judgement:
Civil Appeal No. 104 of 1975 Appeal by special leave from the judgment and order dated the 12th December, 1974 of the Allahabad High Court in Application Paper No. A 53 in Election Petition No. 30 of 1974.
Yogeshwar Prasad and Rani Arora, for the appellant K C. Agarwala and K. M. L. Srivastava, for respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave involves an interpretation of the scope and ambit of section 87 of the Representation of the People Act, 1951, as amended by Act 47 of 1966.
The short point that fails for determination in this appeal is as to whether or not the provision of O. XI of the Code of Civil Procedure can be applied to the trial of election petitions in the High Court by force section 87 of the said Act.
For the purpose of brevity, the Representation of the People Act, 1951 shall be referred to as the Act of 1951 shall the Representation of the People Act as amended by Act 47 of 1966 as 'the Act '.
The circumstances under which this appeal arises may be succinctly stated as follows.
An election for the U.P. Legislative Assembly for 275 Allahabad North Assembly Constituency was held on February 6, 1974 In this election the appellant was a candidate put up by the Congress Ruling party and his election was contested by the first respondent Ram Adhar Yadav who was set up by the Samukta Socialist party.
The appellant was declared duly elected in the said election and the respondent No. 1 was defeated.
The respondent No. 1 filed an election petition being Election Petition No. 30 of 1974 in the High Court of Allahabad some time in April 1974 challenging the election of the appellant on various grounds.
The appellant filed a detailed written statement denying all the allegations made by the first respondent in his petition.
The election petition was assigned to J. M. L,.
Sinha, J. who framed a number of issues on October 4, 1974.
In October 1974 respondent No. 1 filed all application being Paper No. A/53 under O. XI, r. 1 of the Code of Civil Procedure for grant of leave to respondent No. 1 to deliver interrogatories in writing for the examination of the appellant and filed certain interrogatories along with his application.
The appellant filed her objections being Paper No. A/54 to the said application contending, inter alia, that the procedure prescribed under O.XI relating to interrogatories was not applicable to the trial of election petitions in the High Court and was not covered by section 87 of the Act.
The application filed by the first respondent and the objections of the appellant came up for consideration before the learned Single Judge who by his order dated December 12, 1974, held that the provisions of O.XI fully applied to the election petitions and accordingly rejected the objections filed by the appellant.
Hence this appeal by special leave.
257 It appeals that under the Act of 1951 the power to try election petitions was conferred on the Tribunal and section 92 of that Act expressly conferred powers under O.XI of the Code of Civil Procedure on the Tribunal.
The relevant portions of section 92 of the Act of 1951 may be extracted thus: The Tribunal shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters: (a) discovery and inspection; x x x x (g) issuing commissions for the examination or witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
" By the Amendment Act 47 of 1966 this section was, however, deleted and section 90 of the Act of 1951 was replaced by section 87 of the Act which was the same as section 90 of the Act of 1951.
Mr. Yogeshwar Prasad counsel appearing for the appellant has submitted two points before us.
In the first place he contended that the provisions regarding inspection and discovery and interrogatories as contained in O.XI of the Code of Civil Procedure are not an integral part of the procedure in a civil suit but are special powers contained in the Code and cannot, therefore, be made applicable to election petitions which are proceedings of a special nature.
In simplification of this argument it was argued that the history of the English Law as also the Election Law of our country before independence would show that the procedure contained in O.XI of the Code of Civil Procedure was not made applicable to the trial of election petitions.
It is, however, not necessary for us to examine the history of this matter because the Act of 1951 settles the issue.
When the Parliament expressly conferred powers contained in O.XI on the Tribunal under the statutory provision of section 92 of the Act of 1951, it must he presumed to have made a drastic departure from the old law on the subject and particularly the English Law.
In view of this enactment, therefore, it cannot be said that the provisions of our Election Law, particularly in regard to section 92 of the Act of 1951 were in pari materia with the provisions of the English Law on the subject.
In fact section 92 incorporating the entire provisions of O.XI of the Code of Civil Procedure was expressly enacted so that the elected representatives also may be subjected to the same law of the land such as the Code of Civil Procedure as any other citizen.
In these circumstances, we are unable to apply the English Law to the Act in order to hold that the principles contained in O. XI of the Code of Civil Procedure are excluded from the trial of election petitions.
The first contention put forward by counsel for the appellant must, therefore, fail.
258 It was then contended that even though express powers for inspection and discovery were conferred on the Tribunal under section 92 of the Act of 1951, yet by virtue of the amendment under Act 47 of 1956 this express provision was deliberately deleted, which shows that the Parliament intended to give special protection to the elected representatives so as not to compel them to answer interrogatories.
This is no doubt an attractive argument, but on closer scrutiny it does not appear to be tenable.
The argument completely overlooks the object of the Amendment Act 47 of 1966.
By virtue of this enactment a basic change in the trial of election petitions was sought to be introduced.
Before 1966 the power to try election petitions was conferred on the Tribunal which was not a civil court and, therefore, special powers had to be conferred on it.
fact clause (g) of section 92 of the Act of 1951 extracted above clearly shows that the Tribunal was deemed to be a civil court hence there was the necessity of conferring special powers contained in O.XI of the Code of Civil Procedure on the Tribunal to avoid further doubts.
After the amendment of 1966 as the election petitions were to be tried by the High Court, section 87 of the Act which is based on section 90 of the Act of 1951 was considered sufficient to contain the entire procedure to be adopted by the High Court in trying the election petitions which were to be in accordance with the Code of Civil Procedure as far as applicable.
Since the High Court is a court of record and a civil court is not, it was not at all necessary for the Parliament to have enacted a separate section like section 92 of the Act of 1951 and that is why section 92 was considered to be unnecessary in view of the change of forum and was deleted under the amended Act.
From this it cannot be contended that the Parliament intended that the provisions of O. XI of the Code of Civil Procedure 1 should not apply to the election petitions tried by the High Court under the Act.
Counsel for the appellant was unable to cite any authority directly in point.
On the other hand, the view which we have taken in this case, is amply supported by number of authorities of this Court as well as other High Courts.
To begin with, this Court as far back as 1951, while considering sections 90 and 92 of the Act of 1951 observed in Harish Chandra Bajpai vs Triloki Singh(1) thus: "The second contention urged on behalf of the appellants is that if the provisions of the Civil Procedure Code are held to be applicable in their entirely to the trial of election petitions, then there was no need to provide under section 92 that the Tribunal was to have the powers of courts under the Code of Civil Procedure in respect of the matters mentioned therein, as those powers would pass to it under section 90(2).
But this argument overlooks that the scope of section 90(2) is in a material particular different from that of section 92.
While under section 90(2) the provisions of the Civil Procedure Code are applicable only subject to the provisions of the Act and the rules made thereunder, there is no such limitation as regards the powers conferred by section 92.
It was obviously the intention of the legislature to put the powers of the Tribunal in respect of 259 the matters mentioned in section 92 as distinguished from the other provisions of the Code on a higher pedestal, and as observed in Sitaram vs Yograjsingh (A.I.R. , they are the irreducible minimum which the Tribunal is to possess.
(3) It is then argued that section 92 confers powers on the Tribunal in respect of certain matters, while section 90(2) applies the Civil Procedure Code in respect of matters relating to procedure, that there is a distinction between power and procedure, and that the granting of amendment being a power and not a matter of procedure, it can be claimed only under section 92 and not under section 90(2).
We do not see any antithesis between 'procedure ' in section 90(2) and 'powers ' under section 92.
When the respondent applied to the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under section 90(2).
The question of power arises only with reference to the order to be passed on the petition by the Tribunal.
Is it to be held that the presentation of a petition is competent, but the passing of any order thereon is not ? We are of opinion that there is no substance in this contention either.
" The Court pointed out that the object of section 92 was merely to secure powers of the Court in respect of the matters mentioned therein and that there was no antithesis between sections 90(2) and section 92 of the Act of 1951.
Similarly in Sitaram Hirachand Birla vs Yograjsingh Shankarsingh Parihar and others,(1) Chagla, C.J., clearly pointed out that the distinction between the power and procedure was completely artificial and a distinction without any difference.
The learned Chief Justice speaking for the Court observed as follows: "In our opinion, Mr. Kotwal is right, because on principle it is difficult to make a distinction between procedure and the powers of a Court as suggested by Mr. Patwardhan.
The whole of the Civil Procedure Code, as its very name implies, deals with procedure.
In the course of procedure the Court always exercises powers and when the Court is exercising its powers, it is exercising them in order to carry out the procedure laid down in the Code.
Therefore procedure and powers in this sense are really interchangeable terms and it is difficult to draw a line between procedure and powers.
The powers conferred under section 92 is not any substantive power, it is procedural power, a power Intended for the purposes of carrying out the procedure before the Tribunal.
" In a recent decision of the Full Bench of the Allahabad High Court in Duryodhan vs Sitaram and others(2) the Court held that the matters mentioned in section 92 appertain to the procedure for trial, and are also attracted by virtue of section 90(l).
The Court observed as follows: 260 "In my opinion, the matters mentioned in Section 92 appertain to the procedure for trial, and are also attracted by virtue of Section 90(1).
They were separately stated in Section 92 to make them operate inspite of any provision to the contrary in the Act or the Rules, and not with a view to curtail the amplitude of Sec.
90(1).
The provisions of O.9, Rr. 8 and 9, Civil P.C. even if they deal with powers, would be procedural powers and be attracted by virtue of Section 90( 1 ) .
" While dealing with the scope and ambit of s.90 of the Act 1951 this Court in Dr. Jagjit Singh vs Giani Kartar Singh and others(1) observed as follows .
"The true legal position in this matter is no longer in doubt.
Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl.
(a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection.
" A Full in Bench of the Punjab High Court in Jugal Kishore vs Dr. Baldev Prakash,(2) while construing the provisions of section 87 of the Act clearly pointed out that the High Court was a Court of record and possessed all inherent powers of a Court while trying election petitions.
In this connection, Grover, J., observed as follows: "It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition.
The provisions of the Code of Civil Procedure would, therefore, be applicable under Section 87 of the Act.
I am further of the opinion that any argument which could be pressed and adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of record and possesses all inherent powers of a Court while trying election petitions.
" We fuly approve of the line of reasoning adopted by the High Court in that case.
The Rajasthan High Court in Keshari Lal Kavi and another vs Narain Prakash and others(3) followed the Punjab case and has taken the same view.
Some reliance was placed by the learned counsel for the appellant on the decision in Inamati Mallappa Basappa vs Desai Basavarai Ayyappa and others,(4) where this Court held that the procedure contained in O. 23, r. 1 of the Code of Civil Procedure did not apply to election petitions and, therefore, on a parity of reasoning O. C.P.C. also could not be applicable to the trial of election petitions.
261 We are, however, unable to agree with this argument.
The provision contained in O. 23 r. 1 cannot be equated with the provisions of o. XI because the election petition being a matter of moment and concerning the entire costituency there could be no question of the election petition being withdrawn by the petitioner who had filed the same.
This was highlighted by this Court in that case when the Court observed as follows: "Order 23, r.1, sub rule (2), provides for liberty being given by the Court to a party withdrawing or abandoning a part of his claim to file a fresh suit on the same cause of action, if so advised.
in the very nature of things such liberty could not be reserved to a petitioner in an election petition.
x x x x x x On a due consideration of all these provisions, we are opinion that the provisions of o. 23, r. 1, do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission.
" Having regard to the nature of the election Petition, the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must, therefore, be held to be excluded by necessary intendment of section 87 of the Act itself.
This authority therefor, does not appear to be of any assistance to counsel for the appellant.
The matter, however, seams to be concluded by a recent decision of this Court in Virendra Kumar Saklecha vs Jagjivan and others(1) where the Chief Justice speaking for the Court interpreted section 87 of the Act and observed as follows: "Under Section 87 of the Act every election petition should be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits.
Under Section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their super vision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code.
" The relevant part of section 87 runs thus : "(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits :" A bare perusal of this section leads to the irresistible conclusion that election petitions shall have to be tried in accordance with the proce 262 dure applicable under the code of Civil Procedure to the trial of suits.
In other words, election petitions would be tried like ordinary civil suits.
We are unable to agree with counsel for the appellant that O. XI does not form part of the trial of suits but is a special procedure.
This is repelled by a oreference to O. XI of the Code of Civil Procedure itself.
It will appear that O. X relates to the procedure for examination of parties by the Court and O. XI is a part of that procedure, because it provides that where witnesses are not able to appear before the Court personally they are examined through interrogatories.
In these circumstances, therefore, O. XI is as much a part of the procedure as O. X relating to trial of suits in matters regarding summoning of witnesses, documents etc.
In these circumstances it cannot be said that section 87 of the Act either expressly or impliedly excludes the application of O. XI of the Code of Civil Procedure.
In fact we are clearly of opinion that section 87 of the Act is of the widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions (i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (ii) where a particular provision of the Code of Civil Procedure is either expressly or any necessary intendment excluded by the Act.
Subject to these two exceptions, section 87 is very wide in its connotation We, therefore, agree with the learned Single Judge who was trying the election petition that the application for interrogatories was one of the logical steps in aid of the prosecution of the petition and was fully covered by section 87 of the Act.
The second contention raised by counsel for the appellant thus fails.
For the reasons given above, there is no merit in this appeal which fails and is accordingly dismissed with costs.
V.P.S. Appeal Dismissed.

summary:
An application for delivery of interrogatories is one of the logical steps in aid of the prosecution of an election petition and is fully covered by section 87 of the Representation of the People Act, 1951.
C(1) (1) Order XI, C.P.C., forms part of the trial of suits and is not a special procedure.
Order X relates to the procedure for examination of parties by the Court and o. XI, is a part of it, because, it provides for examination through interrogatories, when personal appearance is not possible.
[262A B] (2) Before Act 47 of 1966 amended the Representation of the People Act, 1951, the power to try election petitions was conferred on the Erection Tribunal.
That Tribunal was not a Civil Court but was deemed to be a Civil Court.
Though section 90, as it then stood, provided that every election petition shall be tried, as nearly as may be, in accordance with the procedure under the C.P.C., in order to avoid doubts, the special powers under O. Xl, C.P.C., were conferred on the Tribunal by section 92.
When Parliament has expressly conferred the powers contained in O.XI on the Tribunal, it could not be contended that the principles contained therein are excluded from the trial of election petitions, on the basis of English Law.
[257F H] (3) After the amendment of 1966, as election petitions are to be tried by the High Court, a Court of Record, section 87, which is based on the repealed section 90, is sufficient to contain the entire procedure to be adopted by the High Court in trying election petitions.
Section 87 is of widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions, (a) when the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (b) when a particular provision of the Code is either expressly or by necessary intendment excluded by the Act.
That is why a provision like the repealed section 92 is unnecessary; and it cannot be contended that since Parliament repealed that section, Parliament intended that the provisions of O. XI, C.P.C., should not apply to election petitions tried by the High Court.
[258A E; 269C D] Sitaram Hirachand Birla vs Yograisingh Shankarsingh Parihar and others, AIR 1953 Bom.
293, Durvodhan vs Sitaram and others AIR 1970 All. 1; Jugal Kishore vs Dr. Baldev Prakash AIR 1968 Punj. 152 (F.B.) and Keshari Lal Kavi and another vs Narain Prakash and others, AIR 1969 Raj. 75, referred to.
Dr. Jagjit Singh vs Giani Kartar Singh and others A.I.R. 1966 S.C. 773, and V. K. Sakleha vs Jagjiwan ; , followed.
(4) Merely because in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappu and others ; it was held that the procedure contained in O. 23, r. 1 C.P.C. does not apply to election petitions it could not be contended that O. XI: C.P.C., would not also be applicable to election petitions.
Order 23, r. 1 cannot be equated with the provisions of O. XI.
Having regard to the nature of an election petition which is a matter of moment and concern to the entire constituency the notion of abandonment of the claim or withdrawal is absolutely foreign to the scope of such proceedings and must, therefore, be held to be excluded by the necessary intendment of section 87 itself.
[260H 261 B, D E] 256 ^


judgement:
Civil Appeals Nos. 1656 to 1659 of 1973.
Appeal by special leave from the judgment and order dated the 29th September, 1972 of the Madras High Court in Writ Appeals Nos. 191, 23, 24 & 190 of 1968 respectively.
section Challaswamy and K. Hillgorani, for the appellant.
8 L839SupCI/75 334 A. K. Sen, A. V. Rangam` and A. Subashini, for the respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The die hard 'tax ' 'fee ' dilemma survives, as these appeals, by special leave, attest, long after this Court has dispelled the fiscal legal confusion on the point in a series of rulings.
The cases before us were provoked by a sudden escalation of licence 'fee ' imposed on all homelier by the common appellant, the Maduari Municipal Council (now it is a Corporation, but that makes no difference) (Council, for short).
The scale of fees which, perhaps, merely defrayed the cost of issuing the licence, was moderate to begin with and paid periodically by the respondents who run hotels within the municipal limits; but their present grievance is that the resolution of December 28, 1965, whereby a sharp spurt in the rates of fee was Cr brought about, has been tainted with 'unconstitutionality '.
The authority, to justify the levy qua fee, must render some special services to the category from whom the amount is exacted and the total sum so collected must have a reasonable correlation to the cost of such services.
Where these dual basic features are absent, you cannot legally claim from the licensee under the label 'fee '.
D This Court has, as late as the Salvation Army Case(l) set out the tests beyond doubt.
When the respondents (writ petitioners) challenged the fee raise, the plea in defence first was that the impost was a fee strictly so called, that it was requited by adequate benefits and that the larger lay out on the inspecting staff and allied items, both necessitated and validated the new increase.
However, on later and better reflection, may be, the inspirational source for which was stated to be this Court 's pronouncement in the Liberty Cinema Case(2), the Council rightly abandoned the fee cum quid pro quo formula and anchored itself on the right to exact the higher rate as a 'tax on land and building ' under Entry 49 of List II, in the Seventh Schedule, read with section 321(2) of the Madras District Municipalities Act, 1920 (for short, the Act).
This volte face as it were, was not objected to by the opposite party and the writ petitions and writ appeals were disposed of on that footing.
The learned Single Judge upheld the levy but the appellate Bench upset it.
The appellant Council has journeyed to this Court to repair the blow on its revenue since there are 1,200 and odd hotel keepers similarly situated in the Madurai Municipal limits, although only four have figured as respondents here.
The financial dimension of the decision is, indeed, considerable.
Shri Chellaswamy, counsel for the Council, has been refreshingly fair in his submissions and consistently with the case urged in the High Court to support the levy, has grounded his defence of the 'feehike ' on the taxing power of the municipal body under the Act.
The core of the matter, therefore, is whether the context and text of the statute and other surrounding circumstances warrant the validation of the levy as a tax in essence, be its name what it may.
(1) ; (2) [1965] 2 section C. R. 477.
335 Let us formulate the problems for facility of logical handling.
Agreed, as both parties now are, that this licence fee stands or falls as a tax, the principal question is whether the 'fee ' provided for in section 321(2) of the Act, under which it is collected, is a tax at all, having regard to the anatomy of the Act.
If it can be so regarded, the next point is whether Entry 49 of List II can bring within its constitutional compass the licence fee for running a hotel trade.
Thirdly, if that is permissible, are there other incurable infirmities ? These apart, some matters of subsidiary moment do arise and may be considered in the appropriate sequence.
The initial terminological hurdle in the way of the appellant is that section 321(2) of the Act authorizes the collection of a licence fee in contra distinction to property tax in section 78 of the Act.
Ajoy Kumar vs Local Board(l).
Naturally, Shri A. K. Sen, counsel for the con testants, insisted that the Act had made a deliberate dichotomy between the two types of levy, placed them subject wise in different parts of the statute and meaningfully referred to them as 'tax ' and 'fee ' in sections 78 and 321(2), respectively.
Counsel for the appellant, relying on certain passages in Liberty Cinema, (supra) desired us to slur over the verbal error.
True, mere nomenclature cannot, without more, lead to rejection of the plea of tax, though it is a relevant factor, since, to some extent, Liberty Cinema (supra) has whittled down the efficacy of this circumstance.
This Court there observed, at p. 483: "Now, on the first question, that is, whether the levy is in return for services, it is said that it is so because section 548 (of Calcutta Municipal Act 33 of 1951) uses the word 'fee '.
But, surely, nothing turns on the words used.
The word 'fee ' cannot be said to have acquired a rigid technical meaning in the English language indicating only a levy in return for services.
No authority for such a meaning of the word was cited.
However that may be, it is conceded by the respondent that the Act uses the word 'fee ' indiscriminately.
It is admitted that some of the levies authorised are taxes though called fees.
Thus, for example, as Mitter J (in the High Court, Division Bench) pointed out, the levies authorised by sections 218, 222 and 229 are really taxes though called fees, for no services are required to be rendered in respect of them.
The Act, therefore, did not intend to use the word fee as referring only to a levy in return for services. " (emphasis, ours) We have therefore to have a view of the concerned parts of the Act with a comparative eye on the Calcutta Municipal Act which fell for decision in Liberty Cinema (supra).
Every local authority, under the relevant statute, has the power to tax, so as to finance the various welfare activities it is expected to fulfil.
Similarly such local bodies also exercise the police powers of the State to the extent they are vested (1) ; 336 in them by the State law for the purpose of controlling, regulating and proscribing operations of individuals which may need to be conditioned by licences and permissions or prohibited in public interest because they are noxious or dangerous.
Towards these ends, licences and fees for services, if any, rendered may be prescribed.
The Madras Act, like other similar statutes, embraces both types of activities in a systematized way.
Thus Taxation and Finance are covered by Part 1 III while Public Health Safety and Convenience, comes under Part IV, Procedure and Miscellaneous, which include general provisions regarding licences and permissions, are clubbed together in Part Vl.
Section 78, empowering property tax levy, falls in Part III (Taxation and Finance), while section 321, relating to licence fees, is located in Part VI.
The scheme thus separates issue of licences and levy of licence fees from taxes on property and other items.
Prima facie, in the absence of other compelling factors, to lug in a taxing provision into Part VI may, therefore, lead to obscurity and confusion.
The Calcutta Municipal Act, 1951, also has some scheme of sorts and deals with Finance in Part III, Taxation in Part IV and Public Health, Safety and Convenience in Part V.
In the same Part, Chapter XXVI deals with a miscellany of matters like Inspection and Regulation of Premises, and of Factories, Trades and Places of Public Resort.
Section 443 deals with licensing and control of theatres, circuses and places of public amusement.
Strangely enough, section 548(1) which relates to 'licence and written permission ' also empowers in addition to any other matter required to be specified under any other Section of this Act (a) * * * * (b) * * * * (c) * * * * (d) * * * * (e) the tax or fee, if any, paid for the licence or written permission.
" F There is thus in section 548 an extra power specifically conferred to levy tax or fee, which is significantly absent in the Madras Act (We are aware there is some obscurity here because cinema licensing is provided for earlier in section 443).
It is this provision of the Calcutta Act (section 548) which fell for construction before this Court in Liberty Cinema (supra).
While one may discern a broad scheme in that Act, there is some wobbling in the sense that a power to tax is oddly placed in a Chapter primarily concerned with licences and permissions.
The Madras Act, on the other hand, speaks with more precision and relegates licences and licence fees to a Part different from Taxation and Finance.
The procedure for each is also delineated separately.
For these reasons we refuse to aceede to the contention that 'fee ' in section 321 (2) is a tax.
Shri A. K. Sen has cited a catena of Madras cases, spread over several decades, where, under this very Act, fee has been interpreted as fee with a tag of special services in lieu of such payment.
He has 337 further pressed the drafting indifference while using the words 'fee ' and 'tax ' in s.548 of the Calcutta Act to repel the application of the observations in Liberty Cinema (earlier quoted) to the provisions of the Madras Act.
In the latter, the contrast is boldly projected not only in the phraseology but in the chapter wise dealing with the two topics.
We feel the force of this submission.
Shri Chellaswamy sought to counter the contention based on the location of s.321 in a Part which has nothing to do with taxation.
In Liberty Cinema (supra) this Court had occasion to warn against reaching any conclusion, when there is a tax fee conflict based on the col location of subjects in a statute or the placement of a provision under a certain rubric as clinching.
What is telling is the totality, not some isolated indicium.
A short cut is often a wrong cut and a fuller study of the statute to be construed cannot be avoided.
Sarkar, J. (as he then was), in Liberty cinema (supra), observed at p. 488: "It was also contended that the levy under s.548 (of the Calcutta Municipal Act) must be a fee and not a tax, for all provisions as to taxation are contained in Part IV of the Act, while this section occurred in Chapter XXXVI headed 'Procedure ' in Part VIII which was without a heading.
It was pointed out that Part V dealt with 'Public Health Safety and Convenience ' and section 443 which was included in Chapter XXVI contained in this Part was headed 'Inspection and Regulation of Premises, and of Factories, Trades and Places of Public Resort '.
A cinema house, it is not disputed, is included in the words 'Places of public resort '.
It was, therefore, contended that a levy outside Part IV could not be a tax and hence must be a fee for services.
This contention was sought to be sup ported by the argument that s.443 occurred in a Part concerning Public Health, Safety and Convenience and therefore the intention was that the levy authorised by the section would be in return for work done for securing public health, safety and Convenience and was hence a fee.
We are wholly unable to accept this contention.
Whether a particular levy is a fee or tax has to be decided only by reference to the terms of the section as we have earlier stated.
Its position in the Act cannot determine its nature; an imposition which is by its terms a tax and not a fee, which in our opinion the present imposition is, cannot become a fee by reason of its having been placed in a certain part of the statute.
The reference to the heading of Part V can at most indicate that the provisions in it were for conferring benefit on the public at large.
The cinema house owners paying the levy would not as such owners be getting that benefit.
We are not concerned with the benefit, if any, received by them as members of the public for that is not special benefit meant for them.
We are clear in our mind that if looking at the terms of the provision authorising the levy, it appears that it is not for special services rendered to the person on whom the levy is imposed, it cannot be a fee wherever it may be placed in the statute.
A consideration 338 of where ss.443 and 548 are placed in the Act is irrelevant for determining whether the levy imposed by them is a fee or a tax.
" So we do not rest our conclusion solely on the location of section 321 in a different Part from Taxation, while we recognise it as an indicator, among a variety of considerations of course, when drafting precision is absent, judicial caution has to be alerted.
To recapitulate, in the Madras Act, Chapter VI of Part III is devoted to Taxation and Finance.
Section 78(1)(a) authorizes levy of property tax.
The section sets out the other taxes a Municipal Council may levy Section 78(3) together with a proviso, contains the procedural prescriptions for imposing taxes.
Admittedly, there has been no compliance with this procedure and, if such conformance is mandatory, as it is, the case of tax set up by the appellant collapses (Vide: Atlas Cycle Industries vs Haryana(1).
Whether some minor defect or deficiency will defeat the validity of the tax is moot but since here there is a total failure to adhere or advert to the procedure in s.78, we need not consider hypothetical shortfalls and their impacts.
Counsel for the appellant resourcefully urged that when two constructions are possible, we should opt in favour of validity since law leans towards life and must sustain, not stifle it.
The statute, other things being equal, must be interpreted us res magis valeat gaum pareat("): see Broom 's Legal Maxims ( 10 ed. ) p. 361, Craies on Statutes (6th ed.) p. 95 and Maxwell on Statutes (11th ed.) p 221 In his submission it is possible to uphold the 'levy ', miscalled 'fee ', on the basis that it is a tax.
The argument is that ignoring the placement of section 321 (2) in Part VI and blurring the precision of the word 'fee ' used, we can still look at the pith and substance of the matter and regard it as a 'tax on land and buildings ' provided for in Entry 49, List II of the Seventh Schedule.
He relied on Ajoy Kumar (supra) where also a landholder who was holding a market on his land was directed to take out a licence and pay Rs. 600/ per year as licence fee, challenged the validity of the claim on the score that the State had no power to tax markets.
Repelling this contention, this Court held that the use to which the land was put furnished sufficient nexus for the Legislature to impose a tax on land.
In that connection, the following observations lay down the guide lines: "It is well settled that the entries in the three legislative lists have to be interpreted in their widest amplitude and there fore if a tax can reasonably be held to be a tax on land it will come within entry 49.
Further it is equally well settled that tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the com petence of the State legislature on the ground that it is a tax on income: (See Ralla Ram vs The province of East Punjab: It follows therefore that the use to which the land is put can be taken into account in imposing a tax (1) ; (2)Quoted in Liberty cinema: P. 484. 339 on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use to which the land is put." (p. 49).
x x x x x x "It will be seen from the provisions of these three subsections (sub sections
(1) to (3) of section 62 of the Assam Local self Government Act l953 Act 25 of l953) that power of the board to impose the tax arises on its passing a resolution that no land within its jurisdiction shall be used as a market.
Such resolution clearly affects land within the jurisdiction of the board and on the passing of such a resolution the board gets the further power to issue licences for holding of markets on lands within its jurisdiction by a resolution and also the power to impose an annual tax thereon." (p.49) x x ".
x x x x x ".
section
62(2) which used the words 'impose an annual tax thereon, clearly shows that the word 'thereon ' refers to any land for which a licence is issued for used as a market and not to the word 'market '.
Thus the tax in the present case being on land would clearly be within the competence of the state legislature." (p.5l) Generously following the line of thinking presented by Shri Chellaswamy, based on Ajoy Kumar (supra) we find difficulty in applying its ratio to section 321 (2).
There the tax was on land and the expression 'thereon ' underscores this idea.
Once the tax is on land, the link between the tax and the land user like running a market or hotel based on the let ting value is good, but in the present case there is nothing to indicate that it is a tax at all.
Secondly, the phraseology does not suggest that it is a tax on the land or the building.
, on the other hand.
it is on the licence fee for plying a particular trade.
It is not possible to blink at this vital distinction between Ajoy Kumar (supra) and the persent case.
Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax at any particular rate it chooses.
The user of the land or building as a restaurant or hotel being the link as explained above, the fact that there is a tax on all property within the municipality does not mean that this local body cannot levy an additional tax or surcharge on the land or building if put to a particular specialist use.
We see no impediment in the municipal authority taxing hotels at a certain rate exercising its power to impose property tax provided there are no other legal impediements in the way.
We are not pursuing the existence or otherwise of other impediments because that does not fall for our consideration in this case.
Shri A. K. Sen is right is his submission that unlike in the Assam Act considered in Ajoy Kumar (supra) in the present case we do not even find the expression 'tax ' used.
The Municipal resolution might have been saved had we been able to spell out a taxing power on property from s.321 (2) of the Act.
For, there is no gainsaying the state 's right to tax land and buildings 340 and the nexus between the tax and the power may be land use.
Since A running a restaurant or cinema house is clearly a use of building, a tax thereon, based on such user, is constitutionally impeccable.
Such is not the case here.
Thus the plea that section 321 (2) lends itself to being regarded as a tax, indifferently described as fee, breaks down for two reasons.
When the Legislature has carefully provided in s.78 (3) for previous invitation and consideration of objections to enhancement of tax levies, resort to the device of tax disguised as fee, under s.321 (2), may not require any such procedural fairness and discipline and thus will frustrate the processual protection written into the law in regard to fiscal measures.
Secondly, Schedule V, with which s.321 is directly linked, sets out a host of petty and lucrative ventures all of which, theoretically, cannot be carried on except on land or buildings.
Can it be that some flimsy or casual connection with terra firma will furnish the legal nexus between the tax imposed and the land on which the work is done ? For example, washing soiled clothes is an item in Schedule V.
It is straining judicial credulity to snapping point to say that such trivial user justifies a tax on the land when washing is done.
Running a hotel or market or permanent circus or theatre may stand on a different footing.
The com monsense of the common man is the best legal consultant in many cases and eschewal of hyper technical and over sophisticated legal niceties helps the vision.
We cannot list out what, in law, will serve as a nexus between land and tax thereon but, in a given case like in a hotel business, land use may easily be discerned.
The snag is that in the present appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the contention that the impugned resolution was an innocent tax on property.
The case falls between two stools.
It is not a fee ex concessionis it is not a tax ex facie.
We further repel the request to read licence fee in section 321 (2) as land tax into every item of activity set out in Schedule V, from washing soiled clothes on a broad stone to using a central place as a posh restaurant.
The cumulative result of the multiple submissions we have been addressed is that the impugned resolution is invalid.
We do not bar the door for the Municipality or the State to pursue other ways to tax hotel keepers, acting according to law and under the power to tax in Entry 49, List II, of the Seventh Schedule, while dismissing the appeals The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably.
Moreover, the battle is between a local authority which is in need of financial resources to fulfil its functions and a host of hoteliers who flourish in private business.
Bearing in mind the conspectus of circumstances, we regard this case as one where the proper order will be that parties do bear their own costs throughout.
V.P.S Appeals dismissed.

dataset_name: IN-Abs

summary:
The appellant increased the licence fee imposed on hoteliers respondents under s.321 (2), Madras District Municipalities Act, 1920, and they challenged the increase.
The appellant justified the increase on the basis that the fee under the section is a tax and falls under "tax on land and building ' in Entry 49, List II, VII Schedule of the Constitution.
The High Court held in favour of the respondents.
^ Dismissing the appeal to this Court, HELD: (l) The appellant would be competent to impose a property tax at any Particular rate it chooses.
the user of the land and building as a restaurant or hotel furnishing sufficient nexus for the legislature to impose a tax.
[339H, 340A] Ajoy Kumar vs Local Board ; , referred to.
(2) But the fec imposed under section 321(2) in this ease is not a tax.
[336G] (a) Section 321(2) authorises the collection of a fee in contradiction to tax.
1335B] (b) Section 321 is in a part of the Act different from the part dealing with taxation.
While the nomenclature of the levy or the location of a section in the Act is not conclusive.
they are relevant factors.
for deciding whether the fee imposed is a tax or not.
[335 CD] Liberty Cinema Case ; , referred to.
(c) Section 78(1A) authorises the levy of property tax.
Section 78(3) contains the mandatory procedural prescriptions for imposing taxes.
When the legislature has carefully provided in the sub section for previous invitation and consideration of objections to enhancement of tax levies, resort to section 321(2) to impose a tax as a fee would frustrate the processual protection written into the law in regard to fiscal measures, [338 BCE] (d) Schedule V with which section 321 is directly linked sets out a number of ' petty occupations all of which, theoretically cannot be carried on except on land or in buildings.
If the licence fee in section 321(2) is read as land tax the fee in relation to every item of activity set out in the Schedule would be tax on the basis of the trivial activity furnishing the legal nexus between the tax and the land.
But, it would be straining the language to justify the imposition of a tax on the land, on the basis of such a flimsy or casual connection


judgement:
N: Criminal Appeal No. 119 of 1971.
Appeal by Special Leave from the Judgment and Order dated the 17th February, 1971 of the Bombay High Court in Criminal Appeal No. 1371 of 1969.
F. section Nariman, K. J. John and Shri Narain of M/s J. B. Dadachanji & Co. for the appellant.
section B. Wad and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by BEG, J.
The appellant was charged in the Court of Presidency Magistrate of Bombay as follows: "That you on 3 12 1968 at 8 a.m. at Bandra, in contravention of provisions of Section 2(1)(f) and 7(i) of the Prevention of Food Adulteration Act, sold 450 grams of Til seeds to the Food Inspector and that the Til seeds were unfit for human consumption, and thereby committed an offence under sec. 16(1)(a)(1) of the same Act and within my cognizance".
The two witnesses produced to support this charge were D. P Tambe and section P. Gaydhani.
D. P. Tambe (P.W. 1), a businessman, said that he had gone.
to "a shop to make purchases", without giving either the name of the shop or approximate date or time of his visit.
Under cross examination, he said that he did not know whether it was a foodgrain shop.
He said that he saw the complainant pick up a jar, open it.
and look at its contents.
He deposed that there was "some talk" between the complainant and the accused The complainant was 329 then said to have come up to and told this witness that he would be taking "some commodity from the jar" which would be sent for analysis.
After that, the complainant, it was alleged, asked for some Til seeds.
Thereupon, according to this witness, "some persons in the shop found Til seeds in three plastic bags and gave the bags to the Inspector".
He said that the Inspector (i.e. the complainant) sealed the packets and that the witness signed the packets.
He deposed: "Cash Memo was prepared by some persons in the shop.
Inspector paid money to accused No. I. Accused No. I was with the Inspector all the while".
His cross examination showed that he could remember nothing material.
He did not even remember who made the cash memo and whether anyone signed it in his presence.
He said he only thinks that he signed it.
To almost every question under crossexamination his answer was that he does not remember.
Even after making every possible allowance for a memory which could fade with lapse of time, his version was extra . ordinarily nebulous and noncommittal.
The principal witness in the case was section P. Gayadhani, P.W 2 the prosecuting Food Inspector? who stated that, after having gone into the grocery shop at 731 Hill Road, Bandra, he disclosed his identity to the accused and demanded 450 grams of Til seeds for which he paid Rs. 1.35.
He said that he himself divided this quantity into 3 parts each of which was put into a separate plastic bag and then sealed and labelled by him.
He claimed to have obtained the signatures of the accused in the presence of Tambe whom he described as "the independent witness Tambe".
Under crossexamination.
He said that he took the signatures of Tambe on the cash memo but not on the packets, although he had deposed in his examination in chief that Tambe had signed the sealed packets also Incidentally, the seals of the packets were found broken due to what the Inspector described as 'handling".
He admitted that no signature of the witness was obtained on the counterfoil of the cash memo.
He stated: "Black Tils can be used for human consumption.
It is not correct to say they are used only for Pooja.
It is not true that the accused told me that he had only black Tils used for Pooja.
It is not true that the accused told mc that he will write on the cash memo the purpose for which black Tils are sold".
The accused appellant denied the presence of Tambe and asserted that the had clearly told the Food Inspector that the black Tils in his shop were only meant for Pooja and not for human consumption.
Apparently, as the Inspector wanted to buy these til seeds despite this information given to him, the accused sold them to him and signed the necessary papers.
The accused produced no witness in defence.
The real dispute on facts revolves round the question whether the black Tils were sold to the Food Inspector specifically for the purpose of Pooja after the accused had told him that they were not meant for human consumption, or, they were sold without giving such information to the Food Inspector.
In order to judge whether the 330 Food Inspector 's version or the accused 's explanation was more credible, it became necessary to examine the evidence of the only witness produced to corroborate the food Inspector.
We have considered the question whether it actually corroborates or contradicts the Food Inspector 's account.
It seems to us that there is such vagueness and apparent contradiction in the pictures conveyed by Tambe and the Food Inspector that Tambe 's testimony tends to demolish more than to corroborate the version of the Food Inspector on points of fact in issue.
k indicates that Tambe was probably not present at the time when the seeds were sold by the appellant to the Food Inspector.
The Presidency Magistrate, after examining the whole evidence,had concluded that the version of the appellant, that there was a tall; about the actual purpose for which the Til seeds at his shop were meant, was more probable because it was supported by what the appellant had written on the cash memo when he sold these Til seeds 'o the Food Inspector.
After all, the appellant, who had a grain shop, must have known that the Food Inspector could prosecute him if he kept adulterated foodstuffs for sale for human consumption.
If, as the analyst 's report showed, these black Til seeds were full of cocoons, visible to the naked eye, nobody could be expected to purchase them for consumption as food.
The learned Magistrate, after finding that it was more probable that there was talk about the purpose for which the Til seeds were kept in the accused 's shop.
despite the Food Inspector 's denial about such talk, held that the purpose for which the.
Til seeds were kept was quite immaterial.
It is true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the hereinafter referred to as 'the Act ').
It is enough if an article of adultered food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of any rule made there under.
Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what Was stored or sold was `food '.
The charge was that the Til seeds sold were unfit for human consumption.
This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for human consumption.
Recently, this Court has held in Bhagwan Das vs Delhi Administration,(1) that, although mens rea, in the ordinarily understood sense, may not be needed to be proved in such cases, yet, the purpose for which articles of food covered by the Act are manufactured, distributed or sold was that they `.should reach the consumer to be used as food".
Thus, the use` the article sold was not entirely irrelevant.
It is more correct to say that it is presumed from the nature of the article itself or the circumstances and manner of offering it for sale.
Where circumstances raise a genuine doubt on the question whether what was kept by a seller was "food" at all, this must be resolved (1) A. 1.
R. # 1318 331 by evidence in the case.
After all, if what is stored or sold in a shop was neither "food" nor meant to be so used could a person be prosecuted on the ground that he sold it in an adulterated condition ? It was contended on behalf of the appellant that the whole object of the Act was to prevent adulteration of "food" meant for Human consumption.
Our attention was invited to a passage from Pyare Lal etc.
v, New Delhi Municipal Committee & Anr(1), where this Court said: ``The object of this Act WAS to ensure that food which the public could buy was inter aha prepared, packed, and stored under sanitary condition so as not to be injurious to the health of the people consuming it".
Section 2.
sub.s.(v) of the Act lays down: "(V) 'food ' means any article used as food or drink for human consumption other than drugs and water and includes (a) any article which ordinarily enters into,or is used in the composition of preparation of human food, and (b) any flavouring matter or condiments"; Hence, where Section 7 prohibits manufacture,sale or storage or distribution of certain types of food` ', it necessarily denotes articles intended for human consumption as food.
It becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise this question.
It is self evident that certain articles, such as milk, or bread, or butter, or foodgrains are meant for human consumption as food.
These are matters of common knowledge.
Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered for sale.
What is the position in this respect about black Til seeds with which we are concerned here? It is submitted that it is a matter of common knowledge that black Til seeds are not used as food.
Even if this be true, it is not so widely known a fact that we could take judicial notice of it.
It is also urged that, when the case of the appellant, supported by his cash memo, is that the particular black '`Til" seeds where meant to be sold only for pooja for being burnt like incense or thrown into fire in the course of pooja.
it cannot be said that this case had been repelled by the mere statement of the Food Inspector that they can be used as food also.
Such a statement amounted at least to a partial admission that they arc used for Pooja.
Therefore, it is urged, they could have been kept for the purpose of being sold 11 only as a substance used for pooja and not as human food.
It is pointed out that there is nothing in evidence on this .question, to (1) ; @ 755.
332 dislodge the statement of the accused.
We find no evidence on record to show the actual manner in which such seeds are used in the course of Pooja.
Therefore, the view of the High Court that they could be consumed by people after the performance of pooja rests on bare conjecture.
There had to be credible evidence to show that black; til seeds are ordinarily used as food.
If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use.
We are left in doubt on this question on the evidence in this case.
We think that the appellant must get the benefit of that doubt.
As already indicated above, we are not impressed by the nature of the evidence led by the prosecution.
We cannot entirely ignore the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with.
We think that it is more likely, for the reasons already given by us, that Tambe was not there ll at all to witness the occurrence.
If that be so, the evidence of the prosecuting Food Inspector, who said that Tambe was there, cannot be implicitly relied upon in this case.
It is quite unsafe to base the appellant 's conviction on such shaky foundations.
Accordingly, we allow this appeal, set aside the conviction and sentence of six months ' rigorous imprisonment and fine of Rs. 1,000/ , and in default, further rigorous imprisonment for two months, imposed upon the appellant.
the appellant who is on bail need not surrender.
His bail bonds are discharged.
The fine, if realised.
shall be refunded to him.
P.M.P. Appeal allowed.

summary:
The appellant was charged under section 16(1)(a)(1) of the Prevention of food Adulteration Act, for contravening section 2(1)(f) and 7(1) of the said Act The Food Inspector purchased black Tils from the appellant.
P.W. 1 Tambe was unable to give either the name of the shop or approximate date modity by the Food Inspector from the appellant and taking of the sample.
Tambe was unable to give either the name of the shop or approximate date or time of his visit.
He WAS also unable to say whether the shop of the appellant was a foodgrains shop.
Timbe was unable to remember who made the cash memo and whether any one signed the cash memo in his presence.
Tambe could remember nothing material and he was non committal.
The Food Inspector in his deposition stated that the signature of Tambe was taken on the cash memo but not on the packets although in the examination in chief he stated that Tambe had signed the sealed packets also.
The seals of the packets were found broken due to what the Inspector described as "handling".
He admitted that no signature of the witness was obtained on the counterfoil of the cash memo.
He stated that black; Tils can be used for human consumption and further stated that it is not correct to say that it is used only for Puja.
The appellant denied the presence of Tambe and asserted that he clearly told the Food Inspector that the black; Tils in his shop were meant for Puja and not for Human consumption.
The Presidency Magistrate after examining the whole evidence held that the version of the appellant that there was a talk about the actual purpose for which the Til seeds at his shop were meant was more probable because it was supported by what the appellant had written on the cash memo when he sold the Til seeds to the Food Inspector.
The Magistrate also held that the Analyst 's report showed that the black til seeds were full of cocoons visible to the naked eye and nobody could be expected to purchase them for consumption as food.
However, the Magistrate held that the purpose for which the Til seeds were kept was quite immaterial.
Tho appellant was convicted by the Magistrate and the conviction was confirmed by High Court.
On appeal to this Court by Special leave it was contended by the appellant.
(1) That black Tils were sold to the food Inspector specifically for the purpose of Puja and that he was told by the appellant that these were not meant for human consumption.
(2) It is the duty of the prosecution to prove beyond reasonable doubt that what was sold was food.
The whole object of the Act is to prevent adulteration of food meant for human consumption.
(3) It is a matter or common knowledge that black Til seeds arc not used as food.
^ HELD: Allowing the appeal: 1.
It is true that mens rea in the ordinary or usual sense of this Word is not required for proving an offence defined by section 7 of the Act.
Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
The use of the article sold was not entirely irrelevant.
In many eases, it can be presumed from the nature of the article itself or the circumstances 328 or manner of offering it for sale whether the food was for human consumption Where circumstances raise a genuine doubt on the question whether what was kept by a seller was food at all this must be resolved by evidence in the case Where section 7 prohibits manufacturer, sale or storage or distribution of certain types of food, it necessarily denotes articles intended for human consumption as food.
It is the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption is food whenever, reasonable doubts arise on this question.
It is self evident that certain articles such as milk, or bread or butter or foodgrains are meant for human consumption as food.
There are matters of common knowledge.
Other articles may be meant for human consumption from representations made about them `from circumstances in which they are offered for sale.
[330 E H, 331 D F] 2.About the use of black Tils no judicial notice can perhaps be take of its special purposes in Gujarat.
The Statement of tile Food Inspector that the can be used as food also amounted at least to a partial admission that they are used for Puja.
There is nothing in evidence to dislodge the statement of the accused.
[331 F H, 332A] 3.
The view of the High Court that the Tils could be consumed after the performance of Puja rests on bare conjectures.
[332A] ^ HELD FURTHER : We are not impressed by the nature of evidence led by the prosecution It is Likely that Tambe was not present to witness the occurrence.[332C]


judgement:
N: Criminal Appeal No. 116 of 1971.
Appeal by special leave from the Judgement and order dated the 27th November, 1970 of the Delhi High Court in Crl.
Appeal No. 35 of 197().
Uma Datta, for the appellant.
Govind Das and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment of the High Court of Delhi upholding the conviction of the appellant under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act and section 161, Penal Code, recorded by the Special Judge, Delhi.
The facts of the prosecution case are as follows: The complainant, section K. Jain, manufactures rubber motor parts in his factory at Shahdara.
On his application, the Delhi Electric Supply Undertaking at Gandhinagar sanctioned a power connection for his factory. 'l` 'he complainant deposited the estimate of expenses under the 9 L839 Sup.
CI/75 350 terms of the sanction.
In spite of it, for a period of four months, no A steps were taken by the employees of the Undertaking to instal the poles and give the connection.
section P. Gupta, an Inspector of the Undertaking approached the complainant and solicited a bribe of Rs. 125/ in consideration of giving the connection.
lt was settled that Rs. 25/ would be paid on June 2(), 1968 and the balance of Rs. 100/ after the electric connection.
The complainant had no intention to pay the bribe.
Consequently, he contacted section K. Katoch, Deputy Superintendent of the Anti Corruption Police on June 20, 1968 at about 1 p.m. and apprised the latter about the demand of the bribe by Inspector Gupta.
The Deputy Superintendent recorded the complainant 's statement, exhibit P.W. l/A.
He then co opted Daya Nand Dua (PW2) and Bharat Prakash Khurana (PW 3), two clerks from the office of the Deputy Commissioner, and formulated a scheme for entrapping Gupta. 'the Police party reached the factory of the complainant at about 3.05 p.m.
The complainant and the Panch witnesses went inside while the Police officers waited outside.
The complainant received a message from Gupta through a Lineman that instead(l of the 20th, he would be coming on the following, day, that the installation of poles at the site had commenced and the complainant would be required to pay more amount.
The complainant conveyed this information to D.S.P. Katoch.
On June 21, 1968, at about 10.15 a.m., Gupta came to the factory, along with his gang of labourers and started the installation work.
Gupta informed the complainant that he would return to the factory either personally or send somebody else to collect the amount of Rs. 100/ at about 2 p.m.
The complainant passed on this information also, to the D.S.P. Thereafter the D.S.P. along with the aforesaid witnesses and others came to the complainant at about 11.30 a.m. and settled the details of the trap.
The complainant produced one currency note of the denomination of Rs. 100/ .
The D.S.P. noted its No. and.returned it to the complainant with the direction that he should pay it to Gupta.
Gupta however did not turn up at 2 p.m.
Instead, the appellant, a permanent labourer working under Gupta, came to the factory and told the complainant that he had been sent by Inspector Gupta and that the money be given to him.
The complainant said that the appellant should send Gupta to receive the money.
The appellant reiterated that he had been deputed by Gupta to collect the money and the same be given to him.
Thereupon the complainant handed over the currency Note of Rs. 100/ (exhibit P l) to the appellant in the immediate presence of P.Ws. 2 and 3.
The appellant put the note in the pocket of his pants.
On receiving the agreed signal, the D.S.P. and his companions rushed in and recovered the currency note (exhibit P l) from the person of the appellant.
The D.S.P. then sent a report to the Police Station on the basis of which a case was registered.
The appellant was arrested.
Subsequently, on 22 6 1968, Gupta was also arrested.
After obtaining the necessary sanction, the appellant and Gupta both were sent up for trial before the Special Judge, Delhi who acquitted Gupta but convicted the appellant and sentenced him to one year 's rigorous imprisonment.
Examined under section 342, Cr.
P.C. the appellant admitted that at the material time he was a permanent labourer (Mazdoor) of the D.E.S.U. 351 working in Shahdara Zone.
He gave this account of the circumstances in which he had received the currency note (exhibit Pl) from the complainant: "At about 12 30, I had come down from the first floor of my office and was going to my house to take my meal in the Hotel.
I was called by Gupta.
He was standing near the boundary wall.
He inquired from mc as to where I was going.
l told him that l was going to take my food.
He directed me that after taking my food I should visit the complainant s factory where the labour was working and told me to ask Jain to pay the money which Guptaji had demanded.
I did not know what sort of money it was and for what purpose it was to be paid by section K. Jain and to be taken by Gupta.
accused.
One Mitter Sell was also present at that time when this talk took place between me and Gupta accused.
I accordingly, after taking my food went to the complainant s factory and checked the work of the labour and then went to the complainant and asked him to pay me the money which had been demanded by Guptaji.
Complainant told me to send Guptaji but I told him that he had asked me to bring the money.
He therefore paid me a, currency note of Rs. 100/ without disclosing anything that this was bribe money to be paid to Gupta co accused.
" He further admitted that soon after the collection of this amount from the complainant, the D.S.P. came there with his party and recovered the same currency note from his possession.
He added that he was only a labourer and was not in a position to show any favour, whatever, to the complainant.
He did not know that the note was bribe money.
He claimed to be all innocent carrier.
In defence, he examined Mitter Sen (DW 1) who corroborated the appellant 's version as to how Gupta had instructed the appellant to collect and bring the money from the complainant.
Two charges, one under section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act and the other under section 161, Penal Code were framed against the appellant.
The charges were in the alternative and it was stated therein that the money was obtained by him either for him self or for Gupta, or for both.
The courts below have convicted the appellant mainly on the ground that proof of receipt of Rs. 100/ (currency note) by the appellant from the complainant raises a presumption under section 4(1) of the Prevention of Corruption Act against him and the appellant has not been able to rebut that presumption.
Section 4(1) of the Prevention of Corruption Act reads: "Wherein any trial of an offence punishable under section 161 or section 165 of the Indian PenaI Code (or of an offence referred to in clause (a) or clause (b) of sub section (1) of section 5 of this Act punishable under sub section
(2) thereof, it is proved that an accused person has accepted or obtained, or 352 has agreed to accept or attempt to obtain, for himself or for A any other person, any gratification (other than legal remuneration or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
" From a reading of the above provision it is clear that its operation, in terms, is confined to any trial of an offence punishable under section 161 or section 165, Penal Code or under clause (a) or (b) of section 5(1) read with sub section (2) of that section of the Act.
If at such a trial, the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in section 161, Penal Code.
The presumption however, is not absolute.
It is rebuttable.
The accused can prove the contrary.
The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case.
Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross examination or otherwise.
But the degree and the character of the burden of proof which section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under section 101, Evidence Act rests on the prosecution.
While the mere plausibility of an explanation given by the accused in his examination under section 342, Cr.
P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable.
In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt see Mahesh Prasad Gupta vs State of Rajasthan(1).
Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under section S (1) (2) of the Prevention of Corruption Act and section 161, Penal Code.
The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it.
If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born.
Let us now consider the facts of the present case in the light of the principles enunciated above.
The testimony of its star witness, section K. (1) A. I. R. 353 Jain (P.W. 1) is that it was Inspector Gupta who had demanded that money as a motive or reward tor expediting the installation of the power connection and that the money was handed over to the appellant only for transmission to Gupta in pursuance of the latter 's instructions given to the complainant earlier in the morning.
It is not the case of the complainant that the appellant had ever demanded any bribe from the complainant, or that the appellant was present on any occasion on which Gupta had demanded the bribe.
Nor has it been shown by the prosecution that the appellant was in any way officially concerned with the installation of the poles or the giving of the electric connection.
At the material time according to the appellant he was working as a mere labourer or Mazdoor in the first floor of the D.E.S.U. Office at Shahdara.
This fact is not controverted by the prosecution.
Of course, it is in evidence that on coming to the factory of the complainant at about 2 P.M., the appellant first went to see the labour working at the installation site and then went to the complainant to receive the money saving that he has been sent by Gupta to fetch it.
Mr. Gobind Das, the learned Counsel for the State contends that this conduct of the appellant in checking the labour, showed that he was not an innocent carrier of the money for Gupta but knew that it was being obtained as a bribe in connection with the installation of the power connection.
In any case, maintains the Counsel the appellant was guilty of abetment of an offence under sec, 161 Penal Code and section 5 of the Act.
We are unable to accede to this contention.
In our opinion, this Act of the appellant was a neutral circumstance.
It was not indicative of a guilty mind.
The appellant explained that he had checked the labour working at site because he had been asked to do so by Inspector Gupta.
This conduct of the appellant, therefore, was no ground to hold that he had received the G.C. Note of Rs. 100/ with the requisite mens rea.
Evidently in collecting this currency note from the complainant he was Acting only as an innocent tool of Gupta.
He was a mere labourer.
Even in that humble position, he was not a member of the gang working at the installation site in the factory of the complainant.
He was not concerned ill his official capacity with the installation work or the giving of power connection.
Being an unconcerned menial, he was incapable of showing any favour or rendering any service to the complainant in connection with his official duties.
One of the essential ingredients of the offence under section 161, I.P.C. with which the appellant stands charged is, that the gratification must have been received by the accused as "a motive or reward" for committing an act or omission in connection with his official functions.
lt must be shown that there was an understanding that the bribe was given in consideration to some official act or conduct.
It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions.
Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or for hearing to do any official act or for showing any favour or disfavour in the exercise of his official functions.
This question as to whether the government servant receiving the money 354 had the requisite incriminatory motive is one of fact.
Could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a motive or reward such as mentioned in section 161, Penal Code ? It is nobody 's case that while collecting the sum of Rs, 100/ , the appellant made any representation, claim or promise, whatever, that he would either himself or through Gupta get an official act done for the complainant.
Indeed, a prudent businessman like Jain would never pay such a substantial amount as a bribe to a mere Class IV servant in consideration of any promise of favour or service held out by the latter.
Such a tall claim or promise to do favour or service by a menial would be manifestly quixotic.
It would not pass muster.
Indeed the complainant did not hand over the money till he after repeated enquiry, was convinced that the appellant was asking for money not for himself but for Gupta and had been sent by the latter to collect an(l fetch it from the complainant.
The conduct attributed by P.W. 1 to the appellant was not incompatible with the role of an innocent carrier.
Thus, paradoxical as it may seem, the very story propounded by the complainant (P.W. 1) negates the presumption, nipping it as it were in the bud.
Be that as it may this statutory presumption being antithetical to the prosecution story, could not be availed of by the prosecution.
This being the position, the appellant could not be held guilty of the charge with the aid of section 4(1) of the Act.
Nor can the appellant be held guilty of abetting the alleged attempt made by Gupta to obtain the illegal gratification.
Intention to aid The commission of the crime, is the gist of the offence of abetment by aid.
Such intention, on the part of the appellant was lacking in this case.
Moreover, Gupta, the principal, has been acquitted and exonerated of committing the offending act, the commission of which is alleged to have been aided by the small fry, the appellant.
The charge under section S (1) (d) of the Act also cannot be sustained for the reason that in the peculiar circumstances or the case, it could not be reasonably said that the appellant had obtained the currency note by using some corrupt or illegal means or otherwise abusing his official position as a public servant.
This point was canvassed on behalf of the appellant before the High Court but was negatived by it in these terms: "In this case the appellant had told the complainant that he had been sent by Inspector Gupta and that he should pay the money.
It has been held by the Special Judge while acquitting Inspector Gupta that he was not the person who had sent the appellant to collect any money from the complainant.
Before contacting the complainant the appellant had checked the labour which was working in the factory for installation of the lines for electricity.
All this showed that he represented himself to the complainant as a person connected with the Department concerned.
He also used corrupt means to ask the money on behalf of Inspector Gupta and thus this ingredient was satisfied.
" We find ourselves unable to agree with this reasoning.
We have already noticed above that this was not the case of the prosecution? as 355 put in evidence, that the appellant had demanded the money on his own account by any express or implied representation to get any favour or service done to the complainant.
Rather, the positive case set up by the prosecution in evidence was that the money was demanded by Gupta and was received by the appellant on his behalf pursuant to the instructions of Gupta given to the complainant earlier.
Therefore, if the prosecution has failed to prove that the money had not been paid to the appellant pursuant to any demand of bribe made by Gupta, the court cannot make out a new case for the prosecution to hold that the amount had been received by the appellant on his own or for some person other.
than Gupta.
We have already held that the appellant was a mere labourer who was not concerned with the installation work at the site or with the giving of the power connection to the complainant.
In view of the categorical position taken by the prosecution in evidence, it does not now lie in their month to may that the appellant must have received the money for himself or for some other person; much less can it be said that the appellant has abused his official position or has used any illegal means in acting as an innocent carrier for Gupta.
Thus, the essential ingredient of the offence under section 5(1) (d) was lacking in this case.
We are therefore of the opinion that on the facts of this case, the prosecution had failed to bring home the charges to the appellant beyond a reasonable doubt.
Accordingly we allow this appeal, set aside the conviction of the appellant and acquit him of the charges levelled against him.
V.P.S. Appeal allowed.

summary:
An inspector of the Delhi Electric Supply Undertaking demanded a bribe for giving the complainant a power connection for his factory.
Information having been given to the anti corruption police a trap was set.
The inspector did not turn up at the appointed time to receive the money, but the appellant, a permanent labourer working under him, came to the complainant 's factory, told him that he had been sent by the Inspector, and that the money should be given to him. 'The complainant, at first, insisted that the inspector himself should come but later gave him the money.
The money was recovered from the appellant and the inspector and the appellant were charged with offences under the Prevention of Corruption Act.
The trial court acquitted the inspector but convicted the appellant under section S(2) read with section 5(1)(d) of the Act, and under section 161 I.P.C., with the aid of the presumption under section 4(1) of the Act.
The conviction was confirmed by the High Court.
Allowing the appeal to this Court, ^ HELD : ( I ) The question whether a government servant receiving money had the requisite incriminatory motive is one of fact.
[353H, 354A] (2) one of the essential ingredients of the offence under section 161, I.P.C., is that the gratification must have been received by the accused as a motive or reward for committing an act or omission in connection with his official functions.
Even if the government servant was incapable of showing any favour or rendering any service in connection with his official duties, he may be guilty; but, the existence of an understanding that the bribe was given in consideration of some official act or conduct is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward as mentioned in section 161, I.P.C. [353GH] (3 ) The appellant being a mere labourer was incapable of showing any favour or rendering any service to the complainant in connection with his official duties.
It had not been shown by the prosecution that he was in any way officially concerned with the installation of poles or the giving of electric connection; nor was it shown that the appellant made any representation, claim or promise, that he would either himself or through his inspector get an official act done for the complainant.
Or that the appellant had demanded bribe from the complainant.
[353A C, F] In the absence of any such circumstances the conduct of the appellant was not incompatible with the role of an innocent carrier of money without the requisite mens rea.
[353E] (4) The charge under section 5(1)(d) also is unsustainable because, it could not be reasonably said that the appellant obtained the money by using corrupt or illegal means or otherwise abusing his official position, as a public servant (5) Section 4(1) of the Prevention of Corruption Act Provides that in the trial of an offence punishable under section 161 or 165, I.P.C., or under cls.
(a) or (b) of 5 5(1) read with sub section
5(2) of the Act, if the prosecution proves that the accused had accepted or obtained a gratification other than legal remuneration the court has to presume that the gratification was accepted or obtained by the accused as a motive or reward as mentioned in section 161, I.P.C. [351 H, 52B] 349 (6) (a) The presumption, however, is not absolute and is rebuttable.
The quantum and nature of proof required to displace the presumption, varies according to the circumstances of each case.
Such proof may partake of the shape of defence evidence adduced by the accused or, it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise.
While the mere explanation given by the accused in his examination under section 342, Cr. P.C., may not b enough the burden on him to negate the presumption may stand discharged, if the effect of the material brought on record, in its totality renders the existence of the fact to be presumed improbable.
The accused may, therefore, rebut the presumption by showing a more preponderance of probability in his favour and it is not necessary for him to establish his case beyond reasonable doubt.
[352 CF]] Mahesh Prasad Gupta vs State of Rajasthan, ; followed. (b) Further, the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under section 5(1) and (2) of the Act and section 161, I.P.C. The presumption, therefore, can be used only in furtherance of the prosecution case and not in derogation of it.
[352F G] (c) In the present case.
the statutory presumption being antithetical to the prosecution story, namely, that it was the inspector who demanded the bribe for showing a favour and that the payment was intended for him, could not be availed of by the Prosecution against the appellant.
[354 CD] (7) Nor can the appellant be held guilty of abetting the alleged attempt made by the inspector to obtain illegal gratification.
Intention to aid the conn mission of the crime is the gist of the offence of abetment, and such intention on the part of the appellant is lacking in this case.
It has not been shown that the appellant was present any occasion when the inspector demanded the bribe.
[354 D G] (8) Moreover, the principal accused had been acquitted.
The prosecution having failed to prove that the money had been paid to the appellant pursuant to the demand for a bribe by the inspector, the court cannot make out a new cause for the prosecution and hold that the amount had been.
received by the appellant on his own or for some person other than the inspector.
[355 B, D]