stated that there was an archak, but he could not give the archak 's name.
Ordinarily, it need not have been expected of him to have known the archak 's name.
But, considering that he was an Inspector of the Board and had visited the temple officially also and had to submit a report, it is rather difficult to believe that if he had really found an archak, a priest other than the Mahant and his disciples, he would not have considered it essential for the purposes of his enquiry to know his name.
We see no reason to prefer his shaky statement to the statements of the witnesses examined for the appellants.
296 We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit.
It is admitted by the respondent 's witness that there is a Tulsi plant before the shrine.
It is strenuously urged for the appellants that no public has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondent 's witness in reexamination that generally, in Oriya temples no flag staffs are located and Tulsi plants are grown instead.
The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.
The statement of the respondent 's witness that generally Oriya temples have no flag staffs and have Tulsi plants has significance in one other connection also.
It was said in Mundancheri Koman vs Achuthan Nair (1) at page 408 that in the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments form public charitable trusts.
The presumption is certainly rebuttable.
The evidence in this case sufficiently rebuts it.
The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa.
The presumption with respect to the temple in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated.
We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship.
We therefore allow the appeal with costs throughout, set aside the order of the Court below and 297 restore the order of the District Judge, Vizagapatam, setting aside the order of the Board dated March 28, 1947.
Appeal allowed.

summary:
The Emperor Aurangazeb made certain grants to one Mukuldas Babajee, founder of the institution Poohari Fakir Sadavarthy, for the purpose of his maintenance and to carry on the distribution of Sadavarthy to Fakirs etc.
The sixth head of the institution built a shrine for his private worship.
It was adjunct to the aforesaid institution, and the public had no access to it without the permission of Mahant.
The income from various properties granted to the founder and his disciples had been regularly utilised for the maintenance of the head of the institution and for distributing charities for the Sadhus and pilgrims; a part was spent on the expenses of the worship in the temple.
The Board of Commissioners for Hindu Religious and Charitable Endowments, Madras held that the temple in suit was a public temple.
The sole question for determination was whether this institution was a public temple as defined in the Act. ^ Held, that an institution would be a public temple within the Hindu Religious Endowments Act, 1926, if two conditions are satisfied; firstly, that it was a place of public religious worship and secondly, that it was dedicated to, or was for the benefit of, or was used as of right by the Hindu Community, or any section thereof, as a place of religious worship.
When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple, is not sufficient to come to the conclusion to the temple must be a public temple to which those people as a matter of right as it is not usual for the owner of together temple to disallow visitors to the temple, even if it be private one.
In the present case the description of the temple with respect to its construction, equipment, practices, observances 277 and the form of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.
The temple is not a temple as defined in the Act and it is not used as of right by Hindu Community, or any section thereof, as a place of religious worship.
Held, further that the Inam Register is of great evidentiary value, but that does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself.