judgement:
Civil Appeal Nos.
1801 1805 of 1975.
From the Judgments and Orders dated the 27th January and 3rd February 1975 of the Karnataka High Court at Bangalore in STRPs.
14, 15 19, 26 & 32 of 1974.
N. Nettar for the Appellant.
J. Ramamurthy and Miss R. Vaigai for the Respondent.
Ex parte Respondents in CAs 1801 1803 & 1805/75.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question which arises for consideration in these appeals by certificate is whether the respondents (here 282 inafter referred to as 'the assessees ') are liable to pay purchase tax under section 6(i) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act ') on the turnover consisting of the price paid by them for purchasing paddy for the purpose of converting it into rice for sale, in their respective rice mills.
The assessees are owners of rice mills in the State of Karnataka and are registered dealers under the Act.
In the course of their business, they purchase paddy and after milling paddy sell the resultant rice.
During the assessment years, the assessees purchased paddy from agriculturists who were not liable to pay sales tax.
The assessing authority under the Act levied on the assessee in each of these cases purchase tax on the purchase turnover of paddy under section 6(i) of the Act.
The appeals filed by the assessees against the said assessments were dismissed by the appellate authority.
The Karnataka Sales Tax Appellate Tribunal allowed the appeals filed by the assessees against the orders of the appellate authority except the one filed by the assessee who is the respondent in Civil Appeal No. 1805 of 1975 holding that the conversion of paddy into rice did not involve any manufacturing process and that the purchase turnovers of paddy in those cases were not liable to tax under section 6(i) of the Act.
In the case of the assessee who is the respondent in Civil Appeal No. 1805 of 1975, the Tribunal held that the turnover was liable to be taxed as he had manufactured boiled rice out of the paddy purchased by him.
Aggrieved by the decisions of the Tribunal, the State Government filed revision petitions before the High Court under section 23(1) of the Act in the first four cases and the assessee filed a revision petition in the last case.
The High Court after holding that the turnovers in question were not liable to tax under section 6(i) of the Act dismissed the petitions filed by the State Government and allowed the petition of the assessee who is the respondent in Civil Appeal No. 1805 of 1975.
Thereafter the High Court granted by a common order a certificate of fitness in all these cases to prefer appeals before this Court to the State Government.
On the basis of said certificate, these appeals have been filed by the State Government against the orders of the High Court.
Since these appeals involve a common question of law, they are disposed of by this common judgment.
The relevant part of section 6 of the Act reads: "6.
Levy of purchase tax under certain circumstances.
Subject to the provisions of sub section (5) of 283 section 5, every dealer who in the course of his business purchases any taxable goods in circumstances in which no tax under section 5 is leviable on the sale price of such goods and, (i) either consumes such goods in the manufacture of other goods for sale or otherwise or disposes of such goods in any manner other than by way of sale in the state, or (ii). . . . shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under section 5." The contention of the State Government before the High Court was and before us is that the sale price of paddy which is a taxable commodity having not been subjected to tax under section 5 the assessees are liable to tax under section 6(i) of the Act as they had consumed it in the manufacture of rice which was a different commodity for sale.
The assessees ' contention which was accepted by the High Court is that paddy and rice being the same it cannot be said that they had manufactured 'other goods ' out of paddy and hence section 6(i) is not attracted.
Paddy and rice have been held to be different commodities by this Court in Ganesh Trading Co., Karnal vs State of Haryana & Anr.
in which it is observed thus: "Now, the question for our decision is whether it could be said that when paddy was dehusked and rice was produced its identity remained.
It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking.
It had changed its identity.
Rice is not known as paddy.
It is a misnomer to call rice as paddy.
They are two different things in ordinary parlance.
Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods".
284 The above view has been followed by this Court in Babu Ram Jagdish Kumar and Co. vs The State of Punjab & Ors.
It is unfortunate that the High Court as well as the Tribunal have tried to distinguish the decision of this Court in Ganesh Trading Co. 's case (supra) on insubstantial grounds, a detailed reference to which is unnecessary We reiterate the view expressed in the above two cases and hold that paddy and rice are two distinct commodities and that the milling of paddy involves a manufacturing process.
There is no merit in the submission made on behalf of the assessees that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills.
Consumption in the true economic sense does not mean only use of goods in the production of consumers ' goods or final utilisation of consumers ' goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or using of an automobile by its owner for domestic purposes.
A manufacturer also consumes commodities which are ordinarily called raw materials when he produces semi finished goods which have to undergo further processes of production before they can be transformed into consumers ' goods.
At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed.
Take the case of bread.
It passes through the first stage of production when wheat is grown by the farmer, the second stage of production when wheat is converted into flour by the miller and the third stage of production when flour is utilised by the baker to manufacture bread out of it.
The miller and the baker have consumed wheat and flour respectively in the course of their business.
We have to understand the word 'consumes ' in section 6(i) of the Act in this economic sense.
It may be interesting to note that this is the basis of the levy of 'Value Added Tax ', popularly called as VAT, which is levied as an alternative to tax on turnover in some Western countries.
The difference between 'Value Added Tax ', and tax on the turnover of sales or purchases is explained by Professor Paul A. Samuelson in his book entitled 'Economics ' (Tenth Edition, 1976) at page 168 thus: "A turnover tax simply taxes every transaction made: wheat, flour, dough, bread, VAT is different because it does not include in the tax on the miller 's flour that part of its 285 value which came from the wheat he bought from the farmer.
Instead, it taxes him only on the wage and salary, cost of milling, and on the interest, rent, royalty, and profit cost of this milling stage of production.
(That is, the raw material costs used from earlier stages are subtracted from the miller 's selling price in calculating his "value added" and the VAT tax on value added. . )" At every stage of production, it is obvious there is consumption of goods even though at the end of it there may not be final consumption of goods but only production of goods with higher utility which may be used in further productive processes.
While construing the word 'consumption ' which was found in the Explanation to Article 286(1)(a) as it stood prior to its deletion by the Constitution (Sixth Amendment) Act, 1956, this Court in M/s. Anwarkhan Mahboob Co. vs The State of Bombay & Ors.
observed thus: "The Act of consumption with which people are most familiar occurs when they eat, or drink or smoke.
Thus, we speak of people consuming bread, or fish or meat or vegetables, when they eat these articles of food; we speak of people consuming tea or coffee or water, when they drink these articles; we speak of people consuming cigars or cigarettes or bidis, when they smoke these.
The production of wealth, as economists put it, consists in the creation of "utilities".
Consumption consists in the act of taking such advantage of the commodities and services produced as constitutes the "utilization" thereof.
For each commodity, there is ordinarily what is generally considered to be the final act of consumption.
For some commodities, there may be even more than one kind of final consumption.
Thus grapes may be "finally consumed" by eating them as fruits; they may also be consumed by drinking the wine prepared from "grapes".
Again, the final act of consumption may in some cases be spread over a considerable period of time.
Books, articles of furniture, paintings may be mentioned as examples.
It may even happen in such cases, that after one consumer has performed part of the final act of consumption, another portion of the final act 286 of consumption may be performed by his heir or successor in interest, a transferee, or even one who has obtained possession by wrongful means.
But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption, should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption.
" Applying the above test, it has to be held that the assessees had consumed the paddy purchased by them when they converted it into rice which is commercially a different commodity.
Since it is not disputed that the sales of paddy, which is a taxable commodity, in favour of the assessees had not suffered tax under section 5 in view of the circumstances in which they had taken place and it is held that the assessees had consumed paddy in the manufacture of rice which was a different commercial commodity for sale, the case of the assessees squarely falls under section 6(i) of the Act.
The charge under section 6(i) should, therefore, be given due effect.
This view is in accord with the opinion of this Court in State of Tamil Nadu vs M. K. Kandaswami etc.
and in Ganesh Prasad Dixit vs Commissioner of Sales tax, where provisions corresponding to section 6(i) of the Act arose for consideration.
It is next contended that since the assessees would be exposed to double taxation both as buyers of paddy and as sellers of rice we should hold that the levy in question is impermissible because paddy and rice are liable to be taxed at a single point.
No provision is shown to us which bars such taxation when the commodities are different.
In fact, in this case there is no double taxation on the same commodity.
A similar contention was rejected by this Court in the case of Babu Ram Jagdish Kumar (supra) thus: "We may at this stage refer to one other subsidiary argument urged on behalf of the appellants.
It is argued that because paddy and rice are not different kinds of goods 287 but one and the same, the inclusion of both paddy and rice in Schedule C to the Act would amount to imposition of double taxation under the Act.
There is no merit in this contention also because the assumption that paddy and rice are one and the same is erroneous.
In Ganesh Trading Co., Karnal vs State of Haryana (1973) 32 S.T.C. 623 (S.C.), arising under the Act, this Court has held that although rice is produced out of paddy, it is not true to say that paddy continued to be paddy even after dehusking; that rice and paddy are two different things in ordinary parlance and, therefore, when paddy is dehusked and rice produced, there is a change in the identity of the goods.
" In the result these appeals are allowed, the judgments of the High Court against which these appeals are filed are set aside and the turnover in question in each case is held to be taxable under section 6(i) of the Act.
There shall, however, be no order as to costs.

summary/full:
The assessees (respondents) are the owners of rice mills and are registered dealers under the Karnataka Sales Tax Act, 1957.
In the course of their business, they purchase paddy and after milling paddy, sell the resultant rice.
During the assessment years, the assessees purchased paddy from agriculturists who were not liable to pay sales tax.
The assessing authority under the Act levied on the assessee in each of these cases purchase tax on the purchase turnover of paddy under section 6(i) of the Act.
The appeals filed by the assessees were dismissed by the Appellate Authority except the one, holding that the conversion of paddy into rice did not involve any manufacturing process and that the purchase turnovers of paddy in those cases were not liable to tax under section 6(i) of the Act.
In the case of the other assessee, the Tribunal held that the turn over was liable to be taxed as he had manufactured milled rice out of the paddy purchased by him.
The appellant filed revision petitions in the High Court and the assessee filed revision petition in the last case.
The High Court after holding that the turn overs in question were not liable to tax under section 6(i) of the Act dismissed the petitions filed by the appellant and allowed the petition of the last assessee.
The High Court granted a certificate of fitness to this Court.
The appellant argued that the sale price of paddy which is a taxable commodity having not been subjected to tax under section 5, the assessees were liable to tax under section 6(i) of the Act as they had consumed it in the manufacture of rice which was a different commodity for sale.
The respondent argued that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills.
Allowing the appeals, ^ HELD: 1.
(i) Paddy and rice are two distinct commodities.
The milling of paddy involves a manufacturing process.
[284 B] (ii) The levy in question is not impermissible even though paddy and rice are liable to be taxed at a single point, as in fact there is no double taxation on the same commodity.
[286 F G] 281 Ganesh Trading Co. Karnal vs State of Haryana and Anr.
32 S.T.C. 623, Babu Ram Jagdish Kumar and Co. vs The State of Punjab and Anr.
44 S.T.C. 159 affirmed.
Consumption in the true economic sense does not mean only use of goods in the production of consumer goods or final utilisation of consumer goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or using of an automobile by its owner for domestic purposes.
A manufacturer also consumes commodities which are ordinarily called raw materials when he produces semi finished goods which have to undergo further processes of production before they can be transformed into consumer goods.
At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed.
[284 D E] 3.
At every stage of production there is consumption of goods even though at the end of it there may not be final consumption of goods but only production of goods with higher utility which may be used in further productive processes.
[285 B B] M/s.
Anwar Khan Mahboob Co. vs The State of Bombay and Ors.
at pp.
715 716; Economics (Tenth Edition 1976) at page 168 by Professor Paul A. Samuelson, referred to.
In the instant case, the assessees had consumed that paddy purchased by them when they converted it into rice which is commercially a different commodity for sale.
The case of assessees therefore, squarely falls under section 6(i) the Act.
[286 C] State of Tamil Nadu vs M. K. N. Kandaswami etc.
; , Ganesh Prasad Dixit vs Commissioner of Sales Tax ; , referred to.


judgement:
: Criminal Appeal No. 60 of 1981.
Appeal by Special Leave from the Judgment and Order dated 8 4 1980 of the Punjab and Haryana High Court in Criminal Revision No. 342 of 1980.
M. section Dhillon for the Appellant.
T. section Arora for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the Judgment of the Punjab and Haryana High Court dated 8th April, 1980 by which the respondent Sarwan Singh was acquitted of the charge under section 406 of the Indian Penal Code.
It appears that the respondent accused was charged under section 406 of the Penal Code for misappropriating the amounts deposited with him as a cashier of the Tanda Badha Co operative Society, District Patiala.
The challan was presented against the accused on the 13th October, 1976.
The trial court after recording the evidence acquitted the respondent of the charge under section 408 but convicted the respondent of the charge under section 406 and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ .
The respondent then filed the appeal to the High Court which allowed the appeal and acquitted the respondent mainly on the ground that the prosecution launched against the respondent was clearly barred by limitation under sections 468 and 469 of the Code of Criminal Procedure.
The High Court was of the view that the charge sheet clearly shows that the embezzlement is said to have been committed on 22nd August, 1972 and the audit report, through which the offence was detected is dated 5th January, 1973.
Taking any of these dates, the prosecution was barred by limitation under section 468 (2) (c) of the Code.
In our opinion, the High Court has taken the correct view of the law.
Section 468(2) (c) may be extracted thus: Sec.
468 (2) (c): "three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
" 351 Section 469 (1) (a) and (6) may be extracted thus: "(a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier;" In the instant case as the charge sheet clearly mentions that the offence was committed on the 22nd August, 1972, the bar of limitation contained in section 468 (2) (c) clearly applies and the prosecution therefore, is clearly barred by limitation.
Even assuming that so far as, the offender is concerned, the commission of the offence came to knowledge of the officer concerned, it would be so according to charge sheet on January 5, 1973, the date when the audit report was made.
Even if this extreme position be accepted, the prosecution would still be barred by limitation under section 469(b) of the Code of Criminal Procedure, 1973.
Counsel for the State of Punjab was unable to assail the point of law derived by the High Court regarding the interpretation of section 468.
The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence.
The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in article 21 of the Constitution of India.
It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.
The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein become non est.
For these reasons given above, we hold that the point of law regarding the applicability of Section 468 of the Code of Criminal Procedure has been correctly decided by the Punjab and Haryana High Court.
This Court has also taken the same view in a number of decisions.
The result is that the appeal fails and is dismissed.
The respondent will now be discharged from his bail bonds.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Based on the audit report dated January 5, 1973 revealing an embezzlement having been committed by the Respondent on 22.8.1972, a challan was presented against him on the 13th October, 1976 under Sec.
406 Penal Code for misappropriating the amounts deposited with him as a Cashier of the Tanda Badha Co operative Society, district Patiala.
The Trial Court convicted the respondent under section 406 Penal Code and sentenced him to rigorous imprisonment for one year and to pay a fine of Rupees one thousand.
The respondents ' appeal to the High Court was allowed accepting the plea of bar of limitation under section 468 of the Criminal Procedure Code.
Hence the State appeal after obtaining special leave of the Court.
Dismissing the appeal, the Court, ^ HELD: (1) Taking any of these dates, namely, 22nd August 1972, (Commission of embezzlement), and 5th January 1973 (date of detection of embezzlement) the prosecution was barred by limitation under sections 468(2) (a) and 469(b) of the Code of Criminal Procedure.
Therefore, the conviction and the sentence of the respondent as also the entire proceedings culminating in his conviction became non est.
G] (ii) The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence.
The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in article 21 of the Constitution of India.
It is, therefore, of the utmost importance that any prosecution, whether by the State or a private party must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.
[351 E F] 350


judgement:
ivil Appeal Nos.
490 and 2228 (N) of 1970.
Appeals by certificate from the Judgment and order dated 9 10 1969 & 14 1 1970 of the Punjab and Haryana High Court in Letters Patent Appeal Nos.
553 of 1968 & 570 of 1969 respectively.
332 Hardev Singh and R.S. Sodhi for the Appellants (In both the Appeals.) K C. Bhagat and R.N. Podar for the Respondent (in both the Appeals) The Judgment of the Court was delivered by FAZAL ALI, J.
These two appeals by certificate are directed against judgments dated 9.10.69 and 14.1.1970 of the Punjab and Haryana High Court in Letters Patent Appeals Nos.
553 of 1968 and 570 of 1969 by which the contentions raised by the appellants in the two appeals were rejected.
After the matter came up in this Court the two appeals were consolidated as they arose out of almost the same subject matter and involved identical points.
The facts which have given rise to these appeals lie within a very narrow compass and may be briefly summarised thus.
The appellants were refugees from Pakistan and Sant Singh Nalwa was allotted 63 standard acres and 8/1/4 units in village Marghain and another area of 19 standard acres and 5 units in Garden Colony in Jundla which were entered as sailab land in the revenue records.
The other appellant, Kartar Kaur, was allotted 96 acres, 3 bighas and 13 biswas in the same district.
These lands were given to the appellants as they were displaced persons.
After the appellants had become owners of the lands, the State of Punjab passed the Punjab Security of Land Tenures Act, 1953, (hereinafter referred to as the 'Act ') which later applied to Haryana also, under which every land owner whether a displaced person allottee or otherwise could not retain any area of land which fell beyond the extend prescribed by sub section (3) of section 2 of the Act.
After the coming into force of the Act the revenue authorities proceeded to determine the permissible area of the land of both the appellants so that the area which was found to be in excess may be taken over by the State after paying the compensation as provided in the Act and the Rules made thereunder, viz., The Punjab Security of Land Tenures Rules, 1953 (hereinafter called the 'Rules ').
In order to determine the permissible area the Act contains certain provisions by which the entire area held by a land owner has to be converted into standard acres on the basis of a formula contained in sub section (5) of section 2 of the Act which defines 'standard acre ' thus: " 'Standard acre ' means a measure of area convertible into ordinary acres of any class of land according to the 333 prescribed scale with reference to the quantity of yield and quality of soil.
" Similarly, the relevant portion of sub section 5 a which defines 'Surplus Area ' may be extracted thus: " 'Surplus Area ' means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected (under section 5 B or the area which is deemed to be surplus area under sub section (1) of section 5C) (and includes the area in excess of the permissible area selected under section 19 B) but it will not include a tenant 's permissible area;. " So far as the appellant, Sant Singh Nalwa, was concerned, the revenue authorities held that he was entitled to retain 50 (fifty) standard acres being the permissible area and the balance of 13 standard acres and odd units was declared as surplus.
Similarly, in the case of the other appellants, Kartar Kaur, she was allowed to retain 50 standard acres and about 15 standard acres of land was taken over being surplus.
In the instant appeals, there is no dispute that the formula by which the extent of the land in possession of the appellants had been converted into standard acres was not in accordance with the provisions of the Act.
The only point that was canvassed before the revenue authorities as also in the High Court centered round the question of the nature of the land and the valuation thereof for the purpose of assessing compensation.
The appellants case was that as the lands which had been declared surplus or for that matter the entire lands/allotted to them as displaced persons fell in a portion of District Karnal which was sailab and Adna sailab and therefore according to the classification made under the Rules they did not carry any valuation.
Sant Singh Nalwa challenged before the Collector the validity of declaration of the surplus area and contested the valuation put by the Collector.
The Collector dismissed the application by his order dated 13.3.1963 and held that 13 standard acres and 6 units of the land had to be declared surplus.
Against this order, Sant Singh filed an appeal before the Additional Commissioner, Ambala Division where the only point raised by him was that the area was not correctly evaluated.
His main grievance was that the area in question was equated with Barani land and valuated at the rate of unirrigated area as given in the valuation statement of the Karnal District under Annexure 'A ' of the Rules.
The main contention of 334 the appellants before the Commissioner as also before us was that as the surplus area does not fall under any of the categories mentioned in Annexure 'A ' it carried no valuation at all.
The Commissioner, however, dismissed the appeal holding that the collector was right in treating the surplus area as an unirrigated area and valuing the same at 9 annas per standard acre.
Thereafter, the appellant filed a writ petition before the High Court which was allowed by the Single Judge by his order dated July 23, 1963.
The Single Judge set aside the orders of revenue courts and accepted the contention of the appellant.
Against this order, the Financial Commissioner filed an appeal under Letters Patent before a Division Bench of the High Court which by its judgment dated 9.10.69 allowed the appeal and dismissed the writ petition filed by the appellant before the High Court.
Similarly, Kartar Kaur, the other appellant also filed an appeal before the Additional Commissioner, Ambala Division regarding the surplus land and having failed there, filed a writ petition in the High Court on 10.2.1965 which was ultimately dismissed on 10.10.69 and the appeal under Letters Patent against the said order of the Single Judge was also dismissed on 14.1.70.
Thus, the position is that both the appellants failed to get any redress from the High Court which ultimately confirmed the orders of the Revenue courts.
The learned counsel for the appellants raised two contentions before us.
In the first place, it was argued that the Revenue courts as also the High Court were in error in holding that the surplus area was rightly evaluated in as much as the classification made under the Rules was ultra vires as being in direct disobedience to the mandate contained in sub section (5) of section 2 of the Act.
In other words, it was argued that whereas sub section (5) directed the Government to frame Rules after considering the quantity of the yield and quality of soil, in the Rules framed by the Government under its rule making power given to it by the Statute the main guidelines laid down by sub section (5) were not followed and the classification made by the Rules under Annexure 'A ' was arbitrary without determining the quantity of the yield and the quality of the soil.
We might mention here that this contention appears to have found favour with the Single Judge in the writ petition filed by the appellant, Sant Singh Nalwa but the judgment of the Single Judge ' 335 as already indicated, was reversed by the Division Bench in the Letters Patent appeal.
Secondly, it was contended that even if the classification made in Annexure 'A ' was valid, the Revenue courts as also the High Court committed an error of Law in misconstruing the classification and in arbitrarily placing the surplus area in the category of unirrigated land.
Coming now to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention.
Sub section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil.
The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the lands according to the quantity of yield and quality of the soil into various categories.
A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of the land.
As far back as 1952, a Land Resettlement Manual was prepared by Tarlok Singh, which was relied upon by the judgment of the Single Judge and at p. 287 the land has been classified in following categories: "Chahi and Abi Chahi Nehri Unirrigated Nehri Non Perennial or other Nehri or Nehri Inundation" This classification varies from District to District and Tarlok Singh has also given the approximate value of the land.
After going through the Land Resettlement Manual we find that the classification has been made in a very scientific manner after taking into consideration the relevant factors.
Even Sir James M. Douie in his Punjab Settlement Manual (4th Edition), which is undoubtedly a work of 336 unimpeachable authenticity, as pointed out by the Single Judge, had made a classification which is almost similar to the one made by Tarlok Singh.
It is, however, obvious that the Punjab Settlement Manual by Sir Douie was made long ago and since then there have been great changes resulting from various steps taken by the Government for improving the nature and character of the land and the irrigation facilities.
It is, therefore, not possible for us to rely on the Manual prepared by Sir Douie as the Single Judge had done because that would not be an objective assessment.
Even so, the classification made by Sir James Douie has been adhered to broadly and basically by Tarlok Singh in his Manual which forms the pivotal foundation for the schedule containing Annexure 'A ' framed under the Rules.
The classification of land like barani, sailab, abi, nehri, chahi, etc., are clearly mentioned in para 259 of Sir James 's Punjab Settlement Manual which Sarkaria, J., as he than was, rightly classed as the Bible of Land Revenue Settlement.
The point, however, that has to be considered in this case is whether the rule making authority has in any way departed from the mandate given or the guidelines contained in the Act.
There does not appear to be any material to show that the Rule Making Authority has in any way either departed from the principles mentioned in sub section (5) of section 2 of the Act or violated the guidelines contained therein.
The appellants were not able to show that the classification made under the Rules has not been made according to the quantity of the yield or the quality of the soil.
Neither any affidavit nor any document has been produced before the courts below to prove this fact.
In this state of the evidence the Single Judge was not justified in striking down the Rules as being ultra vires.
Moreover, it is obvious that the Rules were made under section 27 of the Act which authorises the Government to make rules for carrying out the purposes of the Act.
If the dominant object of the Act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of s.2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act.
Moreover, in Jagir Singh and Ors.
vs The State of Punjab and Ors.
a Division Bench of the Punjab High Court while considering a similar contention rejected the argument that the Annexure framed under the Rules was bad as it did not consider the nature 337 and quality of the Soil.
In this connection, the Division Bench observed thus: "It is thus clear that the formation of an assessment circle necessarily takes into consideration the various factors mentioned by the learned author and those include the nature of soil and its quality apart from various other factors affecting the yield.
The circumstance therefore, that in the Annexure the State of Punjab has been split up into assessment circles, as determined at the time of the Settlement, is highly significant, and leaves no doubt that Settlement, is highly significant and leaves no doubt that the nature and the quality of the soil inherent in the formation of an assessment circle have been taken into consideration for valuing the land for purposes of its conversion into standard acres.
At the same time, the existing sources of irrigation have all been taken into consideration.
It is, in the circumstances, impossible to agree that the Annexure in any manner violates the direction contained in the Punjab Security of Land Tenures Act.
We are, in the circumstances, unable to agree that the disputed rule and Annexure 'A ' attached to the Rules are ultra vires the Punjab Security of Land Tenures Act.
" We find ourselves in complete agreement with the observations made by the High Court and endorse the same.
With due respect, the view taken by Sarkaria J., as he then was (the single Judge in the instant case) is not at all in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature extent and ambit of the classification made in annexure 'A '.
We therefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of section 2 of the Act and is therefore, constitutionally valid.
The first contention put forward by the counsel for the appellants is therefore overruled.
Coming now to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area.
We find no substance in this argument.
The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab & Haryana Local Acts (vol VII) where while lands 338 classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non perennial are mentioned, there is no mention of sailab or adna sailab lands.
Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat.
Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made.
Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants.
The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre.
We, therefore, find no error in the classification made by the revenue authorities.
We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules.
A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extracted thus: "2.
Conversion of ordinary acres into standard acres.
The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure 'A ' to these rules for such class of land in the said assessment circle; Provided that the valuation shall be (a) in the case of Banjar Qadim land, one half of the value of the class previously described in the records and in the absence of any specific class being stated, one half of the value of the lowest barani land.
(b) in the case of Banjar Jadid land, seven eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and (c) in the case of cultivated thur land subject to waterlogging, one eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest barani land.
" 339 The three categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub clauses of the proviso.
For these reasons, the second contention is overruled.
The result is that we find no merit in the appeals which are accordingly dismissed but in the circumstances without any order as to costs.
N.V.K. Appeals dismissed.

summary/full:
The appellants who were displaced persons were allotted land which was entered as sailab land in the revenue records and they became the owners of these lands.
After the coming into force of the Punjab Security of Land Tenures Act, 1953, the Revenue Authorities proceeded to determine the permissible area of the land of the appellants under section 2(3).
They allowed 50 standard acres of land to each of the appellants and declared the balance as surplus land.
The appellants claimed that the lands allotted to them as displaced persons fell in a portion of District Karnal which was sailab and adna sailab and according to the classification made under the Punjab Security of Land Tenures Rules, 1953 they did not carry any valuation.
The Collector dismissed their application.
The Commissioner dismissed their appeals holding that the Collector was right in treating the surplus area as an unirrigated areas and valuing the same at nine annas per standard acre.
A single Judge accepting the contention of the appellant in his writ petition set aside the orders of the Revenue Court.
The Financial Commissioner filed an appeal which was allowed by the Division Bench and the writ petition was dismissed.
In the appeals to this Court it was contended on behalf of the appellants that (1) whereas sub section (5) of section 2 of the Act directed the Government to frame Rules after considering the quantity of the yield and quality of soil, in the Rules framed by the Government the main guide lines laid down by sub section(5) were not followed, and the classification made by the Rules under Annexure 'A ' was arbitrary without determining the quantity of the yield and quality of the soil, and (2) that even if the classification made in Annexure 'A ' was valid, the Revenue Courts as also the High Courts committed an error of law in misconstruing the classification and in arbitrarily placing the surplus area in the category of unirrigated land.
331 Dismissing the appeals, ^ HELD: 1(i) The view of the single Judge is not in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature, extent and ambit of the classification made in Annexure 'A '.
The classification is in accordance with provisions of sub section (5) of section 2 of the Act and is, therefore, constitutionally valid.
[337 E F, G] (ii) The Land Resettlement Manual prepared in 1952 by Tarlok Singh shows that the classification has been made in a very scientific manner after taking into consideration all the relevant factors.
The Punjab Settlement Manual (4th Edition) prepared by Sir James M. Douie though possessing unimpeachable authenticity was made long ago and since then there have been great changes resulting from various steps taken by the Government for improving the nature and character of the land and the irrigation facilities.
Even so, the classification made by Sir James Douie has been adhered to broadly and basically by Tarlok Singh in his Manual which forms the pivotal foundation for the schedule containing Annexure 'A ' framed under the Rules.
[335H 336 C] (iii) The classifications of land like barani, sailab, abi, nehri, chahi etc.
are clearly mentioned in the Punjab Settlement Manual.
The Rule Making Authority has not in any way either departed from the principles mentioned in sub section(5) of section 2 of the Act or violated the guidelines contained therein, nor could it be said that the classification made under the Rules has not been made according to the quantity of yield or the quality of the soil.
[336 C, D E] (iv) If the dominant object of the act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of section 2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act.
[336 G] Jagir Singh and Ors.
vs The State of Punjab and Ors., 44 (1965) Lahore Law Times 143, approved.
2.(i) There was no error in the classification made by the revenue authorities.
So far as Karnal District was concerned, there was no sailab land at the time when the Rules were framed and the classification was made.
Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas which could be more deterimental to the interest of the appellants.
The Collector and the Commissioner have rightly treated the land as unirrigated which is the lowest category and whose valuation is given as nine annas per acre.
[338C, B] (ii) The three categories given in clauses (a), (b) and (c) of Rule 2 do not cover the land of the appellants which is sailab or adna sailab and therefore, they cannot be given the benefit of any of these three sub clauses of the proviso.
[339 A]


judgement:
Civil Appeal No. 1958 of 1980.
Appeal by Special Leave from the Judgment and Order dated 20th July 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2135/79.
P. P. Rao and C. M. Nayar for the Appellants.
O. P. Sharma and M M. Dhillon for Respondents Nos.
1 5. section M. Ashri & G. K. Bansal for the other appearing Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave from a judgment of the Punjab & Haryana High Court, raises a question of some complexity.
The question is when there is a notification issued under sub section
(3) of section 5 of the Punjab Municipal Act, 1911, for inclusion of certain local areas within the limits of a municipality, whether it is permissible for the State Government to hold elections in the municipality without delimitation of wards and preparation of fresh electoral rolls.
It arises under the following circumstances.
In exercise of their powers under sub section
(3) of section 5 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act '), the State Government of Punjab by notification dated August 2, 1976, directed inclusion of certain local areas.
The local areas so included are: (1) Moranwali Panchayat Area, (2) Grain Market Area, (3) Guja Peer Basti, (4) Jakhal Road, (5) ITI Area, (6) BDO Block, (7) Tehsil Court Area and (8) Thei Area.
The Gram Panchayat, Moranwali challenged the validity of the said notification by a writ petition filed before the High Court.
A learned Single 343 Judge granted an ad interim stay staying the operation of the impugned notification.
The writ petition was dismissed by the learned Single Judge on October 23, 1978.
Thereupon, the Gram Panchayat preferred a Letters Patent Appeal and prayed for grant of stay of operation of the impugned notification.
On December 19, 1978, a Division Bench passed the following order: Admitted.
Stay dispossession ad interim.
Notice regarding stay.
It is common ground that eventually the stay was confirmed by the Division Bench and remained operative till April 1, 1980 when the Letters Patent Appeal was dismissed.
In the meanwhile, the State Government decided to hold the elections of councillors of the Sunam Municipality on the basis of the old municipal limits, i.e. from the existing 15 wards, along with those of the 42 other municipalities, since proviso to sub section
(3) of section 13 of the Act, inserted by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the State Government to hold such elections before June 30, 1979.
Accordingly, the Deputy Commissioner issued a notification on April 6, 1979 under r. 3 of the Election Rules, 1952, specifying that the elections in the municipality shall be held on June 10, 1979.
On June 23, 1979, i.e. after the whole process of election was over, the appellants, who seek to represent about 1000 voters from the local areas newly added to the municipal limits, filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared.
The High Court, by its order dated July 20, 1979, declined to set aside the elections held, but directed that the local areas be given representation under sub section
(5) of section 5 of the Act.
In support of the appeal, there is a two fold contention advanced.
In the first place, the submission is that when a local area is included within a municipality, elections cannot be held without delimitation of wards and preparation of fresh electoral rolls; and secondly, the submission is that, in any event, with the vacation of stay, the election was invalidated.
The first of these submissions is unexceptionable, but it does not arise, and the second appears to us to be wholly devoid of substance.
Sub section
(5) of section 5 of the Punjab Municipal Act, 1911, which is relevant for our purposes, reads as follows: 344 (5) When any local area included in a municipality under sub section (3) is a Sabha area, or a part thereof under the Punjab Gram Panchayat Act, 1952, representation to the inhabitants of the local area so included on the committee of the municipality, in which local area is included, shall be given in the prescribed manner.
The Act does not prescribe the manner of giving representation to the inhabitants when any local area included in a municipality under sub section
(3) of section 5 is a Sabha area, unlike that in the case of a municipality or a notified area for which an express provision is made in sub section (6) thereof.
The matter, therefore, falls to be governed by the Election Rules, 1952 and the Delimitation of Wards of Municipalities Rules, 1972, framed by the State Government in exercise of their powers under section 240 (1) (b) and (c) and section 258 of the Act.
Whenever there is a change in the limits of a municipality, the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards.
The delimitation of wards, a delicate and important task.
is entrusted to a Delimitation Board constituted under r. 3 of the Delimitation of Wards of Municipalities Rules, 1972 and under r. 4 thereof it is the duty of the Delimitation Board to effect a re division of a municipality.
That rule reads thus: 4.
Functions of the Board it shall be the duty of the Board: (i) to divide the Municipality into such number of wards as may be necessary, having regard to the number of elected members prescribed by the State Government, for the Committee, and the number of seats reserved for members of the Scheduled Castes; and (ii) to re adjust the wards as and when the limits of the Municipality are altered or there is increase in population of the Municipality or there is abnormal variation in population or voting figures of some of the wards of the Municipality, which requires, such re adjustment.
In the delimitation of wards, the Board must observe the principles laid down in r. 6, namely, (1) all wards shall, as far as practicable, be geographically compact areas, and in delimiting them due regard shall be had to physical features, existing boundaries of administra 345 tive units, if any, facilities of communication and public convenience; (2) wards in which seats are reserved for the Scheduled Castes shall be located, as far as practicable, in those areas where the proportion of their population to the total population of the municipality is the largest; and (3) each municipality shall be divided into wards in such manner that the population of each ward, as far as practicable, is the same throughout the municipality, with a variation upto 10 per cent above or below the average population figures.
While making a re division, it may not be possible to achieve mathematical perfection, but there must definitely be a substantial compliance with the requirement that every person should have an equal vote.
The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities.
When a municipality is re constituted by the inclusion of any local area within the limits of a municipality under sub section
(3) of section 5 or by the exclusion of any local area from the limits of a municipality under section 7, i.e. when there is an alteration of the limits of the municipality, there must of necessity be a division of the re constituted municipality into new wards without which the elections cannot be held.
There can be no disenfranchisement of a part of the electorate of a municipality.
The question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Maganlal Shah vs The State of Gujarat & Ors.
and it was observed: It must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the municipal district is a sine qua non of a valid election.
If no wards at all are constituted in the municipal district, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards.
In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no lists of voters so far as the other part of the municipal district is concerned and no one from that part would be qualified to vote or to stand as a candidate for the election and no Councillors being elected by 346 that part, there would be no representation of that part on the municipality.
Where such a situation arises, it is difficult to see how the Municipality can be said to be a Municipality for the whole of the municipal district within the meaning of section 9.
We approve of the view taken by the Gujarat High Court.
There can be no dispute with the principle that the State Government without re constituting a municipality into new wards, cannot proceed to hold an election of councillors, when there is an extension of the municipal limits, but the difficulty is about the applicability of that principle to the facts of the present case.
There is no denying the fact that the effect of the stay order passed by the learned Single Judge staying the operation of the notification issued under sub section
(3) of section 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits.
It is also an undisputed fact that the stay order passed by the learned Single Judge was in force from August 2, 1978 to October 23, 1978.
It is, however, urged that with the dismissal of the writ petition by the learned Single Judge on October 23, 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoral rolls.
We are afraid, the contention cannot be accepted.
The case presents a rather disturbing feature.
There were drastic changes brought about in section 13 of the Act dealing with the term of councillors leading to the supersession of all municipalities in the State and casting an obligation on the State Government to hold fresh elections of councillors, before June 30, 1979.
In these circumstances, the Division Bench should have acted with greater circumspection.
On the contrary, the Division Bench, on December 19, 1978 passed a stay order staying the dispossession of the Gram Panchayat although the Gram Panchayat had applied for staying the operation of the impugned notification.
It is somewhat unfortunate that the stay order passed by the Division Bench was couched in rather ambiguous terms, but it had virtually the same effect as the one passed by the learned Single Judge.
It is difficult to comprehend the distinction between "stay of dispossession of the Gram Panchayat" and "stay of operation of the impugned notification".
Apparently, the Division Bench, without applying its mind, passed an order staying dispossession of the Gram Panchayat, failing 347 to realise that the effect of stay would dislocate the whole electoral process.
When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub section
(3) of section 5, was kept out of such limits by reason of the stay order passed by the Division Bench, there would obviously be no delimitation of the municipality into new wards.
There was some doubt created about the purport and effect of the stay order passed by the Division Bench.
This brought about an inevitable chain of events.
After the Division Bench passed the order on December 19, 1978, the State Minister for Transport who represented the Sabha Areas in the State Legislative Assembly wrote to the Minister for Local Self Government to postpone the elections scheduled to be held for the municipality.
When the exact nature of the stay order was brought to the notice of the Minister, he agreed with the view of the Local Self Government Department that the elections to the municipality could not be held without a delimitation of the municipal area.
Eventually, the State Government had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, i.e. from the existing 15 wards, due to the amendment of Proviso to sub s.(3) of s.13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the election before June 30, 1979.
There can be no doubt that the State Government acted with the best of intentions in deciding to hold the elections.
The election so held on June 10, 1979 was a valid election and the councillors elected are entitled to run their full term of five years as provided by sub s.(2) of section 13.
The contention that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1, 1980, the whole election would be invalidated, must, therefore, fail.
We are distressed to find that due to the stay order passed by the Division Bench a large number of inhabitants of the local areas brought within the municipal limits under sub s.(3) of s.5 of the Act, who were otherwise eligible to be enrolled as voters, have thereby been deprived not only of their valuable right to vote at the election but also of the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice President.
But there is little that can be done in the matter at this stage.
Driven to this situation brought about by the stay orders of the High Court, there is no other alternative but to direct that 348 the local areas included in the municipality under sub section
(3) of section 5 should be formed into a ward or wards and representation given to them under sub section
(5) of section 5 of the Act.
The term of the councillors so elected from such local areas shall be co terminus with the term of the councillors already elected from the existing 15 wards.
We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction.
This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High Court.
The interim arrangement cannot obviously extend beyond the term of the present council.
We hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under r. 3 of the Delimitation of Wards of Municipalities Rules, 1972.
After the delimitation of the municipality into new wards, the State Government shall proceed to re fix the number of councillors of the re constituted municipality under section 11, prescribe the number of elected councillors afresh as required under cl.
(a) of sub section
(1) of section 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under rr. 8 and 8A of the Election Rules.
In the result, the appeal fails and is dismissed.
There shall be no order as to costs.
S.R. Appeal dismissed.

summary/full:
In exercise of their powers under sub section (3) of section 5 of the Punjab Municipal Act, 1911, the State Government by its Notification dated August 2, 1976 directed inclusion, in Sunam Municipality, of eight local areas including Moranwali Gram Panchayat, which challenged the validity of the said notification by a writ petition filed before the High Court and obtained stay of operation.
Under the Election Rules of 1952 and the Delimitation of Wards of Municipalities Rules, 1972, whenever there is a change in the limits of the municipality the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards.
However, since proviso to subsection 3 of section 13 of the Act, inserted by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the state Government to hold the election before June 30, 1979, along with those of the 42 other municipalities the election of the councillors of the Sunam Municipality was also held on June 10, 1979 on the basis of the old municipal limits, that is, from the existing 15 wards.
On June 23, 1979 the appellants who seek to represent about 1,000 voters from the local areas newly added to the municipal limits, filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared.
The High Court by its order dated July 10, 1979 declined to set aside the elections held, but directed that the local areas be given representation under sub section(5) 341 of section 5 of the Act.
Hence the appeal after obtaining special leave of the Court.
Dismissing the appeal, the Court ^ HELD: 1.
The State Government without reconstituting a municipality into new wards cannot proceed to hold an election of councillors, when there is an extension of the municipal limits.
[346 C] 2.
The whole purpose of delimitation of municipality into wards is to ensure that every citizen should get a fair representation in them municipalities.
When a municipality in reconstituted by the inclusion of any local area within the limits of a municipality under sub section (3) of section 5 or by the exclusion of any local area from the limits of a municipality under section 7, that is, when there is an alteration of the limits of the municipality, there must of necessity be a division of the reconstituted municipality into new wards without which the elections cannot be held.
There can be no disenfranchisement of part of the electorate of a municipality.
[345 C D] 3.
But, in the instant case, the said principle could not be applied due to the stay order passed by single Judge of the Punjab High Court which was in force from August 2, 1978 to October 23, 1978 and thereafter till April 1, 1980 consequent to the order of stay of dispossession by the Division Bench, dated December 19, 1978 in the Letters Patent Appeal preferred by the Gram Panchayat, Moranwali.
When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub section (3) of section 5 was kept out of such limits by reason of the stay order passed by the Division Bench there could, obviously, be no delimitation of the municipality into new wards.
[346 C, D; 347 B, A] 4.
To contend that with the dismissal of the writ petition on October 23, 1978, the impugned notification was brought into effect and therefore, the State Government could not proceed with election without delimitation of wards and preparation of fresh electoral rolls is incorrect.
It is equally incorrect to say that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1, 1980 the whole election would be invalidated.
The Election held on June 10, 1979 were valid and the councillors elected are entitled to run their full term of five years as provided in section 13.
The State Government acted with the best of intentions in deciding to hold the elections.
The State Government had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, that is, from the existing 15 wards due to the amendment of proviso to subsection (3) of section 13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the elections before June 30 1979.
[347 E,D] Bhaichandbhai Maganlal Shah vs The State of Gujarat and Ors., , approved. 6.
In view of the fact that a large number of inhabitants of the local areas brought within the municipal limits under sub section (3) of section 5 of the Act, 342 who were otherwise eligible to be enrolled as voters but for the stay by the High Court, have thereby been deprived not only of their valuable right to vote at the election but also the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice President, the Court directed; (1) that the local areas included in the municipality should be formed into a ward or wards and representation given to them under sub section (5) of section 5 of the Act; (ii) that the term of the councillors so elected from such local areas shall be co terminus with the term of the councillors already elected from the existing 15 wards and (iii) that this shall be a purely interim arrangement necessitated by the somewhat unfortunate stay order passed by the High Court and that obviously it cannot extend beyond the term of the present council.
[347 G, 348 B]


judgement:
N: Criminal Appeal No. 220 of 1974.
Appeal by Special Leave from the Judgment and Order dated 9th January, 1974 of the Allahabad High Court in Criminal Appeal No. 356/77 connected with Criminal Appeal No. 723 of 1970.
R. K. Garg, section section Bhatnagar, V. J. Francis and Sunil Kumar Jain for the Appellants.
R. K. Bhat for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave has been directed against the judgment and order passed by the Allahabad High Court dismissing two appeals filed by the appellants before it.
The appellants were convicted under Sections 302, 307 and 323 all read with Section 149 of the Penal Code.
They were sentenced to imprisonment for life, each, under Section 302/149, rigorous imprisonment for 7 years, each, under Section 307/149 and rigorous imprisonment for six months, each, under Section 323/149 of the Penal Code.
Appellants Harish Chandra and Nathu were further convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years, each.
The sentences were directed to run concurrently.
The facts material for the purpose of disposal of this appeal may be stated thus.
The prosecution alleges that there was 354 long standing enmity between the parties of the deceased and the appellants.
Some time prior to the incident a flour mill was installed and a house constructed by P.W. 1, Pahelwan, in his plot of land.
In front of the flour mill and the residence of Pahelwan there was some vacant land in his possession.
The appellants had started throwing rubbish on the land.
Pahelwan and his son, Ram Swarup (deceased) objected to this.
The appellants were annoyed at the objection of Pahelwan and his son Ram Swarup.
On 31st December, 1968 at about noon appellants Harish Chandra and Ram Sewak had some alteration with Pahelwan and Ram Swarup in connection with throwing of rubbish on the aforesaid land and as a consequence the relation between the parties worsened.
In the evening at about 8 O 'clock on the 1st of January, 1969, appellant, Ram Sewak, armed with a lathi went to the front of the flour mill of Pahelwan and started to hurl abuses on Pahelwan and his son Ram Swarup.
Appellant, Ram Sewak, challenged Pahelwan and his companions to see them that day.
At that time, it has been alleged, an electric light was burning in the front of the room of the flour mill as usual.
At the call of the appellant, Ram Sewak, the other appellants came variously armed with lathis and spears and started giving blows to Pahelwan and his son, Ram Swarup, both of whom, according to the prosecution, were unarmed.
Pahelwan, somehow, managed to snatch the spear from the hand of the appellant, Ishwari, and started giving blows to the assailants in order to defend himself.
At that time, it has been further stated, appellants Harish Chandra and Nathu fired their gun and pistol respectively.
As a result, Ram Swarup was hit and he fell down in front of the flour mill.
The shot of Nathu hit P.W. 1 Pahelwan, Lal Ram and Shri Kishan, all of whom received injuries.
Lekh Raj, P.W., then attacked the appellants with his lathi, as a result of which some injuries were caused to the appellants including Harish Chandra.
Thereafter the appellants escaped.
Ram Swarup succumbed to bullet injuries while he was being removed to the police station.
A first information report was lodged by P.W. 1, and eventually the appellants were committed to the court of Sessions that convicted and sentenced as stated above.
Their appeal was also dismissed by the High Court as earlier stated.
Learned counsel for the appellants submitted that large number of injuries had also been received by the appellants and that there was no finding by the courts below as to how the assault 355 initially started and which party was the aggressor, prosecution has not explained as to how the appellants received the injuries.
As such, he submitted, the conviction for the offences with the aid of Section 149, Penal Code, was bad in law.
In support of his contention he relied on a decision of this Court reported in AIR 1976 section C. 2263.
This Court in A.I.R. 1976 S.C. 2263 has held: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
" The submission of the learned counsel is that the injuries found in the persons of the appellants have not been explained by the prosecution.
The injuries are serious.
The appellants had the right of private defence, and therefore, they have committed no offence.
The submission of the learned counsel is not warranted by the findings of the High Court.
The High Court agreeing with the trial Court has found that the prosecution case as alleged has been established by the evidence of the prosecution witnesses.
The High Court as well as the trial Court has rejected the defence version of the case, in view of their inconsistent pleas before the Committing Court and the trial Court.
Before the Committing Magistrate pleas of appellants, Harish Chandra and Soney Lal, were alibi.
The defence of appellants, Ram Sewak and Nathu, was that the occurr 356 ence had not taken place on the land of P.W. 1, Pahelwan, as alleged by the prosecution, but it had taken place at a different place.
According to them there was a quarrel in respect of some property between Ram Swarup, (deceased) and Zorawar, brother in law of Ram Swarup, in which appellant Nathu intervened whereupon Pahelwan (P.W. 1), Lala Ram, Shri Kishan, Triloki, Ram Swarup Prasad, Munna Jamadar, Lekthraj and others attacked the appellants and in that incident injuries were received by P.W. 1 and the deceased.
The defence of appellant, Ishwari, before the Committing Magistrate was that Pahelwan (P.W.1), Lekh Raj and others attacked him, as a result of which he became unconscious.
The defence of the appellants before the Sessions Judge was one of the right of private defence.
The defence of appellant Harish Chander before the Sessions Judge was an alibi.
The defence of the other appellants was that Ishwari had been returning from Ghurwal Chak.
At that time he was attacked by the prosecution witnesses and the deceased.
The incident took place on a land between residence and flour mill of P.W.1 and in that assault the appellants had to defend themselves.
On a consideration of the evidence on record the learned High Court agreeing with the Sessions Judge has accepted the version of the prosecution and rejected that of the defence.
In coming to that conclusion the High Court has also taken notice of the fact that P.W.1.
had a licensed gun.
Had he and Ram Swarup and other P.W 's been the aggressors, he (P.W.1) would not have come without the gun.
In view of the "inconsistent pleas" and "in view of the fact that no infirmity worth the name has been shown in the statement of eye witnesses of the occurrence", the High Court accepted the prosecution case as true and held "that the defence case is false".
The High Court has also held that "appellants were the aggressors".
It is therefore, not correct to suggest as contended by the learned counsel for the appellants that there were no findings on record to show as to how the quarrel started and that the appellants were the aggressors.
From the findings of learned courts below the facts that emerge are (1) that it was the appellants who were the aggressors; (2) that the occurrence took place on the land in front of the house of P.W. 1, Pahelwan, who was in possession thereof; (3) that P.W.1 and the deceased had the right of the private defence of property and person and they did exercise that right.
Aggres 357 sors, even if they receive injuries from the victims of their aggression cannot have the right of private defence.
The findings are that P.W.1 and the deceased were unarmed.
P.W.1 snatched a weapon from one of the assailants and caused injuries on them.
On the top of it two of the appellants brought fire arms and fired at the deceased and the P. W. 1, as a result of which the deceased expired.
The submissions of learned counsel for the appellants do not stand scrutiny.
This appeal has no merit and is dismissed.

summary/full:
The prosecution alleged that there was a long standing enmity between the parties of the deceased and the appellants.
There was a vacant plot of land in front of the flour mill and residence of PW. 1.
The appellants started throwing rubbish on this piece of land.
PW.1 and his son, the deceased, objected to this.
On the fateful day at about noon there was an altercation in connection with the throwing of rubbish, and at about 8 p.m. one of the appellants armed with a lathi went to the flour mill and challenged PW. 1 and his companions.
At the call of this appellant, the other appellants who were armed with gun, pistol, lathi and spear arrived at the spot.
PW. 1 managed to snatch the spear from the hands of one of the appellants and started giving blows to the assailants in order to defend himself.
At that time two of the appellants fired their gun and pistol as a result of which the son of PW. 1 received injuries, to which he succumbed while being removed to the Police Station.
The defence of the appellants was one of alibi and that the offence had not taken place on the land of PW. 1.
The appellants were tried before the Sessions Judge who convicted and sentenced them under Sections 302 307 and 323 read with Section 149 of the Penal Code.
The High Court dismissed the appeal.
It agreed with the trial Court and found that the prosecution case was established by the evidence of the prosecution witnesses and that the defence version of the case had to be rejected on account of the inconsistent pleas made by the appellants before the committing court and the Sessions Court.
In the appeal in this Court, it was contended that there was no finding by the trial and appellate courts as to how the assault initially started and which party was the aggressor, that the prosecution had not explained as to how the 353 appellants received the injuries, and that the appellants had the right of private defence and, therefore, they had committed no offence.
Dismissing the appeal, ^ HELD: 1.
The High Court rightly accepted the prosecution case as true and held that the defence case was false.
[356 F] 2.
The findings of the two courts below indicate that it was the appellants who were the aggressors and that the occurrence took place on the land lying in front of the house of PW. 1 who was in possession thereof and that the deceased and PW. 1 had the right of private defence of property and person and that they exercised that right.
The appellants who were the aggressors, even if they received injuries from the victims of their aggression, cannot have any right of private defence.
The findings are that the deceased and PW. 1 were unarmed and that P.W. 1 snatched the weapon from one of the assailants and caused injuries to them.
If the deceased and the other prosecution witnesses had been the aggressors, PW. 1 would not have come without his licensed gun.
[356 H 357A, 356E]


judgement:
100 and 101 of 1956.
Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus.
N. C. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma, for the petitioners.
C. K. Daphtary, Solicitor General for India, Porus A. Mehta and R. H. Dhebar, for the respondents.
September 17.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are petitions under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus.
On 26th January 1956 the District Magistrate, Than;, passed orders under section 3(2) of the IV of 1950 (hereinafter referred to as the Act) for the detention of the petitioners, and in execution of the orders, they were arrested on 27th January 1956.
The next day, the District Magistrate sent his report to the State Government which on 3rd February 1956 approved of the same.
Meantime, on 30th January 1956 the District Magistrate formulated the grounds on which the orders of detention were made, and the same were communicated to the petitioners on 31st January 1956.
A copy of these grounds was sent to the State Government on 6th February 1956.
The petitioners challenge the validity of the detention on two grounds.
They contend firstly that the grounds for the order of detention which were furnished to them under section 7 of the Act are vague, 646 and secondly that the requirements of section 3 (3) of the Act had not been complied with, in that those grounds had been sent to the State Government by the District Magistrate, not along with, his report on 28th January 1956, but on 6th February 1956, after the State Government had approved of the order.
There is no substance whatsoever in the first contention.
The communication sent to the petitioners runs as follows: "During the monsoon season in the year 1955, you held secret meeting of Adivasis in Umbergaon, Dhanu, Palghar and Jawhar Talukas of Thana Distric 't at which you incited and instigated them to have recourse to intimidation, violence and arson in order to prevent the labourers from outside villages hired by landlords from working for landlords.
As a direct result of your incitement and instigation, there were several cases of intimidation, violence and arson in which the Adivasis from these Talukas indulged.
Some of these cases are described below. . " Then follows a detailed statement of the cases.
It is argued for the petitioners that no particulars were given as to when and where the secret meetings were held in which they are alleged to have participated, and that the bald statement that they took place during the monsoon season was too wide and vague to be capable of being refuted.
But then, the particulars Which follow give the dates on which the several incidents took place, and it is obvious that the meetings must have been held near about those dates.
The communication further states that it is not in the public interests to disclose further facts.
Reading the communication as a whole, we are of opinion that it is sufficiently definite to apprise the petitioners of what they were charged with and to enable them to give their explanation therefor.
That was the view taken by Chagla, C. J. in the applications for habeas corpus, which the petitioners moved in the High Court of Bombay under article 226 of the Constitution, and we are in agreement with it.
The complaint that the grounds are vague must therefore fail.
As regards the second contention, it will be usefu 647 to set out the relevant sections of the Act bearing on the question: Section 3(1) "The Central Government or the State Government may (a)if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i)the defence of India, the relations of India with foreign powers, or the security of India, or (ii)the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential to the community; or (b)if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) Any of the following officers, namely, (a) District Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collector in the State of Hyderabad may if satisfied as provided in sub clauses (ii) and (iii) of clause (a) of sub section (1) exercise powers conferred by the said sub section.
(3) When any order is made under this section by an officer mentioned in sub section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.
648 (4) Where any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have bearing on the necessity for the order".
Section 7 (1) "Where a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose".
On these sections, the argument of Mr. Chatterjee for the petitioners is that section 3 (3) requires that when an order of detention is made by one of the authorities mentioned in section 3(2) in this case it was so made that authority should forthwith report the fact to the State Government together with the grounds on which the order was made; that this provision is clearly intended to safeguard the rights of the detenu, as it is on a consideration of these grounds that the Government has to decide whether it will approve of the order or not;, that when therefore the grounds had not been made available to the State Government before they had approved of the order, as happened in the present case, there was a clear violation of the procedure prescribed by the statute, and that the detention became illegal.
Now, it is clear from the affidavit filed on behalf of the respondent that when the District Magistrate sent a report under section 3(3) on 28th January 1956, he did send a report not merely of the fact of the making of the order of detention, but also of the materials on which he had made the order.
The contention of the petitioner is that the grounds which 649 were formulated on 30th January 1956 and communicated to them on 31st January 1956 should also have been sent along with the report.
The question is whether what the District Magistrate did was sufficient compliance with the requirements of section 3 (3), and that will depend upon the interpretation to be put upon the words "grounds on which the order has been made" occurring in that section.
Construing these words in their natural and ordinary sense they would include any information or material on which the order was based.
The Oxford Concise Dictionary gives the following meanings to the word "ground": 'Base, foundation, motive, valid reason '.
On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefor.
But it is contended by Mr. Chatterjee that the expression "grounds on which the order has been made" occurring in section 3(3) is, word for word, the same as in section 7, that the same expression occurring in the same statute must receive the same construction, that what section 3 requires is that on the making of an order for detention, the authority is to formulate the grounds for that order, and send the same to the State Government under section 3(3) and to the detenu under section 7, and that therefore it was not sufficient merely to send to the State Government a report of the materials on which the order was made.
Reliance was placed on the following passage in Maxwell 's Inter predation of Statutes, 10th Edition, page 522: "it is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act".
The rule of construction contended for by the petitioners is well settled, but that is only one element in deciding what the true import of the enactment.
is) to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute.
"The presumption", says Craies, "that the same words are used in the same meaning is however very slight, and 650 it is proper 'if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act" '.
(Statute Law, 5th Edition, page 159).
And Maxwell, on whose statement of the law the petitioners rely, observes further on: "But the presumption is not of much weight.
The same word.
may be used in different senses in the same statute, and even in the same section".
(Interpretation of Statutes, page 322).
Examining the two provisions in their context, it will be seen that section 3(1) confers on the Central Government and the State Government the power to pass an order of detention, when the grounds mentioned in that sub clause exist.
When an order is made under this provision, the right of the detenu under section 7 is to be informed of the grounds of detention, as soon as may be, and that is to enable him to make a representation against that order, which is a fundamental right guaranteed under article 22(5).
Coming next to section 3(2), it provides for the power which is conferred on the State Government under section 3(1) being exercised by certain authorities with reference to the matters specified therein.
This being a delegation of the power conferred on the State Government under section 3(1), with a view to ensure that the delegate acts within his authority and fairly and properly and that the State exercises due and effective control and supervision over him, section 3(3) enacts a special procedure to be observed when action is taken under section 3(2).
The authority making the order under section 3(2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse.
These provisions are intended to regulate the course of business between the State Government and, the authorities subordinate to it exercising its power under statutory delegation and their scope is altogether different from that of section 7 which deals with the right of the detenue as against the State 651 Government and ' its subordinate authorities.
Section 3(3) requires the authority to communicate the, grounds of its order to the State Government, so that the latter might satisfy itself whether detention should be approved.
Section 7 requires the statement of grounds to be sent to the detenu, so that he might, make a representation against the order.
The purpose of 'the two sections is so different that it cannot, be presumed that the expression "the grounds on which the order has been made" is used in section ' 3(3) in the same sense 'Which it bears in section 7.
That the legislature could not have contemplated that the grounds mentioned in section 3(3) should be, identical with those referred to in section 7 could also be seen from the fact that whereas under section 7(2) it is open to the authority not to disclose to the detenu facts if it considers that it would be against public interests so to do, it is these facts that will figure prominently in a report by the subordinate authority to the State Government under section 3(3),and form the basis for approval.
If the grounds which are furnished under section 3(3) could contain matters which need not be communicated to the detenu under section 7, the expression "grounds on which the order has been made" cannot bear the same meaning in both the sections.
There is also another reason in support of this conclusion.
When the authority mentioned in section 3(2) decides, on a consideration of the materials placed before it, to act under that section and orders detention, it is required by section 3(3) to, report that fact with the grounds therefore to the State Government forthwith.
But under section 7, the duty of the authority is to communicate the grounds to the detenu, as soon as may be.
Now, it has been held that as the object of this provision is to give the detenu an opportunity to make a representation against the order, the grounds must be sufficiently definite and detailed to enable him to do so.
It is obvious that the communication that has to be served on the detenu under section 7 of the Act is a formal document setting out the grounds for the order and the 652 Particulars in support thereof, subject, of course, to section 7(2); whereas the report to the State under section 3(3) is a less formal document in the nature of a confidential inter departmental communication, which is to contain the particulars on which the order was made.
It could not have been intended that the contents of the two communications which are so Dissimilar in their scope and intendment should be identical.
Mr. N. C. Chatterjee also cited certain observations of Kania C.J. in State of Bombay vs Atma Ram Sridhar Vaidya(1) as supporting his contention that the grounds which are furnished to the detenu must have been before the State Government before it approves of the order.
Said the learned Chief Justice: "It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order.
These grounds therefore must be in existence when the order is made".
But the grounds referred to in the above passages are the reasons for making the order, not the formal expressions in which they are.
embodied, and that will be clear from the following observation further on: "By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts".
Our conclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under section 3(3), the very grounds which he subsequently communicated to the detenu under section 7 is not a breach of the requirements of that sub section, and that it was sufficiently complied with when he reported the materials on which he made the order.
The second contention of the petitioners also fails, and these applications must therefore be dismissed.
(1) ; , 178.

summary/full:
Sub section (3) of section 3 of the , provides that when an order of detention is made under subsection (2) by an officer mentioned therein, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made . and no such order. shall remain in force for more then twelve days after the making thereof unless in the meantime it has been approved by the State Government.
Under section 7(1) "when a person is detained in pursuance of a detention order, the authority making the order shall . communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government".
The petitioners were arrested on 27th January 1956 in pursu anoe of the orders of detention passed under section 3(2) of the , by the District Magistrate who sent his report the next day to the State Government which approved of the same on 3rd February 1956.
Meantime, the grounds on which the orders of detention were made were formulated by the District Magistrate who furnished the same to the petitioners on 31st January 1966 under section 7 of the Act.
A copy of these grounds was sent to the State Government on 6th February 1956.
The petitioners challenged the validity of the detention and contended, inter alia, that as the expression "grounds on which the order has been made" occurring in section 3(3) is word for word, the same as in section 7 of the Act, it must have the same meaning and as the copy of the grounds referred to in section 7 had not been sent along with the report under section 3(3) to the State Government before it had approved of the orders of detention there was a violation of the procedure prescribed by the statute and consequently the detention became illegal.
It was found that the report sent by the District Magistrate set out not merely the fact of the making of the order of detention but also the materials on which he had made the order.
Held, that the failure on the part of the District Magistrate to 645 send along with his report under section 3(3) the very grounds which he subsequently furnished the detenu under section 7, is not a breach of the requirements of that sub section and that it was sufficiently complied with when he reported the materials on which he made the order.
The scope and intendment of the expression " the grounds on which the order has been made" in sections 3(3) and 7 of the Act are quite different and it is not essential that the grounds which are furnished to the detenu must have been before the State Government before it approves of the order.