judgement:
Civil Appeal No. 1224 of 1977.
Appeal by special leave from the judgment and order dated the 3rd September, 1976 of the Gujarat High Court in Special Civil Appln.
No. 1501 of 1974 84 F.S. Nariman, Dr. Y.S. Chitale, K.S. Nanavati, C.R. Gandhi, P.H. Parekh and Miss Vineeta Caprihan for the Appellant.
Soli J. Sorabjee, G.N. Desai and M.N. Shroff for Respondent No. 1 G.N. Desai, Prashant G. Desai and S.C. Patel for Respondent No. 2 S.K. Dholakia and R.C. Bhatia for Intervener Surat Municipality.
The Judgment of the Court was delivered by GUPTA J.
On June 26, 1965 the Surat Municipal Corporation, then called Surat Borough Municipality, declared its intention to make a town planning scheme under section 22 of the Bombay Town Planning Act, 1954 (hereinafter referred as the Act).
This was Town Planning Scheme Surat No. 8 (Umarwada).
On July 4, 1967 a draft scheme was published which included among other lands an area admeasuring 1,37,961 sq.
meters of which appellant as Karta of a Hindu undivided family was the lessee.
On May 10, 1968 Government of Gujarat granted sanction to the draft scheme.
Before the Town Planning Officer the appellant claimed compensation for deprivation of his right in the land at Rs. 50 per sq.
By his order made on November 4, 1971 the Town Planning Officer awarded compensation to the appellant at the rate of Rs. 2.40 p. per sq.
; the total compensation awarded was Rs. 3,31,455.
Not satisfied with the decision of the Town Planning Officer the appellant preferred an appeal.
Section 34 read with section 32(1) of the Act provides an appeal from the decision of the Town Planning Officer on certain specified matters to a Board of Appeal.
Before the Board of Appeal the appellant reduced his claim to Rs. 9.50 p. per sq.
The appellant 's grievance was that the compensation awarded was inadequate and further that the apportionment of compensation between the lessor and the lessee was not proper.
He also questioned the propriety of reserving such a large area of land for the scheme.
The Board of Appeal held that the appeal was not maintainable as the Act did not provide an appeal from a decision of the Town Planning Officer on matters dealt with by him in his order dated November 4, 1971.
The appellant then challenged the order of the Board of Appeal before the Gujarat High Court by filing a writ petition in which certain provisions of the Act were also challenged as unconstitutional and it was claimed 85 that the town planning scheme was consequently invalid.
The Gujarat High Court dismissed the writ petition agreeing with the Board of Appeal that the appeal was incompetent.
The constitutional questions raised in the writ petition could not be decided as Emergency was then in force in the country and rights conferred by Articles 14,19 and 31 of the Constitution on which the appellant 's contentions were based remained suspended at the time.
The High Court also relied on the decision of this Court in State of Gujarat vs Shri Shantilal Mangaldas which had upheld the validity of the Act.
The appeal before us is by special leave.
Mr. Nariman for the appellant submitted that in case we held that the appeal preferred by his client before the Board of Appeal was maintainable he would not press the grounds questioning the constitutional validity of the Act at this stage and the matter should then go back to the Board of Appeal for a decision on the adequacy of the Compensation; if however we found that the Board of Appeal was right in holding that the appeal was not maintainable, he would then urge the grounds challenging the validity of the Act.
The question is whether the order of the Town Planning Officer determining the amount of compensation payable to the appellant falls within any of the appealable clauses of section 32(1).
To be able to answer the question it will be necessary to examine the various clauses of section 32(1) and also certain other provisions of the Act.
The scheme of the Act has been analysed by this Court in State of Gujarat vs Shantilal Mangaldas (supra) and earlier in Maneklal Chhottalal and others vs M.G. Makwana and others; we will not attempt another comprehensive survey of all the provisions of the Act but refer to those of them which have some bearing on the question that falls to be decided.
Mr. Nariman drew our notice to the decision of this Court in State of Karnataka vs Shri Ranganatha Reddy where Untwalia, J, speaking for the court said at page 652 of the report that in Rustom Cavasjee Cooper vs Union of India, this Court apparently seeking to explain Shantilal 's case had "in substance" overruled the decision.
Even if Shantilal 's case was 86 overruled, that was on another point and the analysis of the scheme of the Act made in Shantilal cannot be questioned.
The long title of the Act states that it is an "Act to consolidate and amend the law for the making and execution of town planning schemes".
The Act has been made applicable to the State of Gujarat.
It is an Act providing for compulsory acquisition of land and payment of compensation for the land taken.
Some of the terms and expressions defined in section 2 of the Act are relevant.
Section 2 (2) defines "development Plan" as meaning a plan for the development or redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3.
Section 3 requires every local authority to carry out a survey of the area within its jurisdiction and prepare and publish a development plan and submit it to the State Government for sanction.
Sub section (4) of section 2 defines local authority as a municipal corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949 or a municipality constituted or deemed to be constituted under the Gujarat Municipalities Act, 1973.
Section 2 (9) defines "reconstituted plot" as a plot which is in any way altered by the making of a town planning scheme.
Chapter III of the Act provides for the making of town planning schemes.
Sub section (2) of section 18 which occurs in this chapter states that a town planning scheme may make provisions for any of the matters specified in clauses (a) to (k) of the sub section.
These matters include laying out of land, reclamation of unhealthy areas, laying out new streets of roads, construction and removal of buildings, bridges and other structures, providing for drainage, lighting and water supply, allotment or reservation of land for roads, open spaces, schools, markets and public purposes of all kinds.
Clause (1) says that apart from the matters specified, the town planning scheme may provide for "such other matter not inconsistent with the objects of this Act as may be prescribed".
Chapter IV which contains section 21 to section 30 bears the heading "Declaration of Intention to Make a Scheme and Making of a Draft Scheme".
Under section 22 a local authority may by resolution declare its intention to make a town planning scheme and is required to publish the scheme in the prescribed manner and despatch a copy thereof to the State Government.
Section 23 (1) provides that following the declaration of intention to make a scheme, the local authority shall make a draft scheme for the area 87 in respect of which the declaration has been made and publish it in the prescribed manner.
Section 25 mentions the particulars that a draft scheme shall contain; they include among other things, the area, ownership and tenure of each original plot; the extent to which it is proposed to alter the boundaries of original plots; and an estimate of the nett cost of the scheme to be borne by the local authority.
Sub section (1) of section 26 says that in the draft scheme the size and shape of every reconstituted plot shall be determined; as far as possible, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building complies with the provisions of the scheme as regards open spaces.
For the purpose of sub section (1) the draft scheme may contain proposals which are enumerated in clauses (a) to (e) of sub section (2) of the section.
We may here refer to clauses (a), (b) and (d): "(a) to form a reconstituted plot by the alteration of the boundaries of an original plot; (b) to form a reconstituted plot by the transfer wholly or partly of the adjoining lands; (c) . . (d) to allot a plot to any owner dispossessed of land in furtherance of the scheme.
(e) . .
Under section 27, within one month from the date of publication of the draft scheme, any person affected by such scheme may communicate in writing to the local authority any objection relating to such scheme which the local authority has to consider.
Section 28 (1) requires the local authority to submit the draft scheme together with the objections to the State Government and at the same time apply for its sanction.
Under sub section (2) the State Government may within six months from the date of the submission of the draft scheme either sanction such scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction.
Chapter V which includes section 31 to section 43 provides for the appointment of the Town Planning Officer and constitution of the Board of Appeal.
Within one month from the date on which the sanction of the State Government to the draft scheme is 88 published, the State Government is required under section 31 (1) to appoint a Town Planning Officer.
The duties of the Town Planning Officer are enumerated in section 32 (1).
The provisions of sections 32, 33 and 34 have a direct bearing on the question of appealability of the Town Planning Officer 's decision, but we think it would be more helpful for appreciating the contentions raised on behalf of the appellant if we referred to certain other provisions of the Act before turning to the aforesaid section in Chapter V.
We need only mention here that drawing up the final scheme in accordance with the draft scheme is one of the duties of the Town Planning Officer who is required to forward the final scheme to the State Government for sanction.
In Chapter VI section 53 is the only relevant provision.
Section 53 lays down: "On the day on which the final scheme comes into force: (a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer".
Chapter VIII deals with "Finance".
It contains, inter alia, provisions specifying the principles on which compensation for the land taken is to be determined.
This chapter includes section 64 to section 78.
Section 64 (1) enumerates in clauses (a) to (f) the sums payable or spent and the expenses incurred by the local authority which are to be included in the costs of a town planning scheme.
Clause (d) mentions the sums payable as compensation for land reserved or designated for any public purpose or purposes of the local authority.
Clause (f) of section 64 (1) reads as follows: "any amount by which the total of the values of the original plots exceeds the total of the values of the plots included in the final scheme, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme with all the buildings and works thereon at that date and without references to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries.
" 89 Sub section (2) of section 64 provides: "if in any case the total of the values of the plots included in the final scheme exceeds the total of the values of the original plots, each of such plots being estimated in the manner provided in clause (f) of sub section (1), then the amount of such excess shall be deducted in arriving at the costs of the scheme as defined in sub section (1).
" Section 65 explains the meaning of increment for the purposes of the Act as follows: "For the purposes of this Act the increments shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme the market value of a plot included in the final scheme estimated on the assumption that the scheme has been completed would exceed at the same date the market value of the same plot estimated without reference to improvements contemplated in the scheme: Provided that in estimating such values the value of buildings or other works erected or in the course of erection on such plot shall not be taken into consideration.
" Section 66 (1) states that the costs of the scheme shall be met wholly or in part by a contribution to be levied by the local authority on each plot in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer.
Under sub section (2) of section 66 the "owner of each plot included in the final scheme shall be primarily liable for the payment of the contribution leviable in respect of such plot".
Under section 67 the amount by which the total value of the plots in the final scheme with all the buildings and works thereon allotted to a person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, the contributions leviable from such person, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme without reference to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries.
As Shah J., speaking for the Court in State of Gujarat vs Shantilal Mangaldas and others observed: "(Section 67) is intended to make adjustments between the right to compensation for loss of 90 land suffered by the owner, and the liability to make contribution to the finances of the scheme".
Section 69 deals with the compensation payable in respect of any property or right which is injuriously affected by the making of a town planning scheme.
The section says: "The owner of any property or right which is injuriously affected by the making of a town planning scheme shall, if he makes a claim before the Town Planning Officer within the prescribed time, be entitled to obtain compensation in respect thereof from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine.
Provided that the value of such property or right shall be held to be its market value at the date of the declaration of intention to make a scheme or the date of a notification under sub section (1) of section 24 without reference to improvements contemplated in the scheme".
Section 71 deals with the case of an owner of land who is not given a plot in the final scheme and also provides for a case where the amount payable to an owner exceeds the amount due from him.
Section 71 is as follows: "If the owner of an original plot is not provided with a plot in the final scheme or if the contribution to be levied from him under section 66 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the local authority in cash or in such other way as may be agreed upon by the parties".
The appellant in the present case was not provided with a plot in the final scheme.
Section 87 in Chapter IX empowers the State Government to make rules consistent with the provisions of the Act to provide for all matters not specifically indicated therein.
The effect of the final scheme coming into force has been summarized by Shah J., in Shantilal 's case; we may quote here the following extract from page 349 of the report: "On the coming into force of the scheme all lands which are required by the local authority, unless otherwise 91 determined in the scheme, by the operation of section 53 (a) vest absolutely therein free from all encumbrances.
The result is that there is a complete shuffling up of plots of land, roads, means of communication, and rearrangement thereof.
The original plots are re constituted, their shapes are altered, portions out of plots are separated, lands belonging to two or more owners are combined into a single plot, new roads are laid out, old roads are diverted or closed up, and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts dairies etc.
In this process the whole or parts of a land of one person, may go to make a reconstituted plot, and the plot so reconstructed may be allotted to another person and the lands needed for public purposes may be earmarked for those purposes.
The re arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made.
The owner who is deprived of his land has to be compensated, and the owner who obtains a re constituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme.
This is because on the making of a town planning scheme the value of the plot rises and a part of the benefit which arises out of the unearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions".
Under the Act the compensation payable to an owner for loss of land has to be determined on the basis of the market value of the land at the date on which the declaration of intention to make a scheme was made.
On the question whether the Act specifies a principle of compensation, it is observed in Shantilal 's case at page 357 of the report: "It is true that under the Act the market value of the land at the date of declaration of intention to make a scheme determines the amount to be adjusted, and that is the guiding rule in respect of all lands covered by the scheme.
The High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of land of which the owner was deprived by the 92 scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of compensation within the meaning of Art, 31 (2).
Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby.
Under the Land Acquisition Act compensation is determined on the basis of "market value" of the land on the date of the notification under s.4 (1) of that Act.
That is a specification of principle.
Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified.
Whether an owner of land is given a reconstituted plot or not, the rule for determining what is to be given as recompense remains the same.
It is a principle applicable to all cases in which by virtue of the operation of the Town Planning Act a person is deprived of his land whether in whole or in part".
We may now turn to sections 32, 33 and 34 occurring in chapter V.
It may be recalled that the appellant 's land was taken for purposes of the scheme but he was not given a reconstituted plot.
Section 32 (1) which enumerates the duties of the Town Planning Officer is set out below: "32 (1) In accordance with the prescribed procedure the Town Planning Officer shall (i) after notice given by him in the prescribed manner, define and demarcate the areas allotted to, or reserved, for a public purpose or purpose of the local authority and the reconstituted plots; (ii) after notice given by him in the prescribed manner, determine, in the case in which a reconstituted plot is to be allotted to persons in ownership in common, the shares of such persons; (iii)fix the difference between the total of values of the original plots and the total of the values of the plots included in the final scheme, in accordance with the provisions contained in clause (f) of sub section (1) of section 64; 93 (iv) determine whether the areas used, allotted or reserved for a public purpose of the local authority are beneficial wholly or partly to the owners or residents within the area of the scheme; (v) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme; (vi) calculate the contribution to be levied on each plot used, allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public; (vii)determine the amount of exemption, if any, from the payment of the contribution that may be granted in respect of plots exclusively occupied for the religious or charitable purposes; (viii)estimate the increment to accrue in respect of each plot included in the final scheme in accordance with the provisions contained in section 65; (ix) calculate the proportion in which the increment of the plots included in the final scheme shall be liable to contribution to the costs of the scheme in accordance with the provisions contained in section 66; (x) calculate the contribution to be levied on each plot included in the final scheme; (xi) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions contained in section 67; (xii)provide for the total or partial transfer of any right in an original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 68; 94 (xiii)estimate in reference to claims made before him, after the notice given by him in the prescribed manner, the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions contained in section 69; (xiv)draw in the prescribed form the final scheme in accordance with the draft scheme:" There is a proviso to section 32 (1) which is not relevant for the purpose of this appeal.
Section 33 says: "Except in matters arising out of clauses (v), (vi), (vii), (ix), (x) and (xiii) of sub section (1) of section 32, every decision of the Town Planning Officer shall be final and conclusive and binding on all persons." Section 34 provides an appeal to a Board of Appeal from any decision of the Town Planning Officer under clauses (v), (vi) (viii), (ix), (x) and (xiii).
Thus the decision of the Town Planning Officer is final and conclusive in all matters referred to in the various clauses of section 32 (1) except those mentioned in (v), (vi), (viii), (ix), (x) and (xiii).
It was claimed on behalf of the appellant that the Town Planning Officer 's decision in the appellant 's case was appealable either under clause (viii) or clause (xiii) of section 32 (1).
The Town Planning Officer has a duty under clause (viii) to calculate the increment to accrue in respect of each plot included in the final scheme (which we will refer to hereinafter as the final plot for brevity 's sake) in accordance with the provisions of section 65.
Under section 65 increment means the amount by which at the date of the declaration of the intention to make a scheme, the market value of a final plot calculated on the basis as if the improvements contemplated in the scheme had stood completed on that date exceeds the market value of the same plot when taken into account without the improvements.
The increment is thus the difference in the market value of the same final plot with the improvements and without the improvements on the aforesaid date.
The value of the original plot does not arise for consideration under clause (viii).
Rule 17 of the Bombay Town Planning Rules, 1955 sets out the particulars that a draft scheme shall contain in addition to the particulars specified in 95 section 25 of the Act.
Clause (v) of rule 17 mentions a "redistribution and valuation statement in Form 'B ' showing the estimated amounts to be paid to, or by, each of the owners included in the scheme".
Form B makes it clear that the increment is the difference in value of the same final plot in its developed and undeveloped conditions; Form B keeps the valuation of the original plot distinct from that of the final plot.
The appellant 's case therefore cannot fall under clause (viii).
Does the case fall under clause (xiii)? Under clause (xiii) the Town Planning Officer is required to estimate the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions of section 69.
Section 69 states that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine.
It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired for the purposes of the scheme.
The property or right affected remains with the owner who is entitled to compensation for such injurious affection.
When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act.
On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated.
That we are afraid is not possible.
We find no compelling reason for restructuring that clause, and taking acquisition of land to mean 'injurious affection ' of the land acquired would be inconsistent with the entire scheme of the Act.
We may refer to clause 'fourthly ' of section 23 (1) of the land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property".
The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act.
It is made clear in clause 96 'fourthly ' that the damage is for injurious affection of some property other than the land acquired.
The sense in which the expression 'injurious affection ' is used in section 23 (1) of the Land Acquisition Act is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construed differently.
It was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellant 's case.
The contention is not correct.
The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 of the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties".
The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme.
In the appellant 's case it would be the value of the original plot and not the final plot.
In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f).
Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot.
We therefore hold that the High Court was right in finding that the decision of the Town Planning Officer determining the amount of compensation in the appellant 's case was not appealable.
In the view we take, Mr. Nariman should be allowed to urge the grounds concerning the constitutional validity of the Act.
This case may now be placed before a Constitution Bench for hearing.
An application has been filed on behalf of the appellant for leave to urge additional grounds; this application may also be considered by the Constitution Bench that will hear this appeal.
P.B.R. Appeal dismissed.

summary/full:
The Bombay Town Planning Act, 1954 (which was made applicable to the State of Gujarat) provides for the compulsory acquisition of land and payment of compensation for the land so acquired for the development or re development or improvement of the entire area within the jurisdiction of a local authority such as a municipal corporation or a municipality.
The Town Planning Scheme prepared under the Act may make provision for laying out new streets or roads, allotment or reservation of land for roads, open spaces and such other matters not inconsistent with the objects of the Act.
Before proceeding to acquire any land for town planning purposes, a local authority, by resolution, must declare its intention to make a town planning scheme and publish it in the manner prescribed.
The draft scheme may contain proposals such as to form a re constituted plot by the alteration of the boundaries of an original plot, to form a reconstituted plot by the transfer, wholly or partly, of the adjoining land, to allot a plot to any owner dispossessed of a land in furtherance of the scheme.
Any person affected by the scheme may communicate to the local authority concerned any objection relating to such scheme.
The scheme is then forwarded to the State Government for the requisite sanction.
The scheme of the Act envisages the appointment of a Town Planning Officer and constitution of a Board of Appeal.
It is the duty of the Town Planning Officer to draw up a final scheme in accordance with the draft scheme.
When the final scheme comes into force all lands required by the local authority shall vest absolutely in that authority free from all encumbrances and all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer.
Section 64 (1) enumerates the sums payable or spent and the expenses incurred by the local authority which are to be included in the costs of a town planning scheme.
Under section 65 increment means the amount by which at the date of the declaration of intention to make a scheme the market value of a final plot calculated on the basis as if the improvement contemplated in the scheme had stood completed on that date.
Provision is made in section 67 to make adjust 82 ment between the rights to compensation for loss of land suffered by the owner and the liability to make contribution to the finance of the scheme.
Compensation payable to any owner for loss of lands has to be determined on the basis of the market value of the land at the date on which the declaration of intention to make a scheme was made.
Section 69 contemplates that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person bona fide or partly from such person as the Town Planning Officer may in each case determine.
Section 32 enumerates duties of the Town Planning Officer and section 33 provides that except in matters arising out of clauses (v), (vi), (vii), (ix), (x) and (xiii) of section 32 (1) every decision of the Town Planning Officer shall be final and conclusive and binding on all persons.
An appeal from the decision of the Town Planning Officer under the six clauses mentioned in section 33 lies to the Board of Appeal.
The Surat Municipal Corporation declared its intention to make a town planning scheme under section 22 of the Bombay Town Planning Act, 1954.
The draft scheme published included an area of 1.37 lac square meters of which the appellant was the lessee.
Dissatisfied with the compensation awarded to him by the Town Planning Officer the apportionment of the compensation between the lessor and lessee and the propriety of reserving such a large area of land for the scheme the appellant preferred an appeal under section 34 read with section 32 (1) of the Act to the Board of Appeal.
The Board rejected the appeal as being not maintainable on the ground that the Act did not provide an appeal from a decision of the Town Planning Officer on matters dealt with by him in the impugned order.
Agreeing with the Board of Appeal the High Court dismissed the appellant 's writ petition.
In the appeal to this court it was contended on behalf of the appellant that the Town Planning Officer 's decision was appealable under clause (viii) or clause (xiii) of section 32(1) because he has a duty to calculate the increment to accrue in respect of each plot included in the final scheme in accordance with the provision of section 65.
Dismissing the appeal, ^ HELD: The High Court was right in holding that the decision of the Town Planning Officer determining the amount of compensation in the appellant 's case was not appealable.
[96 F] The decision of the Town Planning Officer is final and conclusive in all matters referred to in the various clauses of section 32 (1) except those mentioned in clauses (v), (vii), (viii), (ix), (x) and (xiii).
[94 E] The increment referred to in section 65 is the difference in the market value of the same final plot with the improvements and without the improvements on 83 the date of the declaration of intention to make a scheme.
The value of the original plot does not arise for consideration under clause (viii).
Form B referred to in clause (v) of rule 17 of the Bombay Town Planning Rules, 1955 makes it clear that the increment is the difference in value of the same final plot in its developed and undeveloped condition.
This form keeps the valuation of the original plot distinct from that of the final plot.
The appellant 's case cannot fall under clause (viii) of section 32.
[94 G 99 B] What is contemplated by section 69 is that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired for the purposes of the scheme.
The property or right affected remains with the owner who is entitled to compensation for such injurious affection.
When under the Act a plot of land is taken for the purposes of a town planning scheme it cannot be said that land itself is injuriously affected.
[95 C E] There is no compelling reason for restructuring clause (xiii) suggested by the appellant.
Taking acquisition of land to mean "injurious affection" of the land acquired would be inconsistent with the entire scheme of the Act.
[95 F] In determining the amount of compensation awarded for land acquired under the Land Acquisition Act, that Act requires the Court to take into consideration the damage sustained by the "person interested" by reason of the acquisition injuriously affecting his other property.
" A "person interested" means a person claiming an interest in compensation to be made on account of the acquisition of land under the Land Acquisition Act and the damage is for injurious affection of some property other than the land acquired.
There is nothing in the Act to suggest that the generally accepted meaning of the expressions "injurious affection" used in the Land Acquisition Act should be construed differently in this Act.
[95 G 96 B] The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71.
The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not.
Compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme.
In the appellant 's case it would be the value of the original plot and not the final plot.
In determining the difference under section 32 (1) (iii) the Town Planning Officer has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme.
The Act contains necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot.
[96 C E]


judgement:
Civil Appeal No. 1679 of 1979.
From the Judgment and Order dated 15 5 1979 of the Gauhati High Court in Election Petition No. 7/78.
S.S. Ray, N.R. Chowdhary and Parijath Sinha for the Appellant.
R. Karaanjawala and P.H. Parekh for Respondent No. 1. 632 The Judgment of the Court was delivered by FAZAL ALI, J.
This election appeal is directed against a judgment dated May 15, 1979 of the Gauhati High Court by which the High Court accepted the election petition filed by the petitioner Aju Newmai and set aside the election of the appellant, N.C. Zeliang who had been declared elected from the No. 6 Tening Assembly Constituency of the State of Nagaland.
For short, the respondent No. 1, namely, the election petitioner in the High Court, shall be hereinafter referred to as the 'Petitioner ' and N.C. Zeliang, who had won the election, as the 'appellant '.
The elections were held in the year 1977 and were contested by the petitioner, the appellant and others.
The appellant contested the election as a Congress candidate with the symbol of 'cow and a calf ' whereas the petitioner contested on the ticket of the United Democratic Front (U.D.F.) whose election symbol was 'Cock '.
The other candidates in the field were Jangkhosei and Paokholun.
We are, however, not concerned with these candidates.
It appears that the appellant polled 2224 votes as against the 2207 votes polled by the petitioner and thus defeated the petitioner by a margin of 17 votes, the total votes in the constituency being only 5,000.
The poll took place on 8 11 1977 and the last date for filing the nomination paper was 24 10 1977.
Being aggrieved by the declaration of the appellant as having been duly elected to the Assembly, the petitioner filed an election petition on 5 1 1978 in the High Court challenging the election of the appellant on several grounds including the allegation that he had filed a false return of the expenses and had incurred much more expenses than fixed by the authorities concerned.
The petitioner also alleged a number of other corrupt practices which had been committed by the appellant in the course of the election.
The appellant in his written statement strongly refuted all the allegations made by the petitioner and submitted that he had committed no corrupt practice and that the return which he had filed to the District Election Officer was absolutely correct and the expenses incurred by him were well below the permissible limit.
A large number of issues were framed by the High Court but the High Court appears to have accepted the election petition only on one issue, viz., issue No. 4, which related to the corrupt practice as contemplated by section 123(6) of the Representation of the People Act (hereinafter referred to as the 'Act ') in incurring the expenditure exceeding the permissible limit which amounted to a contravention of 633 section 77 of the Act.
The other allegations made by the petitioner were held by the High Court as not proved.
The learned counsel for the petitioner, who argued this case with tenacity and ingenuity, was unable to support the allegation made by the petitioner on any other issue framed by the court except issues No. 4 and 5.
As the pivotal controversy in the instant case rests on issue No. 4, we would like to take up the finding of the High Court on this issue first.
Issue No. 4, as framed by the High Court, may be extracted as follows: "Whether the Respondent No. 1 committed corrupt practice, as defined under sec.
123(6) of the Representation of the People Act, 1951, by incurring or authorising expenditure exceeding the permissible amount, in contravention of section 77 of the said Act, as alleged in paragraphs 10, 11 Ground No. (II) and Schedule B to the Petition? If so, is the election of Respondent No. 1 liable to be set aside?" This issue was based on the plea taken by the petitioner in paragraph 10 and ground No. II as also Schedule B to the petition and it may be necessary to traverse the allegations made by the petitioner regarding this issue.
Paragraph 10 appears to be an omnibus statement which contains a number of grounds including the question of incurring unauthorised expenditure with which alone we are concerned for the present, and may be extracted thus: "That the petitioner also states and contends that the election of Respondent No. 1 is liable to be declared void as he committed several corrupt practices, namely (1) the corrupt practice as defined in sub section (6) of section 123 of the Act, that is to say, incurring or authorising expenditure in contravention of section 77 of the Act; (2) the corrupt practice of bribery as defined in sub section (1) of section 123 of the Act; (3) the corrupt practice of hiring or procuring vehicles for the free conveyance of electors to and from certain polling stations within the said Assembly Constituency as defined in Section 123(5) of the Act.
The material facts and particulars of these corrupt practices are set out hereunder." Ground No. II of the petition may be extracted as follows: "For that the Respondent No. 1 committed the corrupt practice as set out in sub section (6) of section 123 of the Act by incurring or authorising expenditure in contravention of section 77 of the Act.
" 634 The material particulars relating to the allegation made in Ground No. II are contained in Schedule B to the petition, the relevant portion of which may be extracted thus: "B 1.
In his return of election expenses, the Respondent No. 1 returned the total expenditure of Rs. 1323.69.
. . . . B 3.
Expenses incurred in connection with hire charges of vehicles and petrol and mobil oil consumed on account of these vehicles and in purchasing accessories: (i) The respondent hired a jeep bearing No. NLK 4308 from Wilubo of Dimapur and paid hire charge of Rs. 3000 including the cost of the driver to the said owner.
(ii) On 3 11 1977 the Respondent No. 1 purchased two tyres valued at Rs. 720 from the firm Motilal Dungarmall of Dimapur and one exide battery from the firm Bakliwal and Gangwals of Dimapur at the cost of Rs. 540 for the purpose of the aforesaid vehicle No. NLK 4308.
(iii) On 28 10 1977 the Respondent purchased petrol worth Rs. 240 for the vehicle No. NLK 6284 used by him for the purpose of election from the firm of Pulchand Trilokchand, Dimapur under voucher No. 270800.
" We have already mentioned that all the allegations made by the petitioner were stoutly denied by the appellant.
Thus, from the allegations made by the petitioner so far as issue No. 4 is concerned, the gravamen of the charge against the appellant was that while he had shown a total expenditure of Rs. 1323.69 in his return filed before the District Election Officer yet he had incurred expenditure far exceeding the same Paragraphs B 3(i), (ii) and (iii) of Schedule B to the petition, extracted above.
show that the appellant had incurred a total expenditure of Rs. 3960.
According to the petitioner these expenses were incurred on the hiring of jeeps and purchasing tyres and other accessories for jeep NLK 4308 which was used for the purpose of election campaign.
The permissible limit being Rs. 2,500 only, the expenditure incurred, according to the petitioner, exceeded the limit by Rs. 1460.
It was also alleged by the petitioner that jeep No. NLK 4308 was hired by the appellant from one Wilubo of Dimapur who was paid hiring charges of Rs. 3,000.
We might state here that according to the finding of the High Court, the petitioner himself admitted in his evidence that the expenditure incurred 635 for the purchase of tyres and battery (Rs. 720 and Rs. 540 respectively) were included in the amount of Rs. 3,000, the balance being the hire charges.
The petitioner, therefore, contended that, at any rate, the appellant had exceeded the expenses incurred in the election by at least Rs. 500, a fact which, according to him, he had proved to the satisfaction of the court.
We have gone through the judgment of the High Court carefully and what we find is that the High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove the corrupt practice alleged against the appellant.
It is now well settled by a large catena of authorities that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence.
It is not open to the court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt.
The electoral process in this country is an extremely expensive one and by declaring the election of a candidate null and void, the entire process, so far as the candidate is concerned is set at naught resulting in re election.
Such a course should be adopted only when the allegation of corrupt practice is proved conclusively.
In K.M. Mani vs P.J. Antony & Ors.(1), this Court while referring to a large number of cases observed as follows: "An allegation regarding the commission of a corrupt practice at an election is a very serious matter not only for the candidate but for the public at large as it relates to the purity of the electoral process.
. . . In taking that view the trial court lost sight of the requirement that the allegation regarding the commission of a corrupt practice is in the nature of a quasi criminal proceeding which has to be established beyond reasonable doubt and not merely by preponderance of probabilities.
In Mohan Singh 's case ; it has been held that the onus of proving the commission of a corrupt practice is not discharged on proof of mere preponderance of probability as in a civil suit, and it must be established beyond reasonable doubt by evidence which is clear and unambiguous.
636 In Balakrishna ; it has been held that while consent may be inferred from circumstantial evidence, the circumstances must point unerringly to the conclusion and must admit of no other explanation, for a corrupt practice must be proved in the same way as a criminal charge. .
The election petitioner must therefore exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent, and the trial court erred in basing its finding on a mere probability.
" It is not necessary to multiply authorities on this point because the law has been fully crystallised on the subject.
The petitioner who was examined as PW 1 has clearly stated in his evidence that he was told by Wilubo that the appellant had hired Jeep No. NLK 4308 from him for a lump sum of Rs. 3,000 which were the hire charges.
The witness further admitted that Wilubo was his relation being the brother of his elder brother 's wife and was staying at Dimapur.
Thus, the petitioner himself had no personal knowledge as to the actual hiring charges paid to Wilubo by the appellant and his source of information is based on what he heard from Wilubo.
Wilubo, however, who was examined as a witness for the appellant, has denied these allegations and has also denied having told the petitioner that his Jeep was hired by the appellant, much less for a sum of Rs. 3,000.
Mr. Karanjawala, appearing for the petitioner, vehemently contended that the manner in which Wilubo was examined by the appellant as his witness shows that he was not speaking the truth.
It was pointed out that, to begin with, Wilubo was cited as a witness for the petitioner and summons were issued to Wilubo but he evaded service and ultimately a warrant had to be issued when the counsel for the appellant informed the court that Wilubo would be examined as a witness for the appellant.
Our attention was also drawn to the cash memos.
which show that the tyres costing Rs. 720 and battery worth Rs. 540 were purchased.
Even accepting this part of the case, all that has been shown is that a sum of Rs. 1260 was spent so far as jeep No. NLK 4308 was concerned.
But this fact by itself was not sufficient to prove the allegations made by the petitioner against the appellant.
It had further to be shown by the petitioner to the satisfaction of the court that Wilubo had charged a hiring charge of Rs. 3,000 or nearabout that from the appellant and that he himself had purchased the tyres and battery.
Wilubo had denied this allegation, the evidence of the petitioner on this point is purely hearsay and, therefore, inadmissible in evidence.
It was, however, argued by Mr. Karanjawala 637 that from the evidence of the witnesses produced by the petitioner, it would appear that Jeep No. 4308 was freely used for a large number of days from which it could be safely presumed that the charges for the jeep must have been in the region of Rs. 3,000.
In the first place, there is no clear evidence of any of the witnesses examined by the petitioner to show the exact period for which the jeep was used or the distance which it had traversed nor is there anything to show that such an amount as Rs. 3,000 could have been paid as hiring charges to Wilubo by the appellant.
The evidence merely shows that the jeep was used either on the election day, or a day after or a day before that.
There is no evidence to show what were the customary hiring charges for jeeps or cars in the localities where the jeep is said to have been used by the appellant.
It is, however, suggested by Mr. Karanjawala that as Wilubo appears to be a man of small means, it must be presumed that he must have made a lot of money by hiring out the jeep to the appellant.
This is also a pure conjecture and cannot be pressed into service for unseating the appellant which can be done only if the evidence, even if it consists of circumstantial evidence must be clear and conclusive.
We have been taken through the evidence of PWs 1, 5, 6, 13 and 20 but none of these witnesses gives us any idea of the prevailing rate of hire in the localities concerned which could have been paid by the appellant to Wilubo for the jeep.
The evidence led by the petitioner falls far short of the standards required by law.
Another important circumstance that militates against the case of the petitioner is that while the petitioner admits in his evidence that he used to maintain some sort of a diary of his electioneering yet he had not produced it on the plea that he did not remember where he had kept the diary.
In this connection, the petitioner deposed as follows: "I had maintained some sort of a diary of my electioneering.
The diary was of course not maintained regularly.
I do not remember where I kept the diary.
I have not filed the same in Court.
" It is, therefore, manifest that the diary would have been the best evidence to show that as to how many days the jeep was used or for what distance and as also the hiring charges paid by the appellant to Wilubo.
The petitioner has withheld the diary and has not filed the same in the court from which a natural presumption arises that if he had produced the diary it would have gone against his case.
Even PW 6 who, according to the petitioner, was an independent witness, has merely said that he knew that the appellant had used a jeep but he does not 638 either give the dates when the jeep was used or the distance which it had traversed.
He, however, further admits that although he had seen the jeep he did not see the appellant, Zeliang in it.
This, therefore, falsifies his allegation that the jeep was used by the appellant.
The evidence of other witnesses on this point is also not helpful to the petitioner and is even more vague than the evidence of PW 6.
In fact, there is some evidence to show that the appellant had visited various places in his constituency even on foot.
In the absence of such evidence it was not open to the High Court to accept the speculation of the petitioner that the appellant must have incurred hiring charges for the jeep exceeding Rs. 2,000 or so.
The appellant has denied having incurred any expenditure on the purchase of tyres and battery but taking the case of the petitioner at the highest and assuming that an expenditure of Rs. 720 for the tyres and Rs. 540 for the battery was incurred as is proved from the cash memos, produced by the petitioner, there is no reliable or credible evidence to show that the appellant had himself met the cost of these articles and used them for his election campaign.
Thus, the expenses indicated above are not at all relatable to the jeep in question.
In these circumstances therefore, we are clearly of the opinion that there is no legal evidence to support the corrupt practice alleged by the petitioner in that he had incurred expenditure beyond Rs. 2,500 and thus the petitioner has not been able to prove that the return of expenses filed by the appellant before the District Election Officer was wrong or inaccurate and in excess of the permissible limit.
Hence, the finding of the High Court on this point cannot be sustained.
Realising this difficulty, Mr. Karanjawala strongly pressed issue No. 5 framed by the High Court on the basis of one of the allegations made by the petitioner.
The High Court has, however, clearly held that the allegation which formed the subject matter of issue No. 5 has not been proved at all by the petitioner.
Mr. Karanjawala assailed the finding of the High Court on this point and submitted that this allegation was clearly proved by the petitioner.
There, however, appears to be an insurmountable obstacle in accepting the contention of the counsel for the petitioner on this point.
It is well settled that an allegation of corrupt practice must be clearly pleaded in the petition and the particulars given in the schedule.
Corrupt practice being in the nature of a fraud, it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter connected.
The High Court has rightly found that as the petitioner pleaded that it was the appellant himself who had held a feast, invited his voters and exhorted them to vote for him, the evidence shows that the appellant had not held the feast at all but it 639 was hosted by one of his agents in which the appellant was present and therefore it cannot be presumed that the feast was held at the instance of the appellant.
The High Court held that the allegation pleaded was not proved by the evidence which in fact was contrary to the pleadings and therefore no notice of such a corrupt practice could be taken.
With due respect, we find ourselves in complete agreement with the reasons given by the High Court on this aspect of the matter.
Issue No. 5 may be extracted thus: "Whether Respondent No. 1 committed corrupt practice of bribery, as defined under section 123(1)(a)(b) of the Representation of the People Act, 1951 by offering himself or by his agents with his consent, gratification by way of entertaining the electors of No. 6 Tening Assembly Constituency of the Nagaland Legislative Assembly with feasts, with the object, directly or indirectly, of inducing them to vote for the Respondent No. 1, as alleged in paragraphs 10, 11 (Ground No. III) and Schedule C to the petition? If so, is the election of Respondent No. 1 liable to be set aside?" In Schedule C the particulars given show that the appellant gave a feast on 2 11 77 and on 31 10 77 and on 12 11 77 to the electorate and purchased a pig on all these occasions for hosting the voters.
The evidence led, however, shows that no feast was hosted by the appellant at all but was done by some other person who was his agent while the appellant was present.
It is, therefore, manifest that the exact corrupt practice pleaded by the petitioner in Schedule C was not proved but was in direct variance with the evidence which he led on this point.
On this ground alone, therefore, the petitioner would have to be put out of court so far as issue No. 5 is concerned.
No other point was pressed before us by the counsel for the parties.
For the reasons given above, we are satisfied that there is no legal evidence to prove the corrupt practice alleged against the appellant that he had exceeded the limit of expenditure fixed in using the jeep, even if he had taken it from Wilubo.
Issue No. 5 also was rightly held by the High Court not proved.
In this view of the matter, the appeal is allowed.
The order of the High Court setting aside the election of the appellant and unseating him is hereby quashed.
In the peculiar circumstances of the case, there will be no order as to costs.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In the elections to the State Assembly in 1977 the appellant was declared elected.
The election petitioner, who was one of the defeated candidates, alleged in his petition that the appellant had filed a false return of the expenses and thereby committed corrupt practice within the contemplation of section 123(6) of the Representation of the People Act, 1951.
Accepting the allegation the High Court set aside his election.
Allowing the appeal.
^ HELD: (1) The High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove corrupt practice alleged against the appellant.
It is well settled that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence.
It is not open to the Court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt.
[635 B D] K.M. Mani vs P.J. Antony & ors. ; referred to.
(i) In the instant case the petitioner himself had no personal knowledge as to the actual expenses in hiring taxies and his source of information was based on what others said.
The evidence led by the petitioner falls far short of the standards required by law.
[636 D, 637E] (ii) The petitioner claimed that he maintained a diary of the electioneering.
Yet he did not produce it in Court from which a natural presumption arises that if he had produced the diary it would have gone against his case.
[637 G H] (2) Corrupt practice being in the nature of a fraud, it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter connected.
The High Court has rightly found that the petitioner pleaded that it was the appellant who had held a feast at which he invited his voters and exhorted them to vote for him.
But the evidence shows that the appellant had not held the feast but it was hosted by one of his agents at which the appellant was present and, therefore, it could not be proved that the feast was held at the instance of the appellant.
[638 G 639A]


judgement:
Civil Appeal No. 3133 of 1979 Appeal by special leave from the judgment and order dated the 30th July, 1979 of the Allahabad High Court in Sales Tax Revision No. 573 of 1979.
150 G.L. Sanghi, Bharat Ji Aggarwal, Naresh Kumar Sharma and Vineet Kumar for the appellant.
S.C. Manchanda and Mrs. Sobha Dixit for the respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short point for consideration in this appeal is whether the expression 'cooked food ' used in certain notifications issued under the U.P. Sales Tax Act, 1948 (U.P. Act XV of 1948) (hereinafter referred to as 'the Act ') can be construed as including within its meaning 'biscuits ' also.
The assessee, the appellant herein, is a registered firm engaged in the business of manufacture and sale of biscuits intended for human consumption.
The assessee is a registered dealer under the Act.
During the assessment proceedings under the Act for the year 1972 73 the assessee claimed that the turn over relating to biscuits manufactured and sold by it amounting to Rs. 35,09,920.38 P. was liable to be taxed at two per cent which was the rate prescribed by a notification issued by the State Government for cooked food contending that 'cooked food ' included 'biscuits ' also.
The notification relied on was one issued on October 6, 1971 under subsection (2) of section 3 A of the Act in supersession of an earlier notification dated July 1, 1969.
In both the notifications the tax was fixed at two per cent of the turn over payable at all points of sale in the case of cooked food.
The Assistant Commissioner (Tax Assessment) Sales Tax, Kanpur who was the assessing authority rejected the contention of the assessee that cooked food included biscuits also and imposed tax at the rate of three and a half per cent on the turn over relating to biscuits treating the same as an unclassified commodity.
An appeal filed against the order of the assessing authority before the Deputy Commissioner Sales Tax and a further appeal before the Judge (Appeal) Sales Tax, Lucknow were unsuccessful.
The High Court of Allahabad also declined to interfere with the said order.
This appeal by special leave is filed against the order of the High Court under Article 136 of the Constitution.
The only ground urged before us is that biscuits should have been treated by the authorities under the Act and by the High Court as cooked food and sales tax should have been levied on the turnover of biscuits at the rate prescribed in respect of cooked food under the notification referred to above.
The argument urged on 151 behalf of the appellant is that biscuit which was consumed by human being for nourishment is food and since it is prepared by baking which is a kind of cooking process it should be treated as cooked food.
Relying on some foreign English dictionaries it is contended that cooking means preparation of food by application of heat as by boiling, baking, roasting, broiling etc.
and biscuit should therefore be treated as cooked food.
What is of significance in this case is that the Hindi version of the notification issued uses the expression cooked food (pakaya hua bhojan) for 'cooked food ' found in the notification in English language.
It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force.
If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case.
In Hinde vs Allmond the question was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food namely Food Hoarding Order of 1917.
The learned judges held it was not even though in some other decisions it had been held to be an "article of food".
Shearman, J. one of the judges said that he rested his judgment on the common sense interpretation of the word 'food ' in the Order, apart from its meaning in any other statute '.
It is interesting to note that in a case before the Allahabad High Court in Annapurna Biscuit Manufacturing Co. vs State of U.P. the assessee had contended that biscuit was an article of confectionery and that contention was negatived.
It is relevant to note, as we have mentioned earlier, that when the Hindi text of the notification was issued contemporaneously with the English version, the words ( 'pakaya hua bhojan ') were used as the equivalent of the words 'cooked food '.
It may be that biscuit is served at tea time and in its wider meaning 'cooked food ' may include biscuit.
But ordinarily biscuit is not understood as cooked food.
If a person goes to a hotel or restaurant and asks for some cooked food or cooked food ( 'pakaya hua bhojan ') certainly he will not be served with biscuits in Uttar Pradesh.
While it is not necessary to state in the present case as to what all items may be called as cooked food, we can definitely say that in the context and background of the notification biscuit cannot be treated as cooked food.
152 The High Court of Allahabad has in an earlier case in Commissioner of Sales Tax vs Jassu Ram Bakery Dealer held that biscuit was not cooked food.
The High Court of Madhya Pradesh has also taken the same view in Commissioner of Sales Tax Madhya Pradesh vs Shri Ballabhdas Iswardas.
We approve of the views expressed in the aforesaid decisions.
There is no ground to interfere with the orders under appeal.
In the result, this appeal fails and is dismissed.
No costs.
S.R. Appeal dismissed.

summary/full:
Dismissing the appeal, the Court ^ HELD: 1.
In the context and background of the notification "biscuit" cannot be treated as "cooked food".
In the Hindi text of the notification, issued contemporaneously with the English version, the words (cooked food) were used as the equivalent for cooked food.
Ordinarily biscuit is not understood as "cooked food".
Nor any one asking for some "cooked food" in a hotel will be served with "biscuits" in Uttar Pradesh.
The item has been correctly treated as "unclassified commodity" and tax levied accordingly.
[151F,G,H] Commissioner of Sales Tax vs Jassu Ram Bakery Dealer, 38 S.T.C. 461; Commissioner of Sales Tax Madhya Pradesh vs Shri Bailabhdas Iswardas, 21 S.T.C. 309, approved.
It is a well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force.
If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case.
[151 C E] Hinde vs Allmond, , quoted with approval.


judgement:
etition (Criminal) No. 2690 of 1981.
(Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 3241 of 1981.
(Under article 32 of the Constitution of India) Ram Jethmalani and M.S. Ganesh for the Petitioner in W.P. No. 2690/81.
O.P. Rana and R.N. Poddar for the Respondents in W.P. No. 2690/81.
Ram Jethmalani and Miss. Rani Jethmalani for the Petitioner in W.P. No. 3241 /81.
Hardyal Hardy, section Narayanan and Miss A. Subhashini for the Respondents in W.P. No. 3241/81.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
These two Writ Petitions (Criminal) may be disposed of by a single judgment as some of the questions raised are common to both.
To begin with, we may refer to the facts in Writ Petition (Criminal) No. 2690 of 1981.
The Government of Maharashtra, in exercise of the powers under Sec.
3(1) of the COFEPOSA, directed the detention of Sunder Shankardas Devidasani by an order dated March 9, 1981, with a view to prevent him from smuggling goods and abetting the smuggling of goods.
The 142 grounds of detention, also of the same date, were duly served on the detenu.
The detenu made a representation on April 14, 1981 and this was rejected by the Government on April 25, 1981.
A further representation made by the detenu on April 25, 1981 was also rejected on May 2, 1981.
In the mean time the Advisory Board met on April 29, 1981 and considered the case of the detenu.
By a letter dated May 6, 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention.
In this application for the issue of a Writ of Habeas Corpus, the first submission of Shri Jethmalani, learned counsel for the detenu, was that although it was the Government that was required by Sec. 8(b) of the COFEPOSA to make the reference to the Advisory Board, in the instant case, it was not the Government but one of its subordinate officers that had made the reference.
There was thus, according to Shri Jethmalani, a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than five weeks mentioned in Sec 8(b) was illegal.
Shri Jethmalani 's contention was that Sec. 8 (b) required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant that the Government had first to decide that it was necessary to detain the person for more than five weeks and then to forward the reference to the Advisory Board.
The learned counsel would have it that the making of a reference to the Advisory Board necessitated a decision to detain the detenu for more than five weeks and this decision could be taken by the Government only and none else.
We are unable to agree with the submission of Shri Jethmalani.
article 22 (4) (a) of the Constitution prescribes that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
article 22 (7) (c) empowers Parliament, by law, to prescribe the procedure to be followed by an Advisory Board in an enquiry under article 22 (4) (a).
Sec. 3 (1) of the COFEPOSA authorises the Central Government, the State Government an officer of Central Government, not below the rank of a Joint Secretary specially empowered in that behalf, or an Officer 143 of a State Government not below the rank of a Secretary specially empowered in that behalf to make an order directing that a person be detained, if satisfied, with respect to that person, that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, etc.
Sec. 3 (3) provides for the communication of the grounds of detention to the detenu to enable him to make a representation.
The communication has to be ordinarily not later than five days of the date of detention though in exceptional circumstances, for reasons to be recorded in writing, it may be fifteen days.
Sec. 8 provides for the constitution of Advisory Boards and the procedure to be followed by them.
Sec. 8 (b) obliges the appropriate Government, within five weeks from the date of detention of a person under a detention order, to make a reference in respect of the detention to the Advisory Board to enable the Advisory Board to make the report under article 22 (4) (e) of the Constitution.
Sec. 8 (c) prescribes the procedure to be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned.
Sec, 8 (f) stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned.
If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an order of detention made by a State Government, an officer of a State Government or an Officer of the Central Government.
The power of the State Government and the Central Government, under Sec.
11 of the COFEPOSA, to revoke orders of detention is in addition to the power under Sec.
21 of the General Clauses Act to revoke their own orders.
The first important factor to be noticed here is that the period for which a person is to be detained under the COFEPOSA is not to be determined and specified at the time of making the original order of detention under Sec.
It has to be determined and specified at the time of confirming the order of detention under Sec. 8 (f), after receiving the report of the Advisory Board.
The second factor 144 of importance which calls for attention is that while an order of detention may be made by the State Government, the Central Government or an Officer of either Government specially empowered in that behalf, an order of detention may only be confirmed by the appropriate Government.
Keeping in mind these two factors, we may now examine the time scheme under the COFEPOSA.
First the detaining authority, who may be the Central Government, the State Government or an Officer of either Government, specially empowered in that behalf, must be satisfied that it is necessary to detain a person with a view to preventing him from acting in a certain manner or doing certain things, and if so, satisfied, an order of detention may be made (Sec. 3 (1), COFEPOSA).
The order of detention has not to specify the proposed period of detention at that stage.
Within five days of the detention, the detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority (article 22(5) of the Constitution and Sec.
3(3), COFEPOSA).
Thereafter, within three months from the date of detention, the Advisory Board has to report the sufficiency of cause for such detention.
This is a constitutional mandate (article 22(4) of the Constitution).
In order to enable the Advisory Board to discharge its constitutional obligation, the Government is required to make a reference to the Advisory Board within five weeks from the date of detention (Sec. 8(b) of COFEPOSA).
The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention, specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned (Sec. 8(c), COFEPOSA).
Quite obviously the period of eleven weeks from the date of detention prescribed for the submission of the report of the Advisory Board is to enable compliance with the Constitutional time limit of three months.
On receipt of the report the Government has to revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention (Sec. 8(f) COFEPOSA).
In the meanwhile, at any time, the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an Officer of the State Government, are entitled to revoke the order of detention.
Thus there is no Constitutional or Statutory obligation on anyone, until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention.
The initial compulsion on the detaining authority before making an order of detention is 145 to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts.
The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board.
There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though, at any and every stage, the Government has the full liberty to revoke the order of detention.
We are, therefore, of the view that the act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion, though of course the Government is at that stage, as at all other stages, at liberty to revoke the order of detention.
The prescription of five weeks in Sec.
8(b) of the COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the Constitutional requirement of article 22(4) and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage.
We, therefore, reject the first submission of Shri Jethmalani.
The second submission of the learned counsel for the detenu was that the representation was disposed of by the Minister of State, Home Affairs, Government of Maharashtra without any authority to do so.
It is somewhat strange that this contention should have been raised before us.
We understand that this very contention was previously raised in another Writ Petition and that the relevant standing order was produced before the Court at the hearing of the Writ Petition and that it was also shown to the learned counsel.
The standing order is made by Shri A.R. Antulay, Chief Minister of Maharashtra and Minister for Home and it directs allotment of the business appertaining to "All cases of and the Conservation of Foreign Exchange and Prevention of Smuggling Activities.
Maharashtra Detention Order, 1974 and all other matters arising under the provisions of the said Act and the said order . . and any other orders issued under this Act, except.
. ." (We are not concerned with the exceptions) to the Minister of State for Home, Shri Abhey Singh Maharaj Raje Bhosale.
Rule 6 of the Maharashtra Govt.
Rules of Business made by the Governor of Maharashtra in exercise of the powers conferred by Article 166 (2) and (3) of the Constitution provides that the Chief Minister and a 146 Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department.
It is, therefore, clear that the Minister of State, Home Affairs, Government of Maharashtra was entitled to deal with the representation of the detenu.
It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant.
There is no substance in this suggestion.
The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government authorised to so act for the Government under the Rules of Business.
Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so.
Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages.
It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages.
It is unnecessary to pursue the matter any further as we find no constitutional or legal infirmity in the representation having been considered by the Minister of State, Home Affairs, Government of Maharashtra.
The learned counsel next submitted that the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board.
In his representation to the Government the detenu did make a request to be permitted to be represented by a lawyer.
The Government informed him that under the provisions of Sec. 8(e) of the COFEPOSA he was not entitled to be represented by a lawyer before the Advisory Board and therefore, it was not possible to grant his request.
The complaint of the learned counsel for the detenu was that while a detenu may not be entitled, as of right, to be represented by a lawyer before the Advisory Board, there was no bar against a lawyer being permitted to appear before the Advisory Board and therefore, the request of a detenu to be represented by a lawyer had to be considered on the merits of each individual case.
This the learned counsel submitted had not been done in the present case and the detenu 's request was never placed before the Advisory Board.
It is true that while Sec. 8(e) disentitles 147 a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer.
We agree that the importance of legal assistance can never be over stated and as often than nota dequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the Right to be heard given to a detenu by Sec.
8(e), COFEPOSA.
These rights may be jeopardised and reduced to more nothings without adequate legal assistance.
That would depend on the facts of each individual case, in the light of the intricacies of the problems involved and other relevant factors.
Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case.
In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board.
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer.
He preferred not to do so.
In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him.
The last submission of the learned counsel was that there was a non application of the mind of the detaining authority, first in making the order of detention and later in considering the representation of the detenu.
It was contended that the recital in the grounds of detention that detenu had made a statement that certain documents received at the detenu 's residence at the time of search pertained to the order dated 29.11.1980 of Shri Abdullahi Amin, Attache, Sudan Consulate was not correct and that the detenu 's statement contained no such recital.
It was said that the grounds of detention read as if the detenu had admitted the existence of the order dated 29.11.80 in the statement made by him.
We do not find any substance in this submission.
A reading of the document leaves no such impression.
All that was said was that the documents received by post at the time of search pertained to an order dated 29.11.80 and not that there was admission by the detenu that there was ever an order dated 29.11.80.
It was then contended that in the course of communication of the grounds of detention the detenu was informed that 148 it was against the public interest to disclose the source of intelligence and the further facts contained therein.
The actual sentence by which privilege was claimed against disclosure was as follows: "I consider it against public interest to disclose the source of intelligence referred to in the grounds furnished above and further consider it against public interest to disclose further facts contained therein".
The argument was that the grounds did not state that the Government considered it against public interest to disclose the source of intelligence and the further facts contained therein but that it was the Assistant Secretary to the Government of Maharashtra who signed at the bottom of the grounds that though it was against the public interest to disclose the source of intelligence and the facts contained therein.
The emphasis was on the use of the first person by the Assistant Secretary.
This was explained by the respondents as a Clerical mistake and was later rectified by making suitable corrections.
It was contended that the discovery of the mistake and its rectification was after the Advisory Board had submitted its report, though the detenu had even earlier, raised the question that it was the Government and not the Assistant Secretary that could claim privilege.
It was not brought to the notice of the Advisory Board at any time that the mistake was only clerical.
We have the least hesitation in rejecting the contention.
The mistake is so obviously clerical that we cannot permit the detenu to take advantage of it.
In the result W.P. No. 2690/81 is dismissed.
The first two questions raised in the previous Writ Petition are common to Writ Petition No. 3241 of 1981 also.
An additional point was sought to be raised that the copy of a certain document was not supplied to the detenu but after verification the point was abandoned by the learned counsel.
This Writ Petition is also dismissed.
N.V.K. Petitions dismissed.

summary/full:
The husband of the petitioner was detained by the State Government under section 3(1) of the with a view to prevent him from smuggling goods and abetting the smuggling of goods.
His representation to the State Government was rejected.
The Advisory Board informed him by a letter that the Board had reported to the Government advising them that there was sufficient material to justify his detention.
In the writ petition filed in this Court it was contended on behalf of the detenu: (1) although it was the Government that was required by section 8(b) of the COFEPOSA to make the reference to the Advisory Board, it was not the Government but one of its subordinate officer that had made the reference, and that this departure from the prescribed procedural requirement had made the continued detention of the detenu for any period longer than the five weeks mentioned in section 8(b) illegal; (2) the representation was disposed of by the Minister of State of Home Affairs of the State Government without any authority to do so; (3) the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board; (4) there was a non application of the mind of the detaining authority first in making the 139 order of detention and later in considering the representation of the detenu; and (5) that it was the Assistant Secretary to the State Government who signed at the bottom of the grounds that he thought it was against the public interest to disclose the source of intelligence and the facts contained therein.
In the connected writ petition, only the first two of the aforestated contentions were raised.
Dismissing the writ petitions, ^ HELD: 1.(i) The order of detention has not to specify the proposed period of detention at that stage.
Within five days of the detention, detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority.
(Article 22(5) of the Constitution and section 3(3), COFEPOSA).
Thereafter, within three months from the date of detention, the Advisory Board has to report on the sufficiency of cause for such detention.
This is a constitutional mandate (Article 22(4) of the Constitution).
In order to enable the Advisory Board to discharge its constitutional obligation the Government is required to make a reference to the Advisory Board within five weeks from the date of detention.
(Section 8(b) of COFEPOSA).
The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention, specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned (Section 8(c) COFEPOSA).
The period of eleven weeks is to enable compliance with the Constitutional time limit of three months.
On receipt of the report the Government has to revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported there is sufficient cause for the detention.
(Section 8(f) COFEPOSA).
In the meanwhile at any time the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an Officer of the State Government, are entitled to revoke the order of detention.
[144 C G] (ii) There is no constitutional or statutory obligation on any one, until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention.
The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts.
The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board.
There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though, at any and every stage, the Government has the full liberty to revoke the order of detention.
[144 H 145 C] (iii) The act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion, though of course the Government is at the stage, as at all other stages at liberty to revoke the order of detention.
The prescription of five weeks in section 8(b) of the 140 COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the constitutional requirement of Article 22(4) and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage.
[145 D] 2.(i) The Maharashtra Government Rules of Business made by the Governor in exercise of the powers conferred by Article 166(2) and (3) of the Constitution provides by Rule 6 that the Chief Minister and a Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department.
The Standing Order made by the Chief Minister of Maharashtra and Minister for Home directs allotment of the business appertaining to "All cases of and the Conservation of Foreign Exchange and Prevention of Smuggling Activities . . .
Maharashtra Detention Order, 1974 and all other matters arising under the provisions of the said Act and the said Order. .and any other orders issued under this Act, except. ." to the Minister of State for Home.
The Minister of State for Home Affairs was therefore entitled to deal with the representation of the detenu.
[145 H, F G; 146 A] (ii) Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so.
Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages.
It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages.
There is therefore no substance in the suggestion that the representation of the detenu should have been considered by the very individual who had exercised his mind at the initial stage of making the order of detention.
[146 D, B] 3.
While section 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer.
The importance of legal assistance can never be over stated and adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the Right to be heard given to a detenu by section 8(e) of COFEPOSA.
These rights may be jeopardised and reduced to mere nothings without adequate legal assistance.
That would depend on the facts of each individual case, in the light of the intricacies of the problems involved and other relevant factors.
Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case.
[146 H 147 C] In the instant case, the State Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board.
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have, if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer.
He preferred not to do so.
The detenu was, therefore, not wrongfully denied the assistance of 141 counsel as to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him.
[147 D E] 4.
A reading of the grounds of detention reveals that all that was said was that the documents received by post at the time of search pertained to an order dated 29.11.1980 and not that there was any admission by the detenu that there was ever an order dated 29.11.1980.
[147 H] 5.
The mistake that it was only the Assistant Secretary of the State Government who signed at the bottom of the grounds that it was against the public interest to disclose the source of intelligence was explained by the respondents as a clerical mistake, and was later rectified by making suitable corrections.
[148 C E]