judgement:
Civil Appeal No. 358 of 1970.
From the Judgment and Order dated 14 10 1969 of the Gujarat High Court in L.P. Appeal No. 11/63.
R.P. Bhatt, K.J. John and D.N. Misra for the Appellant.
479 Y.S. Chitale, V.B. Joshi, P.C. Kapoor, Mrs. V.D. Khanna and Miss Geeta Sharma for Respondent No. 1.
I.N. Shroff for Respondent No. 2.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question which arises for consideration in this appeal by certificate is whether the plaintiff in the suit out of which this appeal arises i.e. Nadiad Borough Municipality Nadiad is an establishment which can claim the benefit of sub section (3) of section 22 A of the (Act No. 9 of 1910) (hereinafter referred to as 'the Act ').
The plaintiff instituted the said suit on August 12, 1960 against the defendant, Nadiad Electric Supply Co. Ltd., Nadiad on the file of the Civil Judge (Senior Division), Nadiad for a declaration that it was entitled to the supply of electrical energy from the defendant on the same terms and conditions as were specified in the agreement dated August 14, 1940 entered into between it and the defendant until the defendant received a notice in writing from the plaintiff requiring it to discontinue the supply and for an injunction restraining the defendant from discontinuing the supply till such notice was served on the defendant.
The facts set out in the plaint were briefly these: The plaintiff was a Municipality which was under an obligation to make reasonable and adequate provision for lighting of public streets, places and buildings situated within its limits and for that purpose, the plaintiff had entered into an agreement on August 14, 1940 with the defendant which was a licensee under the Act.
The period during which the supply of electrical energy was to be made under the agreement was 20 years from the date on which the agreement was executed.
On May 10, 1960, the defendant wrote a letter to the plaintiff that the suit agreement was to come to an end on the expiry of August 13, 1960 and the defendant was not under any obligation to continue to supply energy to the plaintiff as per rates, terms and conditions stated in the agreement after its expiry and that it was willing to supply energy thereafter provided the plaintiff was willing to pay the charges for the supply at the new rates demanded by it.
The defendant also informed the plaintiff that if the plaintiff was not willing to purchase energy at the revised rates, it would discontinue the supply on the expiry of the period of the agreement.
The plaintiff thereafter wrote a letter on August 6, 1960 requesting the defendant to renew the agreement on the same terms and conditions as were mentioned in the agreement dated August 14, 1940.
By its reply dated August 9, 1960, the defendant informed the plaintiff that it was not willing to supply electrical energy on the same terms and conditions men 480 tioned in the agreement after its expiry and insisted upon payment being made at the revised rates as stated in its letter dated May 10, 1960.
The plaintiff thereafter filed the above suit on August 12, 1960 for the reliefs referred to above principally relying upon the provisions of sub section (3) of section 22 A of the Act.
The defendant, in the course of its written statement, inter alia contended that the plaintiff was not entitled to the benefit of sub section (3) of section 22 A of the Act as it was not an establishment to which the said provision was applicable.
In the course of the trial, it was not disputed that the State Government had not issued any notification stating that in its opinion the plaintiff was an establishment used or intended to be used for maintaining supplies and services essential to the community as required by sub section (1) of section 22 A of the Act.
The trial court held that in the absence of such a notification, the plaintiff was not entitled to claim the benefit of sub section (3) of section 22 A of the Act and, therefore, no relief could be granted in the suit.
The suit was accordingly dismissed.
Aggrieved by the decree of the trial court, the plaintiff filed an appeal before the District Judge of Kaira at Naidad.
The said appeal was transferred to the file of the 2nd Extra Assistant Judge at Ahmedabad.
After hearing the parties, the 2nd Extra Assistant Judge dismissed the appeal.
Against the decree of the first appellate court, the plaintiff filed a second appeal before the High Court of Gujarat.
The second appeal was allowed in part by a single Judge of the High Court of Gujarat and a decree was passed granting a declaration in favour of the plaintiff declaring that the defendant was bound under sub section (3) of section 22 A of the Act to continue to supply electrical energy to the plaintiff at the same rates and on the same terms and conditions as were specified in the agreement dated August 14, 1940 so long as the plaintiff continued to be an establishment used or intended to be used for maintaining supplies and services essential to the community and until the defendant received a notice in writing from the plaintiff requiring the defendant to discontinue the supply, such obligation, however, being subject to the other provisions of the Act and the provisions of the , including sections 57 and 57A and the Sixth and Seventh Schedules to that Act.
The relief of permanent injunction prayed for in the suit was, however, refused on the ground that the defendant had never refused to supply electrical energy to the plaintiff at the same rates and on the same terms and conditions as were specified in the agreement dated August 14, 1940 if it was held either that there was a covenant for renewal contained in the agreement dated August 14, 1940 or that sub section (3) of section 22 A of the Act applied to the facts of the case.
481 Against the decree passed in the second appeal, the defendant filed Letters Patent Appeal No. 11 of 1963 on the file of the High Court.
That appeal was dismissed by a Division Bench of the High Court, Thereafter the Division Bench issued a certificate under Article 133(1) (c) of the Constitution certifying that the case was a fit one for appeal to this Court.
On the basis of the above certificate, the defendant has filed this appeal before this Court.
In the course of this appeal on an application made by the plaintiff, the Gujarat State Electricity Board has also been impleaded as a respondent.
We shall now make a brief survey of the relevant provisions of the Act.
Sub section (2) of section 21 of the Act provides that a licensee who is authorised to supply energy under Part II thereof may, with the previous sanction of the State Government given after consulting the local authority where the licensee is not the local authority, enter into an agreement with a person who is or intends to become a consumer, with conditions not inconsistent with the Act or with his licence or with any rules made under the Act and may, with the like sanction given after like consultation, add to or alter or amend any such condition; and that any conditions introduced in the agreement by the licensee without such sanction shall be null and void.
The State Government may also under sub section (3) of section 21 of the Act after like consultation add any new condition or cancel or amend any condition or part of a condition previously sanctioned after giving to the licensee not less than one month 's notice in writing of its intention so to do.
Section 22 of the Act provides that where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the licence, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply.
Section 23(1) of the Act prohibits a licensee from making any agreement for the supply of energy showing undue preference to any person.
Sub section (3) of section 23 of the Act provides that in the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer by the actual amount of energy so supplied, or by the electrical quantity contained in the supply, or by such other methods as may be approved by the State Government, Section 24 of the Act authorises the licensee to discontinue the supply of energy to any consumer neglecting to pay the charges payable by him.
A combined reading of these provisions shows that it is open to a licensee to enter into an agreement with the previous sanction of the 482 State Government with any consumer to supply electrical energy at the agreed rate subject to the other provisions of the Act and that he cannot show undue preference to any person in the matter of supply of electrical energy.
The above provisions like the other provisions of the Act are subject to section 70 of the (Act No. 54 of 1948) which provides that no provision of the Act or of any rules made thereunder or of any instrument having effect by virtue of such law or rule shall, so far as it is inconsistent with any of the provisions of the , have any effect and that save as otherwise provided in that Act, the provisions of that Act shall be in addition to, and not in derogation of the Act.
Section 22A of the Act which arises for consideration in this case was inserted in the Act by the Electricity (Amendment) Act, 1959 (Act No. 32 of 1959).
It reads thus: "22 A. (1) The State Government may, if in its opinion it is necessary in the public interest so to do, direct any licensee to supply, in preference to any other consumer, energy required by any establishment which being in the opinion of the State Government an establishment used or intended to be used for maintaining supplies and services essential to the community, is notified by that Government in the Official Gazette in this behalf.
(2) Where any direction is issued under sub section (1) requiring a licensee to supply energy to any establishment and any difference or dispute arises as to the price or other terms and conditions relating to the supply of energy, the licensee shall not by reason only of such difference or dispute be entitled to refuse to supply energy but such difference or dispute shall be determined by arbitration.
(3) Where any agreement by a licensee, whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959, for the supply of energy with any establishment referred to in sub section (1) expires, the licensee shall continue to supply energy to such establishment on the same terms and conditions as are specified in the agreement until he receives a notice in writing from the establishment requiring him to discontinue the supply.
(4) Notwithstanding anything contained in this Act, or in the , or in his licence or in any agreement entered into by him for the supply of energy, a licensee shall be bound to comply with any direction given to him under sub section (1) and any action taken by him in 483 pursuance of any such direction shall not be deemed to be a contravention of section 23." Even though the licensee has no right to show undue preference to any person in the matter of supply of electrical energy and it is open to the licensee with the previous sanction of the Government to enter into an agreement with a consumer containing conditions including the stipulation regarding the charges payable by the consumer for a specified period subject to the other provision of the Act, section 22 A of the Act authorises the State Government to give directions to a licensee in regard to the supply of energy to an establishment referred to in sub section (1) in preference to any other consumer and it also provides that in the case of any establishment referred to in sub section (1) if an agreement has been entered into by a licensee whether made before or after the commencement of the Electricity (Amendment) Act, 1959 for the supply of energy, the licensee shall continue to supply energy to such establishment on the same terms and conditions as are specified in the agreement even after the expiry of the agreement until he receives a notice in writing from the establishment requiring him to discontinue the supply.
In order to understand the contentions urged by the parties, it is necessary to deal with the provisions of section 22 A of the Act in some detail.
Sub section (1) of section 22 A of the Act authorises the State Government to issue direction to a licensee to supply energy to an establishment in preference to any other consumer (i) If in its opinion it is necessary in the public interest to give such direction and (ii) if the establishment in question is in the opinion of the State Government an establishment used or intended to be used for maintaining supplies and services essential to the community and the decision of the State Government that in its opinion the establishment is used or intended to be used for maintaining supplies and services essential to the community is notified by that Government in the Official Gazette.
Sub section (1) of section 22 A of the Act speaks of the State Government forming two opinions one regarding the question whether it is necessary in the public interest to issue a direction to supply energy to an establishment in preference to any other consumer and the other regarding the character of the establishment i.e. regarding the question whether the establishment is one used or intended to be used for maintaining supplies and services essential to the community.
In other words, the decision on the question whether an establishment is used or intended to be used for maintaining supplies and services essential to the community has to be taken by the State Government either before or at the time of issuing a direction under section 22 A(1).
Sub sections (2) and (4) of section 22 A of the Act are ancillary to the 484 power of the State Government to issue a direction under sub section (1) thereof.
The material provision with which we are concerned in this appeal is sub section (3) of section 22 A of the Act which provides that where any agreement by a licensee, whether made before or after the commencement of the Electricity (Amendment) Act, 1959, for the supply of energy with any establishment referred to in sub section (1) expires, the licensee shall continue to supply energy to such establishment on the same terms and conditions as are specified in the agreement until he receives a notice in writing from the establishment requiring him to discontinue the supply.
The argument urged on behalf of the plaintiff which was rejected by the trial court and the first appellate court but was accepted by the learned Single Judge of the High Court in second appeal and by the Division Bench of the High Court in the Letters Patent Appeal was that the agreement entered into by it with the defendant on August 14, 1940 would continue to remain in operation by virtue of sub section (3) of section 22 A of the Act even after its expiry because the plaintiff was an establishment which was 'used or intended to be used for maintaining supplies and services essential to the community ' and that there was no necessity of the publication of a notification in the Official Gazette stating that the State Government was of the opinion that it was an establishment used or intended to be used for maintaining supplies and services essential to the community.
The contention urged on behalf of the plaintiff in regard the above proposition was that the words "any establishment referred to in subsection (1)" in sub section (3) of section 22 A of the Act meant 'an establishment used or intended to be used for maintaining supplies and services essential to the community ' and not any establishment which was notified by the State Government in the Official Gazette as an establishment which in the opinion of the State Government was being used or intended to be used for maintaining supplies and services essential to the community.
The very same contention is urged before us in this appeal on behalf of the plaintiff.
It is argued on behalf of the defendant that sub section (3) of section 22 A of the Act is applicable only in the case of an establishment which in the opinion of the State Government is an establishment used or intended to be used for maintaining supplies and services essential to the community in respect of which a direction is issued to the licensee under sub section (1) and a notification is issued by that Government in the Official Gazette in that behalf.
The judgment delivered in the Letters Patent Appeal, which is an affirming one, appears to be a summary of the judgment of the learned Single Judge of the High Court.
The learned Single Judge in his judgment to which our attention was drawn by the learned counsel for 485 the parties while dealing with sub section (1) of section 22 A of the Act observed: "Which is the establishment referred to in sub section (1) of section 22 A? ' and if that question is asked, it is obvious that the establishment referred to in sub section (1) of section 22 A is an establishment used or intended to be used for maintaining supplies and services essential to the community.
Of course, the determination of the question whether a particular establishment is an establishment used or intended to be used for maintaining supplies and services essential to the community, is as I have pointed out above left to the subjective satisfaction of the State Government; but the establishment referred to in sub section (1) of section 22 A is indubitably an establishment used or intended to be used for maintaining supplies and services essential to the community and it is only when a particular establishment is, in the opinion of the State Government, such an establishment that it can be notified by the State Government under sub section (1) of section 22 A.
The establishment in favour of which a direction can be given under sub section (1) of section 22 A must be an establishment used or intended to be used for maintaining supplies and services essential to the community but someone must have the power to determine whether a particular establishment is such an establishment.
That power is entrusted by the legislature to the State Government and the determination of the State Government in its subjective satisfaction is made final and conclusive; but it is clear that what the State Government has to find in its subjective satisfaction is the fact as to the establishment being used or intended to be used for maintaining supplies and services essential to the community and it is because a particular establishment is such an establishment as determined by the State Government, that the State Government can notify it for the purpose of giving it preferential treatment in the matter of supply of electrical energy.
It is, therefore, obvious that the establishment referred to in sub section (1) of section 22 A is an establishment used or intended to be used for maintaining supplies and services essential to the community and it is not the same thing as an establishment notified under subsection (1) of section 22 A." Having stated so, the learned Judge proceeded to observe that the words 'any establishment referred to in sub section (1) ' in sub section 486 (3) of section 22 A of the Act referred to any establishment used or intended to be used for maintaining supplies and services essential to the community and were not limited to an establishment which being in the opinion of the State Government an establishment used or intended to be used for maintaining supplies and services essential to the community was notified by the State Government in the Official Gazette, as required by sub section (1) of section 22 A of the Act.
One of the reasons given by the learned Judge in support of the above conclusion was as follows: "The provisions of sub section (3) of section 22 A become applicable only an agreement by a licensee, whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959, for the supply of electrical energy with any establishment referred to in sub section (1) of section 22 A expires after the coming into force of the Indian Electricity (Amendment) Act, 1959.
The agreement on the expiration of which the provisions of sub section (3) of section 22 A are attracted must therefore be an agreement made by a licensee with an establishment referred to in subsection (1) of section 22 A for the supply of electrical energy, whether before or after the commencement of the Indian Electricity (Amendment) Act, 1959.
The establishment with whom the agreement has been made by the licensee must, therefore, evidently be an establishment referred to in subsection (1) of section 22 A at the date when the agreement was made between the parties.
It is at the date of the agreement that the establishment must satisfy the description given in the words "any establishment referred to in sub section (1)" for it is only then that it can be said that the agreement was made by the licensee with an establishment referred to in sub section (1) of section 22 A." It is difficult to agree with the proposition set forth in the above extract of the judgment of the learned Single Judge because if the agreement referred to in sub section (3) of section 22 A of the Act is an agreement entered into by a licensee with an establishment which is, at the time of the agreement, an establishment referred to in sub section (1) of section 22 A of the Act, then the provision in sub section (3) making it applicable to agreements made before the commencement of the Electricity (Amendment) Act, 1959 by which section 22 A was introduced becomes meaningless because the formation of the two opinions of the State Government that an establishment is being used or intended to be used for maintaining supplies and services essential 487 to the community and that it is necessary to issue of direction in respect of it under sub section (1), can only be done after section 22 A of the Act was introduced in the Act and there would be no establishment satisfying the requirements of section 22 A(1) before section 22 A was introduced.
The next ground relied on by the learned Single Judge to hold that the establishment referred to in sub section (3) of section 22 A of the Act need not satisfy all the requirements of an establishment referred to in sub section (1) of section 22 A which again is untenable was that the object of enacting sub section (1) was different from the object of enacting sub section (3) and therefore, there was no need to treat an establishment referred to in sub section (1) on par with an establishment in sub section (3).
It may be that sub section (1) of section 22 A of the Act was enacted by the Parliament for the purpose of enabling the State Government to issue a direction and sub section (3) was enacted for the purpose of providing for the continuance of an agreement entered into by a licensee with an establishment referred to in sub section (1) of section 22 A, but what is, however, common to the two sub sections is that the establishment referred to in sub section (1) and an establishment referred to in sub section (3) of section 22 A should be of the same kind i.e. it should be an establishment which is in the opinion of the State Government used or intended to be used for maintaining supplies and services essential to the community and the fact of formation of such opinion is notified in the Official Gazette.
It should satisfy the tests laid down in section 22 A(1) of the Act.
The third reason given by the learned Single Judge for holding that the establishment referred to in sub section (3) of section 22 A of the Act could not be an establishment notified by the State Government as one which in its opinion was being used or intended to be used for maintaining supplies and services essential to the community was that the issue of a notification by the State Government under sub section (1) of section 22 A would be unjustified except when the Government was of opinion that a direction should be issued.
In other words, the learned Single Judge was of the view that when the State Government felt that there was no necessity to issue any direction, it could not issue any notification under that provision stating that an establishment was in its opinion an establishment which was being used or intended to be used for maintaining supplies and services essential to the community.
We do not think that the above observation of the learned Single Judge is correct since there is no impediment for the State Government issuing a notification under sub section (1) of section 22 A in order 488 that an establishment notified therein gets the benefit of sub section (3) of section 22 A of the Act.
The Division Bench in its judgment in the Letters Patent Appeal has adopted more or less the same reasoning adopted by the learned Single Judge in upholding the contention of the plaintiff.
The words 'referred to in sub section (1) ' appearing in sub section (3) of section 22 A of the Act are descriptive of and define the establishment to which sub section (3) of section 22 A applies and in order to identify such establishment we must have recourse to the latter part of sub section (1) which lays down the criteria which such establishment should satisfy. ' A statutory definition or abbreviation should be read subject to all the qualifications expressed in the statute and unless the context in which the word defined appears otherwise requires, it should be given the same meaning given by the words defining it. ' A fair reading of section 22 A of the Act suggests that the Parliament did not intend to empower the State Government to issue a direction under sub section (1) of section 22 A or to provide for the continuance of the agreement entered into by a licensee with an establishment in every case where the establishment was one which was being used or intended to be used for maintaining supplies and services essential to the community.
The intention of the Parliament appears to be that the State Government can issue a direction only in the case of an establishment which in its opinion satisfies the qualifications mentioned therein and that sub section (3) should be applicable only to an establishment which in the opinion of the State Government satisfies the said qualifications.
The determination of the question whether an establishment satisfies the objective test mentioned in section 22 A(1) of the Act is left to the State Government.
The law also prescribes that such determination should be made known to all concerned by a formal publication in the official Gazette.
Instead of providing separately in section 22 A of the Act that an establishment referred to in any of the sub sections of that section was an establishment which in the opinion of the State Government was one used or intended to be used for maintaining supplies and services essential to the community, the Parliament defined the establishment to which section 22 A was applicable in sub section (1) and instead of repeating the same definition in sub section (3) provided that an establishment to which sub section (3) thereof was applicable was an establishment referred to in sub section (1).
We are of the view that the power to issue a notification under section 22 A(1) of the Act involves an element of selection and that the said process of selection cannot be considered as an empty formality which can be dispensed with.
Nor can that power of selection which is 489 entrusted to the State Government by the Parliament be claimed by the courts.
It is for the State Government to notify the establishment which should be the beneficiary of a direction to be issued under section 22 A(1) or which is entitled under section 22 A(3) of the Act to the supply of electrical energy on the same terms and conditions as are specified in the agreement entered into by it with the licensee even after the expiry of the agreement until such establishment serves a notice in writing on the licensee asking the licensee to discontinue the supply.
Having regard to the context in which section 22 A of the Act appears and in particular to the language used in sub sections (1) and (3) of section 22 A, we are of the view that it is not possible to hold that section 22 A(3) is applicable to every establishment used or intended to be used for maintaining supplies and services essential to the community even though the State Government has not declared in a notification published in the Official Gazette that it is of the opinion that the establishment satisfied the qualification referred to in subsection (1).
We have to bear in mind that sub section (3) of section 22 A of the Act makes a serious inroad into the rights of the licensee flowing from a contract stipulating a specific period during which it should subsist and compels the licensee to supply energy to an establishment referred to therein on the same terms and conditions as are specified in the agreement already entered into even beyond the period of its expiry until a notice is issued in writing by the establishment requiring the licensee to discontinue the supply.
If a liberal construction is placed on the words "any establishment referred to in sub section (1)" appearing in sub section (3) of section 22 A as referring to every establishment which is being used or intended to be used for maintaining supplies and services essential to the community irrespective of the issue of a notification by the State Government that it is in its opinion such an establishment, it is bound to impose a greater restraint on the rights of the licensee than the restraint that will be imposed on it if it is held that the establishment referred to in sub section (3) of section 22 A is one notified by the State Government as required by sub section (1) of section 22 A.
If the State Government does not issue such a notification in the case of an establishment then such establishment would not be eligible to claim the benefit of section 22 A(3).
We may also observe here that any establishment whose interests are required to be protected by the extension of the benefit of section 22 A(3), the State Government can always issue a notification under sub section (1) stating that in its opinion the said establishment satisfies the qualification mentioned therein.
In the circumstances, we are constrained to say that the High Court was in error in ignoring the requirements which an establishment had 490 to satisfy before claiming the benefit of sub section (3) and in holding that if in the opinion of the Court, the establishment satisfied that it was being used or intended to be used for maintaining supplies and services essential to the community, it could claim the benefit of sub section (3) even though no notification had been issued by the State Government under sub section (1) of section 22 A of the Act.
In the result, we allow the appeal, set aside the judgments and decrees passed by the High Court in the second appeal and in the Letters Patent Appeal and restore the decree of the trial court as affirmed by the first appellate court dismissing the suit.
Having regard to the circumstances of the case, we direct the parties to bear their own costs throughout.
N.V.K. Appeal allowed.

summary:
Section 22 A of the was inserted in the Act by the Electricity (Amendment) Act, 1959 (32 of 1959).
Sub section 1 of section 22 A authorised the State Government to issue direction to a licensee to supply energy to an establishment in preference to any other consumer, if in its opinion it is necessary in the public interest to give such direction and (ii) if the establishment in question is in the opinion of the State Government as establishment used or intended to be used for maintaining supplies and services essential to the community and the decision of the State Government that in its opinion the establishment is used or intended to be used for maintaining supplies and services essential to the community is notified by that Government in the Official Gazette.
Sub section (3) of Section 22 A provides that where in any agreement by a licensee, whether made before or after the commencement of the Electricity (Amendment) Act, 1959 for the supply of energy with any establishment referred to in sub section (1) expires, the licensee shall continue to supply energy to such establishment on the same terms and conditions as are specified in the agreement until receipt of a notice in writing from the establishment requiring discontinuance of the supply.
The Respondent Municipality which was under an obligation to make reasonable and adequate provision for lighting of public streets, places and buildings situated within its limit, entered into an agreement on August 14, 1940 with the Appellant Company which was licensee under the Electricity Act, 1910.
The period during which the supply of electrical energy was to be made under the said agreement was 20 years from the date on which it was executed.
On May 10, 1960 the Company wrote a letter to the municipality that the said agreement was to come to an end and on its expiry, the Company was not under any obligation to continue to supply energy to the Municipality as per the rates, terms and conditions stated in the agreement.
The company also informed that if the municipality was not willing to purchase energy at the revised rates the supply would be discontinued on the expiry of the period of the agreement.
The municipality thereafter wrote a letter on August 6, 1960 requesting the Company to renew the agreement on the same terms and conditions.
The Company by its reply informed the municipality that it would not supply electrical energy on the same terms and conditions and insisted on payment being made at the revised rates as stated in its letter dated May 10, 1960.
The municipality thereafter filed a suit relying upon the provisions of sub section (3) of section 22 A 477 of the Act, for a declaration that it was entitled to the supply of electrical energy from the Company on the same terms and conditions as were specified in the agreement, until the Company received a notice in writing from the municipality requiring it to discontinue the supply.
The company contested the suit on the ground that the municipality was not entitled to the benefit of sub section (3) of section 22 A of the Act as it was not an establishment to which the said provision was applicable.
The Trial Court held that in the absence of a notification as required by sub section (1) of Section 22 A of the Act the municipality was not entitled to claim the benefit of the provision and therefore no relief could be granted in the suit and accordingly dismissed the suit.
The municipality 's appeal to the District Court was dismissed, but the second appeal was partly allowed by a Single Judge of the High Court, and a decree was passed granting relief in favour of the municipality declaring that the company was bound under sub section (3) of section 22 A of the Act to continue to supply electrical energy to the municipality at the same rates and on the same terms and conditions as were specified in the agreement, dated August 14, 1960.
The Letters Patent Appeal filed by the company was dismissed by the Division Bench of the High Court, which however certified the case as a fit one for appeal under Article 133(1)(c) of the Constitution.
In the appeal to this Court, on the question whether the municipality was an establishment which can claim the benefit of sub section (3) of section 22 A of the Act.
^ HELD: 1.
The High Court was in error in ignoring the requirements which an establishment had to satisfy before claiming the benefit of sub section (3) and in holding that if in the opinion of the Court, the establishment satisfied that it was being used or intended to be used for maintaining supplies and services essential to the community, it could claim the benefit of sub section (3) even though no notification had been issued by the State Government under sub section (1) of Section 22 A of the Act.
[489H 490B] 2.
If the agreement referred to in sub section (3) of section 22 A of the Act is an agreement entered into by a licensee with an establishment which is at the time of the agreement, an establishment referred to in sub section (1) of section 22 A of the Act, then the provision in sub section (3) making it applicable to agreements made before the commencement of the Electricity (Amendment) Act, 1959 by which section 22 A was introduced becomes meaningless because the formation of the two opinions of the State Government that an establishment is being used or intended to be used for maintaining supplies and services essential to the community and that it is necessary to issue a direction in respect of it under sub section (1) can only be done after section 22 A of the Act was introduced in the Act and there would be no establishment satisfying the requirements of section 22 A(1) before section 22 A(1) was introduced.
[486 G 487 A] 3.
Sub section (1) of section 22 A of the Act was enacted by the Parliament for the purpose of enabling the State Government to issue a direction and subsection (3) was enacted for the purpose of providing for the continuance of an agreement entered into by a licensee with an establishment referred to in sub section (1) of section 22 A. What, is however, common to the two sub sections is that the establishment referred to in sub section (1) and an establishment 478 referred to in sub section (3) of section 22 A should be of the same kind that is it should be an establishment which is in the opinion of the State Government used or intended to be used for maintaining supplies and services essential to the community and the fact of formation of such opinion is notified in the Official Gazette.
It should satisfy the test laid down in sub section 22 A(1) of the Act.
[487 C E] 4.
There is no impediment for the State Government issuing a notification under sub section (1) of section 22 A in order that an establishment notified therein gets the benefit of sub section (3) of section 22 A of the Act.
[487 H 488 A] 5.
The words 'referred to in sub section (1) appearing in sub section (1) of section 22 A of the Act are descriptive of and define the establishment to which sub section (3) of section 22 A applies and in order to identify such establishment, recourse should be had to the latter part of sub section (1) which lays down the criteria which such establishment should satisfy.
[488 B] 6.
A statutory definition or abbreviation should be read subject to all the qualifications expressed in the Statute and unless the context in which the word defined appears otherwise requires, it should be given the same meaning given by the words defining it.
[488 C] 7.
The power to issue a notification under section 22 A(1) of the Act involves an element of selection and the said process of selection cannot be construed as an empty formality which can be dispensed with.
Nor can that power of selection which is entrusted to the State Government by the Parliament be claimed by the Courts.
It is for the State Government to notify the establishment which should be the beneficiary of a direction to be issued under section 22 A(1) or which is entitled under section 22 A(3) of the Act to the supply of electrical energy on the same terms and conditions as are specified in the agreement entered into by it with the licensee even after the expiry of the agreement until such establishment serves a notice in writing on the licensee asking the licensee to discontinue the supply.
[488 H 489 B] 8.
Section 22 A of the Act, suggests that the intention of Parliament appears to be that the State Government can issue a direction only in the case of an establishment which in its opinion satisfies the qualifications mentioned therein and that sub section (3) should be applicable only to an establishment which in the opinion of the State Government satisfies the said qualifications.
[488 E] 9.
Sub section (3) of section 22 A of the Act makes a serious inroad into the rights of the licensee flowing from a contract stipulating a specific period during which it should subsist and compels the licensee to supply energy to the establishment even after the expiry of the agreement until a notice is issued in writing by the establishment requiring the licensee to discontinue the supply.
[489 D]


judgement:
: Special Leave Petition (Criminal) No. 2636 of 1979.
From the Judgment and Order dated 25 4 1979 of the Bombay High Court in Criminal Appeal No. 822/77.
Pramod Swarup (Amicus Curiae) for the Petitioner.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Shri Pramod Swarup appearing as amicus curiae has presented the case of the accused as effectively as the record permits.
Indeed, he has gone to the extent of pressing into service points which do not appear to us to have any force.
Moreover, he has tried to persuade us to believe that a dying declaration made by the lady who was burnt to death by the husband accused that is the charge on which the trial court and the High Court have found the petitioner guilty is exonerative of the accused husband and does not implicate him as the Court has construed.
The declarant as she was dying was 1210 conscious enough to make a statement and in one of the several statements she made, it would appear, she said when her husband was being beaten up that even though she had been burnt, her husband should not be beaten.
This is a sentiment too touching for tears and stems from the values of the culture of the Indian womanhood.
A wife when she has been set fire to by her husband, true to her tradition, does not want her husband to be assaulted brutally.
It is this sentiment which prompted this dying tragic woman to say that even if she was dying having been burnt, her husband should not be beaten.
We are unable to appreciate how this statement can be converted into one exculpative of the accused.
Anyway, we are mentioning these facts only because Shri Pramod Swarup contended that they were weighty circumstances sufficient to cancel the conviction.
Wife burning tragedies are becoming too frequent for the country to be complacent.
Police sensitisation mechanisms which will prevent the commission of such crimes must be set up if these horrendous crimes are to be avoided.
Likewise, special provisions facilitating easier proof of such special class of murders on establishing certain basic facts must be provided for by appropriate legislation.
Law must rise to the challenge of shocking criminology, especially when helpless women are the victims and the crime is committed in the secrecy of the husband 's home.
We hope the State 's concern for the weaker sections of the community will be activised into appropriate machinery and procedure.
We dismiss the special leave petition.
S.R. Petition dismissed.

dataset_name: IN-Abs

summary:
Dismissing the special leave petition, the Court ^ HELD: The statement by the dying tragic woman that her husband should not be beaten, even though she was dying having been burnt, cannot be converted into one exculpative of the accused.
This is a sentiment too touching for tears and stems from the values of the culture of the Indian womanhood.
[1210A B] Observation: Police sensitisation mechanisms which will prevent commission of crimes like wife burning must be set up if these horrendous crimes are to be avoided.
Likewise, special provisions facilitating easier proof of such special class of murders on establishing certain basic facts must be provided for by appropriate legislation.
Law must rise to the challenge of shocking criminology, especially when helpless women are the victims and the crime is committed in the secrecy of the husband 's home.
[1210C E]


judgement:
Civil Appeal No. 174 of 1976.
Appeal by Special Leave from the Judgment and order dated 1 11 1974 of the Delhi High Court in L.P.A. No. 19/71.
P. P. Rao, A. K. Ganguli and R. Venkataramani for the Appellant.
T. A. Francis and Miss A. Subhashini for the Respondents.
Admittedly he was appointed by the Comptroller and Auditor General.
The only point that arises or, at any rate, we are concerned with is, as to whether the retirement order is in conformity with Rule 2(a) of the C.C.S. (C.C.A.) Rules 1965.
The appointing 555 authority according to Rule 56(j) is the competent authority.
Who then, is the appointing authority in the context of this case? The answer is to be sought under Rule 2(a) which reads thus: "In these rules, unless the context otherwise, requires 2 (a) appointing authority in relation to a Government servant means (i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or (ii) the authority, empowered to make appointments to the post which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a permanent member of any other service of having substantively held any other permanent post, has been in continuous employment of the Government the authority which appointed him to that service or to any grade in that service or to that post.
whichever authority is the highest authority.
" The most significant part of the rule states, after setting out alternative authorities, that the appointing authority is one out of these four categories who is the highest.
This is emphatically brought out by the expression "whichever authority is the highest".
There is no doubt that among the four classes of authorities listed under Rule 2(a), the one falling under sub rule (iii) viz. Comptroller and Auditor general (in the present case) is the highest.
It evidently follows that the order of retirement to be legal, must be issued by the Comptroller and Auditor General, but actually the impugned order of retirement was issued by the Director of Commercial Audit.
In fact the order of retirement runs thus: "Whereas the Director of Commercial Audit is of the opinion that it is in the public interest to to do so. " Obviously the Director of Commercial Audit is a lesser official.
The conclusion is, therefore, inescapable that the compulsory retirement is contrary to law.
556 The High Court, in its extensive judgment, considered the scheme of the rules and, indeed, referred to the point mentioned above but after highlighting this question as one most emphasised by the appellant, has slurred over the point and proceeded to discussion of other issues.
We are concerned with the vital perhaps the fatal aspect of the order which has not received due attention at the hands of the High Court.
In this view, on account of the contravention of F.R. 56(j) read with Rule 2(a) of the (C.C.A.), we are constrained to come to the conclusion that the retirement is illegal.
The appellant has already become suparannuated and therefore, he will be eligible to his salary (by which we mean to include other allowances automatically admissible and going with salary) for the period between the date of compulsory retirement and the date of actual superannuation at the age of 58.
It is unfortunate that this legal flaw has proved fatal.
Administrative law is a course necessary for administrative officers at the highest levels so that such flaws may not vitiate orders they pass.
Eventually Government is put to considerable loss for no fault of it except that no proper legal training in this branch of the law for the concerned officers had been given by it.
With these observations we allow the appeal, but parties will bear their costs.
V.D.K. Appeal allowed.

summary:
Allowing the appeal by special leave, the Court, ^ HELD.
Rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965 states, after setting out alternative authorities, that the appointing authority is one out of four categories who is the highest, by using the expression "whichever authority is the highest".
There is no doubt that of the four classes of authorities listed under Rule 2(a), the one falling under sub rule (iii) viz. Comptroller & Auditor General (in the present case) is the highest.
Therefore the order of the retirement to be legal must be issued by the Comptroller & Auditor General.
The impugned order of retirement issued by the Director of the Commercial Audit who is a lesser official is contrary to law.
On account of the contravention of F.R. 56(j) read with rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965, the retirement is illegal.
[555 E G, 556 B] Observation: Administrative law is a course necessary for administrative officers at the highest levels so that such flaws may not vitiate orders they pass.


judgement:
Civil Appeal Nos.
2007 2014 of 1972.
From the Judgment and Order dated 24 4 1970 of the Madras High Court in Tax Case No. 156/67 (Ref.
No. 54/67).
section T. Desai, section P. Nayar and Miss A. Subhashini for the Appellant.
T. A. Ramachandran (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
These appeals by certificates under section 66A(2) of the Indian Income Tax Act, 1922 (hereinafter referred to as 'the Act ') raise the question whether the respondent assessee was a resident in the taxable territories under section 4A(a)(ii) of the Act for the concerned assessment years? The facts giving rise to the aforesaid question are these: Subramania and Arumuga were two brothers; the former had three sons Ratnaswamy, the assessee, Ganpathi and Velayudham while the latter had only one son Ganesa.
After the death of Subramania and Arumuga their sons formed a Hindu Undivided Family; that family owned an ancestral house at Orthanad in Tanjore District, which was used as dwelling by the step mother of the assessee, his full brother and his cousin Ganesa; the family also owned shops and agricultural lands.
The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income.
Admittedly, the 522 assessee never enjoyed any portion of the family income.
Born and brought up in Ceylon, the assessee had his own business and properties in Ceylon.
He had eight children all born and educated in Ceylon.
It appears that he started constructing a theatre in Orthanad in 1953 which was completed in 1957 and during the said construction he paid occasional visits and stayed sometimes in the family house, sometimes in a chatram in Tanjore and at times in a hotel.
Thus, from 1 4 1952 to 31 3 1953 he stayed for 8 days in India, from 1 4 1953 to 31 3 1954 he did not come to India at all, from 1 4 1954 to 31 3 1955 he stayed for 28 days in India, from 1 4 1955 to 31 3 1956 he stayed for 47 days in India and from 1 4 1956 to 31 3 1957 he stayed for 23 days in India.
In July 1958 the assessee on the one hand and other members of the family on the other executed a mutual deed of release, relinquishing each party 's rights in favour of the other; inter alia, the assessee released all his rights, title and interest in the family properties in favour of his brothers, reciting therein that the family properties were never enjoyed by him but only by others.
There is no dispute and the Tribunal has also found that the deed of release was an instrument bona fide entered into between the parties.
In the above circumstances for the assessment year 1952 53, 1953 54, 1956 57 and 1957 58, the assesses filed returns, but for the first two years after proceedings were initiated under section 34(1)(a) of the Act and for the latter two years on his own offering his income in Ceylon for assessment.
The status declared in all the returns was that he was 'a resident and ordinarily resident person. ' The Income Tax Officer completed the assessments on the basis of the returns filed.
He also initiated penalty proceedings against the assessee under section 28(1)(a) for not filing the returns in time and levied penalties on him.
In the appeals preferred by the assessee, which were principally directed against the rejection of the claim made by him in respect of the double taxation relief, an additional ground was taken that the assessee should have been treated as a 'non resident ' in all the years.
The Appellate Assistant Commissioner upheld this additional ground taking the view that since during his sojourn in India the assessee was staying in the family house more as a guest, he neither maintained nor had maintained for him a dwelling place in the taxable territories and, therefore, section 4A (a) (ii) of the Act was inapplicable.
The Department carried the matter in further appeals to the Tribunal but the Tribunal called for a remand report from the Appellate Assistant Commissioner after a fuller examination as to the factual position whether the assessee did maintain a dwelling place in India or the same was maintained for him by others inasmuch as the Tribunal felt that the Department did not have an effective opportunity to meet the 523 aspect raised for the first time before the Appellate Assistant Commissioner.
In the remand proceedings oral evidence was recorded by examining the assessee and two others and the final report was forwarded to the Tribunal.
On the basis of the material collected and forwarded to it, the Tribunal took the view that the assessee was a natural born Ceylon citizen staying in Ceylon most of the time, that his visits to India in the aggregate were for 137 days in the period of 11 years (from 1 4 46 to 31 3 67), that the evidence supported the theory that he was more a guest in family house in India than an inhabitant of his own house or home, that there was nothing to show that the assessee enjoyed any of his family income or had any separate portion of the family house reserved for him during his sojourn to India and that there were no enough materials to say that there was a residence either run or maintained by the assessee in India.
In this view of the matter the Tribunal upheld the Appellate Assistant Commissioner 's order cancelling the assessment orders made against the assessee.
As a consequence, the Tribunal also cancelled the penalties that were levied on the assessee.
At the instance of the Revenue and on a direction from the High Court the Tribunal referred the following two questions to the High Court for its opinion: "1.
Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was non resident? 2.
Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no liability to penalty under section 28(1)(a) ?" The High Court answered both the questions in favour of the assessee and against the Revenue.
While dealing with the first question, which was the principal question raised in Reference, the High Court took the view that the answer to that question depended upon a bundle of facts and their cumulative effect and in its view the cumulative effect of the totality of facts found by the Tribunal did not lead to the inference that a dwelling place or dwelling house was maintained by the assessee or the same was maintained by others for him but on the other hand the evidence showed that the assessee was enjoying the hospitality of his kith and kin during his stay in the family house where he was treated as a guest.
The High Court further held that the mere fact that the assessee had a right in the family house at Orthanad in Tanjore District and that he was occasionally lodging 524 there did not mean that he was maintaining the same or had it maintained for him and that what the law required was the maintenance of a dwelling place which should be his domus mansionalis; in other words, if the dwelling place was not his second home or the real centre of his life then the assessee would be a non resident.
It is this view of the High Court that is being challenged before us in these appeals by the Revenue.
Since the question raised before us pertains to the proper construction of section 4A (a) (ii) of the Act and the requirements thereof, it will be desirable to set out the said provision.
It runs thus: "For the purposes of this Act (a) any individual is resident in the taxable territories in any year if he . (ii) maintains or has maintained for him a dwelling place in the taxable territories for a period or periods amounting in all to one hundred and eighty two days or more in that year, is in the taxable territories for any time in that year.
" Since the section is prefaced by the phrase "for the purposes of this Act", it is clear that it raises a statutory fiction; further the language of the provision makes it clear that it lays down a technical test of territorial connection amounting to residence applicable to all individuals foreigners as well as Indians, including Hindus, Christians, Muslims, Parsis and others irrespective of the personal law governing them.
On a reading of the provision it becomes clear that before any individual can be said to be a resident in the taxable territories in any previous year two conditions are required to be fulfilled: (a) there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and (b) the assessee must live in the taxable territories (though not necessarily therein) for some time, howsoever short, in the previous year.
In the instant case it was not disputed before us that the second condition was satisfied in regard to the assessee.
The question that we have to consider is whether on the facts found by the Tribunal it could be said that the assessee maintained or had maintained for him a dwelling place in the taxable territories for the requisite period.
It was not disputed that the assessee himself did not maintain the family house but it was maintained by Ganesa as the manager of the Hindu Undivided Family.
If the family house, which was maintained by Ganesa as the Karta, in which the assessee had a share or interest and stayed for short periods during the previous years 525 relevant to the assessment years in question could be considered to be a dwelling house or a dwelling place maintained for him or for his benefit, then no difficulty would arise with regard to the requisite period because undoubtedly that dwelling place was there during all the previous years relevant to the assessment years and the assessee will have to be regarded as a resident in the taxable territories for the concerned years.
Counsel for the Revenue contended that the expression "maintains a dwelling place" inter alia connotes the idea that an assessee owns a dwelling house which he can legally and as of right occupy if he is so minded during his visits to India while the expression "has maintained for him a dwelling place" would cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in India though the expenses of maintaining such dwelling place are not met by him wholly or in part and since in the instant case it was a joint family dwelling house maintained by the Manager for the family wherein the assessee had a right of dwelling without any let or hindrance, it must be held that the assessee had maintained for him a dwelling house.
In support of these contentions strong reliance was placed by him upon two decisions one of the Madras High Court in section M. Zackariah Saheb vs C.I.T. Madras and the other of Gujarat High Court in Ramjibhai Hansjibhai Patel vs Income Tax Officer, Special Circle, Ahmedabad.
According to him the section merely speaks of a dwelling place of an assessee and does not require his actual residence in it nor does it require any establishment maintained by him or for him and it would be, therefore erroneous to introduce into the section the concept of 'attachment ' or 'permanence ' or 'home '.
On the other hand, counsel for the assessee contended that three aspects emerge from the phrase "he maintains or has maintained a dwelling place for him": (i) the volition of the assessee in maintaining the dwelling place or its maintenance being at his instance, behest or request, (ii) the expenses of maintenance must be met by the assessee and (iii) the house or a portion thereof must be set apart and kept fit for the dwelling of the assessee.
According to him what is contemplated by section 4A (a) (ii) is the de facto maintenance of a dwelling place for the assessee and not maintenance for him as one of a body of individuals; in other words, the section cannot apply to a case where a dwelling place is in possession of other members of the Hindu Undivided Family and the assessee has a right of common enjoyment.
Counsel contended that on the facts found in the case the 526 assessee had stayed in the family house as a guest and enjoyed the hospitality of his kith and kin and, therefore, though as a co parcener he had a right in the family house his occasional lodging there could not mean that he was maintaining the same or had it maintained for him.
In other words it was not his home.
Strong reliance was placed by him on the Bombay High Court decision in C.I.T. Bombay North, etc.
vs Falabhai Khodabhai Patel where the connotation of a "dwelling place" occurring in s.4A (a) (ii) was equated with a house which could be regarded by the assessee as his hime.
He urged that both the Tribunal and the High Court were right in coming to the conclusion that the family house had not been maintained for the benefit of the assessee as his abode or home away from Ceylon and, therefore, he was rightly regarded as a non resident.
At the outset it may be pointed out that the section uses the expression 'dwelling place ', a flexible expression, but the expression must be construed according to the object and intent of the particular legislation in which it has been used.
Primarily the expression means 'residence ', 'abode ' or 'home ' where an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute in the context of a provision which lays dawn a technical test of territorial connection amounting to residence, the concept of an abode on home would be implicit in it.
In other words, it must be a house or a portion thereof which could be regarded as an abode or home of the assessee in the taxable territories.
In our view, this aspect of the matter has been rightly emphasized by the Bombay High Court in Phulabhai Khodabhai 's case (supra), where Chief Justice Chagla has observed thus: "When we look at the language used by the Legislature, it is clear that what is sought to be emphasized is that there must be not only a residence or a house for the assessee in the taxable territories, but there must be a home.
The connotation of a dwelling place is undoubtedly different from a mere residence or a mere house in which one finds oneself for a temporary or short period.
A dwelling place connotes a sense of permanency, a sense of attachment, a sense of surroundings, which would permit a person to say that this house is his home.
Undoubtedly a man may have more than one home; he may have a home at different places; but with regard to each one of these he 527 must be able to say that it is something more than a mere house or a mere residence.
" Similar view was expressed by Mr. Justice Rowlatt in Pickles vs Foulsham, where the question whether the assessee was a resident in England for the purpose of payment of Income tax had to be decided on general principles in the absence of any statutory provision in the English statute with regard to residence as we have in our taxing statute.
At page 275 of the report the learned Judge observed thus: "A man, I suppose, may keep a house for his wife and come there merely as a visitor; he may keep a house for his mother, and, when he can get away, always go there to see her; but it may be that it is his mother 's house, even if he is paying for it, and he is going there as a visitor.
He keeps the house for his wife and children; it may be that he is going there as going home; it may be that that is the centre really of his life, that he keeps many belongings there, and so on, and his time in Africa is really, in truth, a period of enforced absence from what is truly his residence.
Now it may be one, or it may be the other.
" In other words, the test which the learned Judge laid down was that when you go to a house you should be really going home, then you are going to a dwelling house whether maintained by you or by someone else, a nda house may be your home whether it belongs to you or belongs to someone else.
In other words, with regard to the house where he goes and lives, he must be able to say that it is his abode or home.
It is, therefore, not possible to accept the contention of learned counsel for the Revenue that it is erroneous to introduce the concept of home or abode into the section.
Secondly, the section uses two expressions: "he maintains a dwelling place" and "he has maintained for him a dwelling place.
" The latter expression, obviously, means he causes to be maintained for him a dwelling place.
This is clear from the fact that the relevant provision in the 1961 Act has now been altered and it says "he causes to be maintained for him" and in the Notes on Clauses to the concerned Bill it has been explained that the words "has maintained" in section 4A(a)(ii), have been replaced in the draft by the words "causes to be maintained", which express the intention better.
Now, in either of these expressions the volition on the part of the assessee in the maintenance of the dwelling place emerges very clearly; whether he maintains it or he causes 528 it to be maintained, the maintenance of the dwelling place must be at his instance, behest or request and when it is maintained by someone else other than the assessee, it must be for the assessee or for his benefit.
Therefore, the question that will have to be considered in the instant case is whether on the facts found by the Tribunal the family house which was maintained by Ganesa as the Karta could be regarded as an abode or home of the assessee maintained at the instance of the assessee and for his benefit? The facts found in the instant case are: (1) the assessee, born and brought up in Ceylon, had his own business and properties in Ceylon, (2) he had 8 Children all born and educated in Ceylon, (3) the H.U.F. (of which the assessee was a coparcener at the material time) owned an ancestral house at Orthanad, which had been and was being used as a dwelling by the assessee 's step mother, his full brothers and his cousin Ganesa, and the same was being maintained by Ganesa out of income of family properties, (4) during the previous years relevant to the assessment years in question while the construction of the assessee 's theatre in Orthanad was in progress, the assessee paid occasional visits and stayed sometimes in the family house, sometimes in chatram at Tanjore and at times in a hotel, (5) there was positive evidence on record that during his stay in the family house the assessee was considered only as a guest enjoying the hospitality of the family, (6) the assessee admittedly never enjoyed any portion of the family income nor was he connected with the management of the family properties, including the house and (7) in July 1958 by a deed of release the assessee relinquished all his right, title or interest in the family properties in favour of his brothers.
On these facts it becomes transparently clear that the assessee whenever he stayed in the family house during the relevant previous years was more a guest therein enjoying the hospitality of his kith and kin than an inhabitant of his own abode or home and further that the family house was maintained by Ganesa not at the instance of the assessee nor for his benefit but it was maintained by him for the rest of the family.
It is true that the house at Orthanad was at the material time a joint family house in which the assessee as a co parcener had a share and interest; it is also true that as a coparcener he had a right to occupy that house without any let or hindrance, but mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of section 4A(a)(ii), for, the requirements thereof are: not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home.
The material on record shows that the family house in which he stayed was neither his abode or home nor 529 was it maintained by Ganesa at the instance of the assessee or for his benefit.
Turning to the two decisions one of the Madras High Court and the other of the Gujarat High Court on which reliance was placed by counsel for the Revenue, we may at once say that both the decisions are clearly distinguishable.
The decision of the Madras High Court in Zackriah Sahib 's case (supra) dealt with a case of an assessee who was a Muhammadan merchant.
He carried on business in Ceylon and resided there.
His parents lived in British India, as it then was, in a house owned by his mother.
The assessee 's wife also lived in British India sometimes with his parents and sometimes with her parents.
The assessee was remitting monies now and then to his parents for their maintenance.
He visited British India during the year of account and stayed in his mother 's house with his parents.
The Appellate Tribunal held that the assessee was resident in British India within the meaning of s 4A(a)(ii).
Reversing this decision, the Madras High Court held that the assessee did not maintain a dwelling place in British India and that his mother 's house was maintained for the parents of the assessee and not for the assessee himself.
Obviously, the house belonged to the mother of the assessee which he had no legal right to occupy and, therefore, it could not be said that the assessee maintained a dwelling place in British India.
Counsel, however, relied upon certain observations made by Vishwanatha Sastri, J., in that Judgment, which run thus: "The expression 'maintains a dwelling place ' connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy, if he is so minded, during his visit to British India. .In our opinion, the expression 'has maintained for him ' would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in British India though the expenses of maintaining the dwelling place are not met by him in whole or in part.
A member of an undivided Hindu family. .has a right to live in the family house when he goes there, though the house is maintained by the manager of the family and not by the assessee from his own funds.
In such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India.
" Relying on the aforesaid passage, counsel urged that in the instant case the house at Orthanad was maintained by Ganesa as a Karta of the family and since the assessee as a coparcener had a right to live in it 530 during his visits to India it must be held that the assessee had maintained for him a dwelling place in India.
It is not possible to accept this contention, for, in our view, the aforesaid passage, taken in its content, does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of section 4A(a)(ii); for, it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit.
That is how the aforesaid passage has been partly explained and, in our view, rightly, by the Madras High Court in a subsequent decision in C.I.T. Madras vs Janab A. P. Mohamed Noohu & Ors.
The Gujarat decision in Ramjibhai Hansjibhai 's case (supra) was clearly a case where the joint family house was maintained as a dwelling place for the benefit of all members of the joint family, including the assessee.
The main contention urged on behalf of the assessee in that case was that the dwelling house was not maintained for the assessee as an individual but it was maintained not only for him but for other members of the joint family as well and, therefore, the requirements of the section were not satisfied.
The contention was negatived.
In other words, it was not disputed in the Gujarat case that a dwelling house was maintained by the manager of the family for the benefit of the assessee.
In the instant case on the facts it has been found that the family house was maintained by Ganesa not for the assessee, nor for his benefit but for the other family members.
Having regard to the above discussion it is clear that though the assessee could be said to have had a share in the joint family house with a consequent right to occupy the same it could not be said that the said family house was maintained by Ganesa as the Karta of the family as a dwelling place for the assessee or for his benefit nor was it maintained by him at the instance of the assessee.
Moreover, his stay in the family house has been found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode or home.
In this view of the matter the assessee, in our view, was rightly regarded as a non resident.
The appeals are therefore, dismissed.
S.R. Appeals dismissed.

summary:
The assessee one of the sons of Subramania was born and brought up in Ceylon and had his own business and properties in Ceylon.
After the death of his father and his paternal uncle Arumugha, the assessee 's two other brothers Ganapathi and Velayadham and his cousin Ganesa son of Arumugha formed a Hindu Undivided Family.
That family owned an ancestral house at Orthanad in Tanjore district, which was used as dwelling by the step mother of assessee, his full brothers and his cousin Ganesa.
The family also owned shops and agricultural lands.
The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income.
The assessee never enjoyed any portion of the family income.
In July 1958 the assessee on the one hand and other members of the family on the other executed a mutual deed of release relinquishing each party 's rights in favour of the other; inter alia the assessee released all his rights, title and interest in the family properties in favour of his brothers, reciting therein that the family properties were never enjoyed by him but only by others.
This deed or release was found to be an instrument bona fide entered into by the parties.
It appears that he started constructing a theatre in Orthanad in 1953 which was completed in 1957 and during the said construction he paid occasional visits and stayed sometime in the family house, sometimes in a chatram in Tanjore and at times in a hotel.
Thus from 1 4 52 to 31 3 53 he stayed for 8 days in India, from 1 4 53 to 31 3 54 he did not come to India at all; from 1 4 54 to 31 3 55 he stayed for 28 days in India; from 1 4 55 to 31 3 56 he stayed for 47 days in India and from 1 4 56 to 31 3 57 he stayed for 23 days in India.
In the above circumstances for the assessment years 1952 53, 1953 54, 1956 57 and 1957 58, the assessee filed returns, but for the first two years after proceedings were initiated under section 34(i)(a) of the Act and for the latter two years on his own offering his income in Ceylon for assessment.
The status declared in all the returns was "he was a resident and ordinarily resident person".
The Income Tax Officer completed the assessment on the basis of the returns filed.
He also initiated penalty proceedings against the assessee under section 28(1)(a) for not filing the returns in time and levied penalties against him.
In the appeals preferred by the assessee which were principally directed against the rejection of the claim made by him in respect of the double taxation relief, an additional ground was taken that the assessee should have been treated as a 'non resident ' in all the years.
The Appellate Assistant Commissioner upheld this additional ground taking the view that since during his sojourn in India.
520 the assessee was staying in the family house more as a guest, he neither maintained nor had maintained a dwelling place in the taxable territories and, therefore, section 4A(a)(ii) of the Act was inapplicable.
Having lost their appeals before the Tribunal and on references to the High Court, the Revenue came up in appeal by certificates to this Court.
Dismissing the appeals, the Court, ^ HELD: 1. Section 4A(a)(ii) of the Income Tax Act, 1922 raises a statutory fiction since it is prefaced by the phrase "for the purposes of this Act".
Further the language of the provision makes it clear that it lays down a technical test of territorial connection amounting to residence applicable to all individuals foreigners as well as Indians, including Hindus, Christians, Muslims, Parsis and others irrespective of the personal law governing them.
[524 D E] 2.
Section 4A(a)(ii) makes it clear that before any individual can be said to be a resident in the taxable territories in any previous year two conditions are required to be fulfilled; (a) there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and (b) the assessee must live in the taxable territories (though not necessarily therein) for sometime, however short, in the previous years.
In the instant case, the second condition was satisfied in regard to the assessee.
[524E G] 3.
Section 4(A)(a) uses the expression 'dwelling place ' a flexible expression which should be construed according to the object and intent of the particular legislation in which it has been used.
Primarily the expression means 'residence ', "abode", or "home" where an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute, in the context of a provision which lays down a technical test of territorial connection amounting to residence, the concept of an abode or home would be implicit in it.
In other words, it must be a house or a portion thereof which could be regarded as an abode or home of the assessee in taxable territories.
In other words, when you go to a house you should be really going home, then you are going to a dwelling house whether maintained by you or by some one else and a house may be your home whether it belongs to you or belongs to some one else.
In other words, with regard to the house where he goes and lives, he must be able to say that it is his abode or home.
Therefore, there is no error in introducing the concept of home or abode into the section.
[526 C E, 527 E F] C.I.T. Bombay North etc.
vs Foolabhai Khodabhai Patel ; approved.
Pickles vs Foulsham, (1925) 9 Tax Cases 261; quoted with approval.
Section 4(A)(a) uses two expressions: "he maintains a dwelling place" and "he has maintained for him a dwelling place".
The latter expression, obviously means he causes to be maintained for him a dwelling place.
In either of these expressions the volition on the part of the assessee in the maintenance of the dwelling place emerges very clearly: whether he maintains it or he causes it to be maintained; the maintenance of the dwelling place must be at his instance behest or request and when it is maintained by someone else other than the assessee, it must be for the assessee or for his benefit.
[527 G H, 528 A] 521 Mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of section 4A(a)(ii), for the requirements thereof are: not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home.
[530 A B; 528 H] In the instant case, (i) on the material on record, the family house in which the assessee stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefit, even though it was true that the assessee as a coparcener had a share and interest in the family house and also a consequent right to occupy it without any let or hindrance.
[528 A, 529 A, 530 F] (ii) his stay in the family house was found to be as a guest enjoying the hospitality of his kith and kin, rather than as an inhabitant of his abode or home; and (iii) therefore, he was rightly regarded as non resident.
[530 F G] C.I.T., Madras vs Janab A. P. Mohamed Noohu and Ors., ; approved.
section M. Zackariah Sahib vs C.I.T., Madras Mad., Ramjibhai Hansibhai Patel vs Income Tax Officer, Special Circle, Ahmedabad, ; distinguished.