judgement:
Appeal No. 1164 of 1966.
66 Appeal by special leave from the judgment and order dated September 27, 1965 of the Kerala High Court ' in O.P. No. 688 of 1965.
D. Narsaraju, S.A.L. Narayana Rao, R.N. Sachthey and B.D. Sharma, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
The short but important question which is involved in this appeal 'by special leave from a judgment of the Kerala High Court is whether the Appellate Income tax Tribunal has the power, under the relevant provisions of the Income tax Act, 1961, (hereinafter called the Act) to stay the recovery of the realization of the penalty imposed by the departmental authorities on an assessee during the pendency of an appeal before it.
The assessee, who is the respondent, was imposed penalties in the sum of Rs. 18,000/ , 1,700/ and 14,000/ respectively in respect of the assessment years 1954 55, 1960 61 and 1961 62.
These penalties were imposed .under section 271(1)(c) read with section 274(2) of the Act for concealment of particular income and furnishing inaccurate particulars.
The assessee preferred appeals to the Income tax Appellate Tribunal and made an interim prayer for stay of collection of the penalties imposed.
The Tribunal declined to order any stay holding that it had no power to grant such a prayer.
The assessee then moved the High Court under article 226 of the Constitution.
The High Court held that the Tribunal had the power to stay the proceedings as also the collection of the penalties pending the appeal since that power was incidental and ancillary to its appellate jurisdiction.
The Tribunal was consequently directed to dispose of the stay application in accordance with law.
The relevant provisions.
of the Act may be first noticed.
Section 156 provides that when any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under the Act, the Income tax Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.
Under section 220( 1 ) any amount specified in the notice of demand under section 156 has to be paid within 35 days of the service of the notice or within such lesser period as may be specified under the proviso to sub section
If the amount is not paid within the period limited or extended (the assessee can ask for an extension) the assessee shall be deemed to be in default.
Sub section (6) of section 220 provides that where an assessee has presented an appeal under section 246 the Income tax Officer may, in his discretion and subject to such conditions as he may think fit, treat the assessee as not being in default so long as the appeal .remains pending.
67 Section 221 provides for the imposition of penalty when the assessee is in default.
Sections 222 to 224 relate to the issuance of a certificate to the Tax Recovery Officer.
Under section 225 the Income tax Officer can order stay of proceedings, even after the certificate has been issued to the Tax Recovery Officer.
It may be mentioned that the last four sections in terms relate to recovery of tax, but by virtue of section 229 any penalty imposed is also recoverable in the same manner.
Section 246 to which reference has been made in section 220(6) gives the appealable orders against which an assessee may appeal to the Appellate Assistant Commissioner.
Appeals to the Tribunal are dealt with by sections 252 to 255.
Section 252 provides merely for constitution of the Tribunal.
Section 253 says that any assessee aggrieved by the orders set out in cls.
(a), (b) and (c) of sub section
(1) may appeal to the Tribunal.
The Commissioner is also entitled to direct the Income tax Officer to file an appeal against the order of an Appellate Assistant Commissioner made under section 250.
Section 254 specifies the orders which the Tribunal can make.
Sub section (1 ) which is material may be reproduced below : "254.
Orders of Appellate Tribunal. ( 1 ) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
" Section 255 gives the procedure of the Appellate Tribunal.
Subsections (5) and (6) of this section need alone be noticed.
"255 (1) . . . . . (2) (3) (4) (5) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.
(6) The Appellate Tribunal shaH, for the purpose of discharging its functions, have all the powers which are vested in the Income tax authorities referred to in section 131, and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 68 228 and for the purpose of section 196 of the Indian Penal Code (XLV of 1860) and the Appellate Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898).
" Section 131 may at this stage be referred to.
It gives to the Income tax Officer, the Appellate Assistant Commissioner and the Commissioner the same powers as are vested in the court under the Code of Civil Procedure when trying a suit in respect of the matters specified in the section.
But these powers relate to discovery and inspection; enforcing the attendance of witnesses; compelling production of books of account etc.; issuing commissions and allied matters.
There can be no manner of doubt that by the provisions of the Act or the Income tax Appellate Tribunal Rules, 1963 powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee.
At the same time it is significant that under section 220 (6) the power of stay by treating the assessee as not being in default during the pendency of an appeal has been given to the Income tax Officer only when an appeal has been presented under section 246 .which will be to the Appellate Assistant Commissioner and not to the Appellate Tribunal.
There is no provision in section 220 under which the Income tax Officer or any of his superior departmental officers can be moved for granting stay in the recovery of penalty or tax.
It may be that under section 225 notwithstanding that a certificate has been issued to the Tax Recovery Officer for the recovery of any tax (the position will be the same with regard to penalty) the Income tax Officer may grant time for the payment of the tax.
In this manner he can probably keep on granting extensions until the disposal of the appeal by the Tribunal.
It may also be that as a matter of practice prevailing in the department the Commissioner or the Inspecting Assistant Commissioner in exercise of administrative powers can give the necessary relief of staying recovery to the assessee but that can hardly be put at par with a statutory power as is contained in section 220(6) which is confined only to the stage of pendency of an appeal before the Appellate Assistant Commissioner.
The argument advanced on behalf of the appellant before us that in the absence of any express provisions in sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal it must be held that no such power can be exercised by the Tribunal, suffers from a fundamental infirmity inasmuch as it assumes and proceeds on the premise that the statute confers such a power on the Income tax Officer who can give the necessary 69 relief to an assessee.
The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the Appellate Tribunal.
Indeed the Tribunal has been given very wide powers under section 254(1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal.
If the Income tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay or recovery the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside.
It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion.
The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the Appellate Tribunal under section 220 (6 ) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income tax Officer.
It is a firmly established rule that an express grant of statutory.
power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, articles 5401 and 5402).
The powers which have been conferred by section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers, fully effective.
In Domat 's Civil Law Cushing 's Edition, Vol. 1 at page 88, it has been stated: "It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it." Maxwell on Interpretation of Statutes, Eleventh Edition, contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.
Cui jurisdiction data est, ea quoque concessa esse videntur, sine quibus jurisdiction explicari non potuit.
" An instance is given based on exhibit parte Martin(x) that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced." (1) , 491. 70 The High Court in the present case has referred to certain decisions under the Motor Vehicles Act in which the question arose whether an interim order of stay could be passed although section 64(2) of the Motor Vehicles Act as amended did not expressly confer a power on the authority to pass such an order.
It was held in those cases that the power to stay was a necessary corollary to the power to entertain an appeal or revision: Swarnambikar Motor Service vs Wahite Motor Service(D; Themmalpuram Bus Transport Ltd. vs The Regional Transport Officer, Malabar(2).
The full bench decision in Dharmadas vs State Transport Appellate Tribunal(3) related to the question whether a remand could be ordered in exercise of appellate jurisdiction under section 64 of the Motor Vehicles Act in the absence of any express power to that effect existing in the statute.
It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by section 64.
According to the decision in the Burhanpur Tapti Mill Ltd. vs The Board of Revenue, Madhya Pradesh & Ors.
(4), since the Board of Revenue had the power to adjudge the correctness of an order passed by the Commissioner under section 22B reopening an assessment the Board had also the power to stay the fresh assessment proceedings started by the Assistant Commissioner in pursuance of that order.
It was said that the general principle was that in a taxing statute there was no room for what could be called the equitable construction, but that principle applied only to the taxing part of the statute and not to the procedural part.
It has further been observed that "where the legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief.
" It is well known that an Income tax Appellate Tribunal is not a court but it exercises judicial powers.
The Tribunal 's powers in dealing with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate court under the Civil Procedure Code.
(See Commissioner of Income tax, Bombay City vs Hazarimal Nagji & Co.(5) and New India Assurance Co. Ltd. vs Commissioner of Income tax, Excess Profits, Bombay City(6).
In Polini vs Grey(7), this is what Jessel M.R. said about the powers of the Court of Appeal to.
grant stay at page 443: "It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party, is to Shortnotes (1956) 2M.L.J. 12.
(2) A.I.R. 1957 Kerala.
(3) [1962] Kerala L.J. 1133.
(4) (1955) 6 S.T.C. 670.
(5)46 I.T.R. 1168.
(6) 31 I.T.R. 844.
(7) 71 reap the fruits of that litigation, and not obtain merely a barren success.
That principle, as it appears to me, applies as much to the Court of first instance before the first trial, and to the Court of Appeal before the second trial, as to.
the Court of last instance before the hearing of the final appeal".
There are certain decisions, however, in which difficulty was felt that the Appellate Tribunal did not possess the power to stay recovery during the pendency of an appeal.
In Vetcha Sreeramamurthy vs The Income tax Officer Vizianagram & Another(1), the assessee had to file a writ petition because the realisation of the tax assessed had not been stayed during the pendency of an appeal before the Tribunal.
The controversy centred in that case mainly on the scope of the discretionary power conferred by section 45 of the Indian Income tax Act, 1922, on the Income tax Officer.
It was held that a writ petition to compel the Income tax Officer to exercise his discretion under section 45 or to exercise it honestly and, objectively was not barred.
But on the merits the Court declined issue a writ.
Viswanatha Sastri J., in his separate judgment made the following observations at page 271: "Lastly it has to 'be observed that section 45 of the Income tax Act is somewhat cryptic in its terms and merely gives the Income tax Officer power to declare a person to be not in default pending the appeal.
There is no provision for stay similar to Order XLI, Rules 5 & 6, of the Civil Procedure Code.
There is no conferment of an express power of granting a stay of realisation of the tax, though the effect of an order in favour of the assessee under section 45 of the Act is a stay.
Nor is there a provision for allowing the tax to be paid in instalments or for taking security for deferred payment.
Neither the Appellate Assistant Commissioner nor the Appellate Tribunal is given the power to stay the collection of tax.
Whether the law should not be made more, liberal so as to enable an assessee who has preferred an appeal, to obtain from the appellate forum, a stay of collection of the tax, either in whole or in part, on furnishing suitable security, is a matter for the legislature to consider.
" It is interesting that in another case Pollisetti Narayana Rao vs Commissioner of Income tax, Hyderabad(2), the same High Court held that stay could be granted by it pending reference of a case by the Appellate Tribunal to the High Court.
This power the High Court had under section 151 of the Civil Procedure Code and under article 227 of the Constitution.
(1) (2) 72 The High Court, in the present case, referred to a passage from Halsbury 's Laws of England, 3rd Edition, Vol. 20, p. 705 where it is stated that "no tax is payable while the assessment is the subject matter of an appeal except such part of the tax assessed as appears to the Commissioners seized of the appeal not to be in dispute.
" This statement is apparently based on the provisions of the English Statutes and it is not possible to derive any assistance from it.
Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision.
In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction.
This is particularly so when section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an .appeal is pending before the Appellate Tribunal.
It could well be said that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory.
A certain apprehension may legitimately arise in the minds of the authorities administering the Act that if the Appellate Tribunals proceed to stay recovery of taxes or penalties payable by or imposed on the assessees as a matter of course the revenue will be put to great loss because of the inordinate delay in the disposal of appeals by the Appellate Tribunals.
It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue.
It wilt only be when ' a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal.
For all the reasons given above, the appeal fails and it is hereby dismissed.
But in view of the entire circumstances the parties are left to bear their own costs.
V.P.S. Appeal dismissed.

summary/full:
Certain amounts were imposed as penalty upon the assessee (respondent) under sections 271(1)(c) and 274(2) of the Income tax Act, 1961, for concealment of particulars of income and for furnishing inaccurate particulars.
The assessee preferred appeals before the Appellate Tribunal and prayed for stay of recovery of the penalties pending disposal of the appeals, but the Tribunal declined to stay on the ground that it had no power to do so.
The assessee moved the High.
Court under article 226 and the High Court held that the Tribunal had the power to stay and directed the Tribunal to dispose of the stay application in accordance with law.
In appeal to this Court, HELD: The Tribunal has the power to order the stay of recovery of the penalty as an incidental and ancillary power to its appellate jurisdiction.
[72 C] Under section 220(6) the Income tax Officer has a power not to treat an assessee as being in default, when an appeal under section 246 before the Appellate Assistant Commissioner is pending.
But neither the Income tax Officer nor any other departmental officer has the power to stay the recovery of penalty when an appeal is pending before the Tribunal.
The Act is silent in that behalf, and there is no provision in the Act or the Income tax Appellate Tribunal Rules, 1963, granting expressly such a power to the Tribunal.
That is because, the Tribunal, though not a court, exercises in its appellate jurisdiction under section 254 judicial powers of an appellate court of the widest possible amplitude 'and such a statutory power impliedly grants the power of doing all such acts, or employing such means as are essentially necessary to the execution of such jurisdiction and carries with.
it the power to stay proceedings in proper cases.
In view of the special nature of taxation 'and revenue laws.
such power can be exercised after imposing conditions for safeguarding the revenue only in deserving and appropriate cases where the appeal will be otherwise frustrated or rendered nugatory.
The general principle that in a taxing statute there is no room for what could be called equitable construction applies only to the taxing part of the statute and not to its procedural part.
[68 C E; 69 E; 70 D E; 72 F G] Burhanpur Tapti Mills Ltd. vs Board of Revenue, Madhya Pradesh, (1955) 6 S.T.C. 670, referred to.
Observations in Vatcha Sreeramamurthy vs I.T.O. Vizianagaram, at p. 271, disapproved.


judgement:
Appeal No. 776 of 1966.
Appeal by special leave from the judgment and order dated April 26, 1965 of the Madras High Court in A.A.O. No. 1 of 1962.
S.C. Manchanda and T. A. Ramachandran, for the appellant.
B. Sen, M. Srinivasan and R. Thiagarajan for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The respondent is the owner of premises No. 8, Brahmin Street, Saidapet, Madras.
By a registered lease dated November 21, 1952 he let to the appellant the backyard of the 160 premises for a term of 5 years.
The backyard consisted of vacant land.
The lease deed authorized the appellant to use land for boiling ,and drying paddy, to use the gate in the western compound wall for ingress and egress, to erect an opening in the wall for bringing in and taking out the paddy, and to erect a temporary shed for keeping the Daddy on condition that while vacating the land he would dismantle the same.
The deed specifically provided that the appellant "should not.erect any kind of permanent super.structures on the said vacant site so as to entitle him to claim in future the value thereof," except such facilities as were necessary for drying Daddy at his own expense.
In contravention of this stipulation and without any authority from the respondent, the appellant erected permanent super structures on the land.
On the expiry of the lease the appellant refused to vacate the land.
On March 12, 1959 the respondent filed a suit for his eviction.
The appellant c1aimed protection under the Madras City Tenants, Protection Act.
1921 (Act III off 1922).
Before filing his written statement on February 15, 1960.
he filed an application under sec.
9 of the Act asking for an order that the respondent be directed to sell the land for a price to be fixed by the Court.
The trial Court decreed the suit on August 25, 1960.
The first appellate Court reversed the decree and dismissed the suit.
The High Court on second appeal restored the decree of the trial Court.
The present appeal has been filed after obtaining special leave.
The Courts below concurrently found that the appellant had constructed permanent super structures on the vacant land after November 21, 1952 without any authority from the respondent and in contravention of the stipulation in the registered lease.
This finding is not challenged before us.
In view of the fact that the construction was in contravention of the stipulation in the lease, the Trial Court and the High Court held that the appellant was not entitled to the protection of section 9 of the Act; but the first appellate Court held ' that the appellant was nevertheless entitled to such protection.
The Trial Court and the High Court held that the vacant site in the backyard being appurtenant to a house was building and not land, and the appellant not being a tenant of land was not protected by the Act; but the first appellate Court held that the vacant site was land and the tenancy was within the purview of the Act.
The appellant challenges the findings of the High Court on both points.
The following two questions arise for determination in this appeal.
(1) Is the tenant of a vacant site in the backward of a residential house a tenant of land within the purview of the Madras City Tenants ' Protection Act, 1921 ? (2) Having regard to the proviso to sec.
12 is such a tenant entitled to the protection sections 3 and 9 of the Act in a case where he has erected buildings on the land in contravention of an express stipulated in a registered lease ? 161 To appreciate the points arising in this case it is necessary to refer to the relevant provisions of the Madras City Tenants Protection Act, 1921.
The Act was passed with a view to give protection to tenants who in certain areas had constructed buildings on others ' lands in the hope that they would not be evicted so long as they paid fair rent for the land.
The Act was amended from time to time.
It extends to the city of Madras and other notified areas and applies only to tenancies of land created before certain specified dates.
(section 1).
It is common case before us that the Act extends to the area where the disputed land is situated.
Section 2 is the definition section.
"Building" is defined in section 2( 1 ) to include any building, hut or other structure whether of masonry, bricks, wood, metal or any other material whatsoever used (i) for residential or non residential purposes in certain specified areas and (ii) for residential purposes only, in any other area and includes the appurtenances thereto.
It may be mentioned that ."building" was not defined to include the appurtenances thereto in any area under see.
2( 1 ) before its amendment on July 27, 1960 by Madras Act III of 1960.
"Land" does not include buildings, Is. 2(2)].
"Landlord" means any person owning any land, Is.
2(3)].
"Tenant" in relation to any land means a person liable to pay rent in respect of such land under a tenancy express or implied and includes any such person who continues in possession of the land after the determination of the tenancy agreement, Is. 2( 4)].
Section 3 provides that every tenant shall on ejectment be entitled to be paid as compensation the value of any building which may have been erected by him and for which compensation has not already been paid.
Section 9 ( 1 ) provides that a tenant who is entitled to compensation under sec.
3 and against whom a suit in ejectment has been instituted may within the prescribed time apply to the Court for an order that the landlord should be directed to sell the whole or part of the land for a price .to be fixed by the Court.
Section 10 provides that sec.
9 shall apply to suits in ejectment which are pending before certain specified dates.
Section 11 requires 3 months notice in writing before the institution of a suit in ejectment against a tenant.
Section 12 provides that "nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract.
" Section 13 provides that in its application to the city of Madras and to other notified areas the Transfer of Property Act shall to the extent necessary to give effect to the provisions of ' the Act be deemed to have been repealed or modified.
The first question is whether the appellant is a tenant of land as contemplated by the Madras City Tenants Protection Act, 1921.
162 Before the execution of the lease deed dated November 21, 1952 the land in the backyard was occupied with and was appurtenant to the residential house at.
No. 8, Brahmin Street.
It may be conceded that if the respondent had let the residential building together with its appurtenant land, the tenancy would not be a tenancy of land within the purview of the Act.
But the respondent did not let the building with the land appurtenant thereto.
He retained the building and let the land separately.
The letting was of land and nothing else.
The appellant is not a tenant of a building as defined in sec.
2( 1 ) either before or after its amendment by Madras Act XIII of 1960.
He is a tenant of land as defined in section 2(2).
The High Court was in error in holding that he was a tenant of building.
The next question is whether having regard to the proviso to see.
12, the appellant is entitled to the benefits of sees.
3 and 9 in view of the fact that he constructed buildings in contravention of the express stipulation in the registered lease.
Under sec.
3 a tenant on ejectment is entitled to be paid as compensation the value of any building erected by him.
A tenant entitled to compensation under sec.
3 and against whom a suit for ejectment has been instituted is entitled to purchase the whole or part of the land by invoking the procedure under sec.
The effect of the main part of sec.
12 is that nothing in any contract made by a tenant takes away or limits his rights under sees.
3 and 9.
The proviso to sec.
12 saves stipulations as to the erection of buildings made by a tenant in a registered writing.
But a stipulation as to the erection of buildings made orally or in an unregistered writing is not protected by the proviso and a tenant erecting a building in breach of the covenant is entitled to the benefits of sees.
3 and 9.
In R.V. Naidu vs Naraindas(1) a piece of vacant land was let under an unregistered instrument of lease which provided that the tenants would not raise any building in the vacant site.
The tenants erected a building on the land in breach of the covenant.
This Court held reversing the decision of the High Court in Naraindas vs V. Naidu(2) that the tenants against whom a suit for ejectment had been instituted was entitled to the benefits of sees.
3 and 9.
The Court pointed out that as the covenant not to build was contained in an unregistered lease.
the proviso to sec.
12 had no application and the landlord could not rely on the covenant.
In the present case a registered lease contains a stipulation by the tenant that he would not build any permanent structure on the land so as to entitle him to claim in future the value thereof.
The point in issue is whether this is a stipulation as to the erection building within the proviso to see.
In Vajrapuri vs New [1966] I S.C.R. 1107 (2) [1963] 1 M.L.J. 140, 163 Theatres Carnatic Talkies Ltd.(1) the tenants obtained a lease of land for constructing a building suitable for use as a theatre.
The registered lease deed provided that on the expiry of the lease the tenants would surrender possession of the land after dismantling and removing the building constructed by him. 'The Madras High Court held that this stipulation was not one as to the erection of buildings and was not protected by the proviso to sec.
12 and that the tenants against whom a suit for ejectment had been instituted could claim the protection of sees.
3 and 9.
Ganapatia Pillai J. observed: "In our opinion, the application of the Proviso should be limited to those cases where the stipulations in the contract relate to erection of the building, such as the size of the building, the cost of the building and the design of the building or other cognate matters." He added : "We are not concerned here with a case of erection of buildings contrary to the stipulations contained in the written contract, to which the tenant was a party.
How far, in such a case, the tenant would be protected from foregoing his rights under the impugned Act does not arise for our consideration. " This decision was affirmed by this Court by a majority.
decision in Vajrapani Naidu vs New Theatre Carnatic Talkies(a).
Shah J. speaking for the majority said at pp.
1022 23 : "A covenant in a lease which is duly registered that the tenant shall on expiry of the lease remove the building constructed by him and deliver vacant possession, is undoubtedly a stipulation relating to the building, but it is not a stipulation as to the erection of building .
Having regard to the object of the Act, and the language used by the legislature, the exception must be strictly construed, and a stipulation as to the erection of buildings would not, according to the ordinary meaning of the words used, encompass a stipulation to vacate and deliver possession of the land on the expiry of the lease without claiming to enforce the statutory rights conferred upon the tenant by section 9.
The stipulations not protected in section 12 are only those in writing registered and relate to erection of buildings such as restrictions about the size and nature of the building constructed, the building materials to be used ' therein and the purpose for which the building is to be utilised." (1) 477 8.
(2) ; 164 The minority was of the opinion that the stipulation was protected by the proviso to sec.
Ayyangar 1.
speaking for the minority said at p. 1032 : "If a stipulation forbidding erection of buildings and requiting their removal before surrendering possession of the site is conceded to.
be one in respect of erection of building as has to be conceded it is not possible to accept the construction that stipulation for the removal of buildings which the lessee is permitted to erect and keep in the site only for the duration of the tenancy is any the less one in respect of erection of buildings." Having regard to this decision it must be held that a stipulation for giving vacant possession of the land after demolition of the building which the tenant has been authorised to construct thereon is not one as to the erection of buildings within the proviso to section 12.
In the present ease the registered lease deed authorised the appellant to erect a temporary shed on condition that while vacating the land he would dismantle the same.
The stipulation for vacating the land after dismantling the temporary shed is not protected by the proviso to section 12.
Had the appellant constructed a temporary shed he could in spite of the stipulation claim the protection of sections 3 and 9.
In the present case, the registered lease deed also contained an express stipulation that the appellant would not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof.
This stipulation is dearly one as to the erection of buildings.
In common parlance a stipulation forbidding erection of building is understood to be one in respect of the erection of building.
The popular meaning furnishes the key to the interpretation of the proviso to sec.
If a stipulation concerning the size and .nature of the building to be erected on the land ' is one as to the erection of buildings, a fortiori a stipulation forbidding the erection of buildings of a particular kind altogether is one as to the erection of buildings within the proviso to sec.
In contravention of the stipulation, as to the erection of buildings, in the registered lease deed the appellant erected permanent structures on the land after the date of the lease.
The question is whether the appellant is entitled to compensation for the structures under see.
3 and to the benefits of see.
The effect of the proviso to see.
12 is that nothing in the Act affects the stipulation Sections 3 and 9 are subject to and controlled by the proviso to see.
Section 3 provides that a tenant shall on ejectment be entitled to be paid as compensation the value of any building erected by him.
The right conferred on the tenant by see.
3 is 165 controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof.
The stipulation overrides the tenant 's rights under section 3.
If the tenant erects a permanent structure in contravention of the stipulation he is not entitled to any compensation under sec.
As he is not entitled to any compensation under sec.
3 he cannot claim the benefit of sec.
The High Court rightly held that the appellant was not entitled to the protection of Sec. 9.
In the result, the appeal is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondent, by a registered lease deed, let to the appellant for a period of five years the backyard of a residential house in Madras.
The backyard consisted of vacant land.
According to the lease deed the appellant was allowed inter alia to boil and dry paddy on the said land and he was also allowed to erect a temporary shed for keeping the paddy on condition that while vacating the land he would dismantle the same.
The deed also specifically provided that the appellant "should not erect any kind of permanent super structure on the said vacant site so as to entitle him to claim in future the value thereof." In continuation of his stipulation the appellant erected permanent super structures on the land.
On the expiry of the lease of the appellant refused to vacate the land.
The respondent thereupon filed a suit for his eviction.
The appellant claimed protection under the Madras City Tenants ' Protection Act, 1921, Within the prescribed time he flied an application under section 9 of the Act asking for an order that the respondent be directed to sell the land for a price to be fixed by the court.
The trial court decreed the respondent 's suit.
The first appellate court reversed the decree of the trial court but the High Court restored it.
In appeal by special leave to this Court the questions that fell for determination were: (i) Is the tenant of a vacant site in the backyard of a residential house a tenant of land within the purview of section 2(2) of the Madras City Tenants ' Protection Act, 1921 ? (ii) Having regard to the proviso to section 12 is such a tenant entitled to the protection of sections 3 and 9 of the Act in a case when he has erected buildings on the land in contravention of an express stipulated in a registered deed ? HELD: (i) If the respondent had let the residential building together with its appurtenant land the tenancy would not be a tenancy of land within the meaning of the Act.
But the respondent did not let the building with land appurtenant thereto.
He retained the building and let the land separately.
The letting was of land and nothing else.
The appellant was not a tenant of a building as defined in section 2(1) either before or after its amendment by Madras Act XIII of 1960.
He was a tenant of land as defined in section 2(2).
[162 A C] (ii) (a) Under section 3 a tenant on ejectment is entitled to he paid as compensation the value of any building erected by him.
A tenant entitled to compensation under section 3 and against whom a suit for ejectment has been instituted is entitled to purchase the whole or part of the land by invoking the procedure under section 9.
The effect of the main part of section 12 is that nothing in any contract made by a tenant takes away or limits his rights under sections 3 and 9.
The proviso to 159 however, saves stipulations as to erections of buildings made by a tenant in a registered writing.
[162 D E] (b) A stipulation as to the erection of buildings made orally or in an unregistered writing is not protected by the proviso and a tenant erecting a building in breach of the covenant is entitled to the benefits of as. 3 and 9.
[162 E F] R.V. Naidu vs Naraindas, [1966] 1 S.C.R. 110 and Naraindas vs Naidu, referred to.
(c) A stipulation for giving vacant land after demolition of the building which the tenant has been authorised to construct thereon is not one as to the erection of buildings within the proviso to section 12.
Therefore in the present case the stipulation that the appellant could erect a temporary shed on condition that while vacating the land he would dismantle the same was not protected by the proviso to section 12.
[164 C D] Vajrapani Naidu vs New Theatre Carnatic Talkies, ; , relied on.
Vajrapuri vs New Theatres Carnatic Talkies, , 477 8, referred to.
(d) But in the present case the lease deed also contained an express stipulation that the appellant would not erect permanent structures of any kind so as to entitle him to claim the future value thereof.
This stipulation was clearly one as to the erection of buildings.
[164 E] In contravention of the stipulation as to the erection of buildings in the registered deed the appellant erected permanent structures on the land after the date of the lease.
The effect of the proviso to section 12 is that nothing in the Act affects the stipulation.
Sections 3 and 9 are subject to and controlled by section 12.
The stipulation overrides the tenant 's right under section 3.
If the tenant erects a permanent structure in contravention of the stipulation he is not entitled to any compensation under section 3.
As he is not entitled to any compensation under section 3 he cannot claim the benefit of section 9.
The High Court rightly held that the appellant was not entitled to the benefit of section 9.
[164 C 165 B]


judgement:
No. 118 of 1968.
Petition under article 32 of the Constitution of India for enforcement of the fundamental rights.
B. Datta, for the petitioner.
C.K. Daphtary, Attorney General, B.D. Sharma and R.H. Dhebar, for respondents Nos. 1 to 5.
The Judgment of the Court was delivered by Ramaswami, J.
In this case the petitioner has obtained a rule from tiffs Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued under Art 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66 67/AA of 1965 from the Judge Advocate General (Army branch), Army Headquarters whereby the petitioner was found guilty of charges under section 304 and section 149 of the Indian Penal Code and sentenced to a period of 6 years rigorous imprisonment and cashiering.
Cause has been shown by the Attorney General on behalf of the Union of India and other respondents to whom notice of the rule was ordered to be given.
The petitioner was commissioned in the Indian Army in February, 1964 and was posted as Second Lt.
(E.C. 55461) and was attached to 397 Engineering Construction Equipment Company in December, 1964.
In August, 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company.
It appears that Wednesday, September 1, 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports, entertainment and Bara Khana (evening dinner) were to be arranged.
In this celebration, all officers and other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit.
At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum.
But it is alleged that the Purbias were not given an opportunity to put up their show and were not given free a bottle of rum.
They were consequently aggrieved for this reason.
The variety entertainment concluded at about 1900 hours at the end of which rum was issued to the jawans.
The bara khana was to commence at 2000 hours.
As there was a delay in the assembly of the men at the dining hall, Maj.
Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly.
The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the men.
Some of the Purbias including the deceased Spr.
Bishwanath Singh protested 180 against the use of such language.
Though the petitioner expressed regret, the men were not satisfied.
A few of the Sikh jawans, including some of the accused, sided with the petitioner and there was a heated argument between the two groups on their way to the dining hall.
The bara khana was served in two sittings.
The petitioner did not join the first sitting but joined the second sitting which consisted of about 30 to 40 men.
The quarrel which started between the two groups earlier was continued in the dining hall.
The lights went off for a few minutes and when the lights came on, it was observed that a scuffle was going on in the middle of the hall between the petitioner and other Sikh jawans and the deceased.
As the scuffle progressed, the deceased was surrounded by petitioner No. 1 and the other accused persons and the group moved towards the service counter.
The lights went off for a second time.
In the darkness tables, benches and plates were hurled about.
Most of the men ran out of the dining hall.
It is alleged that accused No. 6 was seen stabbing with a knife Spr.
Bishwanath Singh and the latter slumped to the ground.
Accused No. 3 hit him with a soot rake.
When the lights came on after a few minutes, the petitioner and the other accused were found standing near the place where Spr.
Bishwanath Singh had fallen.
Consequently, Maj. Agarwal arrived at the scene and took Spr.
Bishwanath Singh to.
the MI room where he was found dead by Maj.
Koley, the Medical Officer.
It appears that on September 2, 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt. F.D.A. Jesudian.
A case under section 302, Indian Penal Code was registered as crime No. 726/1965 at Pallavaran Police Station, Madras.
Sri Bashyam, Inspector of Police reached the place of occurrence at 0430 hours on the same date.
He inspected the dining hall and seized certain exhibits produced by Maj. Agarwal.
He also held inquest on the deadbody of Spr.
Bishwanath Singh and sent the dead body for postmortem examination to.
the mortuary, Madras General Hospital through Police Constable No. 1407, Ratnam.
He sent the exhibits seized to the State Forensic Science Laboratory, Madras for chemical examination.
At 1330 hours on the same date Sri Bashyam stopped further investigations as Lt. Col. Bajpai wanted the case to be handled by the Military authorities.
On September 2, 1965, a Court of Enquiry_ under the provisions of Ch.
of the Army Rules was ordered by the Commander, Mysore and Kerala Sub Area.
After the Court of Inquiry had concluded the proceedings, a Court Martial was constituted by an order, dated August 11, 1966 by Major General.
S.J. Sathe, General Officer Commanding, Madras, Mysore and Kerala area to try the petitioner and other accused persons.
The Court Martial assembled on August 18, 1966 and conducted its proceedings on several subsequent dates.
In support of the case of the prosecu 181 tion 30 witnesses were examined.
At the Court Martial, the defended by an Advocate of the Madras High Court, petitioner was Sri Natarajan and he was also as by assisted a friend of the accused Major T.B. Narayanan.
At the trial the Counsel for the petitioner cross examined the witnesses for the prosecution and after the prosecution evidence was concluded, the petitioner said that he did not intend to call any defence witnesses.
The petitioner, how ever, submitted a written statement.
He was also put various questions by the Court Martial to which he replied.
After the Counsel for the defence was heard and after the Judge Advocate summed up the case, the Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder and that he was a member of an unlawful assembly and the petitioner was sentenced to cashiering and 6 years rigorous imprisonment.
Against the decision of the Court Martial the petitioner field a petition under section 164 of the Army Act but the petition was dismissed by the confirming authority and the finding and sentence by the Court Martial was confirmed so far as the petitioner was concerned.
The petitioner thereafter filed an appeal under section 165 of the Army Act to the Central Government but the appeal was dismissed.
The first question to be considered in this case is whether the Court Martial had jurisdiction to try and convict the petitioner of the offences under sections 304 and 149, Indian Penal Code.
It was contended by Mr. Dutta on behalf of the petitioner that the Court Martial had no jurisdiction having regard to the mandatory provisions contained in section 125 of the Army Act and having also regard to the fact that Maj.
Agarwal had, in the first instance, decided to hand over the matter for investigations to the Civil Police.
In order to test whether this argument is valid it is necessary to scrutinize the provisions of the Army Act in some detail.
Section 2 of the (Act 46 of 1950), hereinafter called the ' ', describes the different categories of army personnel who are subject to the .
Section 3 (ii) defines a "civil offence" to mean "an offence which is triable by a criminal court"; section 3(vii) defines a "court martial" to mean "a court" to mean "a court of ordinary criminal justice in any part of India other that the state of Jammu and Kashmir" ; section 3(xvii) defines "offence" to mean "any act or omission punishable under this act and includes a civil offence"; and section 3 (xxv) declares that "all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that code.
" chapter is "Offences".
As we have already noticed, the word "offence" is defined to mean not only any act or omission punishable under the , but also a 182 civil offence.
Sections 34 to 68 define the offences against the Act triable by court martial and also indicate the punishments for the said offences.
Section 69 states as follows: "69.
Subject to the provisions of sect.ion 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court martial and, on conviction, be punishable as follows, that is to say, (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
" Section 70 provides: "A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court martial, unless he commits any of the said offences (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf.
Explanation.
In this section and in section 69, "India" does not include the State of Jammu and Kashmir.
" Shortly stated , under this Chapter there are three categories of offences, namely, (1 ) offences committed by a person subject to the Act triable by a court martial in respect whereof specific punishments have been assigned; (2) civil offences committed by the said person at any place in or beyond India, but deemed to 183 be offences committed under the Act and, if charged under section 69 of the Act, triable by a court martial; and (3) offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law.
Subject to a few exceptions, they are not triable by court martial, but are triable only by ordinary criminal courts.
The legal position therefore is that when an offence is for the first time created by the , such as those created by sections 34, 35, 36, 37 etc., it would be exclusively triable by a court martial; but where a civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence.
Such a situation is visualized and provision is made for resolving the conflict under sections 125 and 126 of the which state: "125.
When a criminal court and a court martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in military custody.
(1 ) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final.
" Section 125 presupposes that in respect of an offence both a criminal court as well as a court martial have each concurrent jurisdiction.
Such a situation can arise in a case of an act or omission punishable both under the aS well as under any law in force in India.
It may also arise in the case of an offence deemed to be an offence under the .
Under the scheme of the two sections, in the first instance, it is left to the 184 discretion of the officer mentioned in section 125 to decide before which court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a court martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, it may issue the requisite notice under section 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government.
On receipt of the said requisition, the officer may either deliver .over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final.
These two sections of the provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation in any particular case.
In the present case, we are unable to accept the contention of the petitioner that merely because Maj. Agarwal had directed that the First Information Report should be lodged with the Civil Police through Second Lt. Jesudian, it means that the competent authority under section 125 of the had exercised its discretion and decided that the proceedings should be instituted before the criminal court.
The reason is that Maj. Agarwal was not the competent authority under section 125 of the to exercise the choice under that section.
The competent authority was the General Officer Commanding, Madras, Mysore and Kerala Area and that authority had decided on September 2, 1965 that the matter should be tried by a Court Martial and not by the Criminal Court.
On the same date, the General Officer Commanding, Madras, Mysore & Kerala Area had ordered the constitution of the Court Martial under Ch.
VI of the Army Rules to investigate into the case of the petitioner and the other accused persons.
There was admittedly No. direction by the Commander of that area to hand over the proceedings to the Criminal Court.
It is true that Maj.
Agarwal had directed a report to be lodged with the Civil Police at 4.00 a.m. on September 2, 1965.
It is also true that Sri Bashyam, Inspector of Police had inspected the place of occurrence, seized certain exhibits and held inquest of the deadbody of Spr.
Bishwanath Singh.
Sri Bashyam has admitted that he stopped investigations on the same date as directed by the military authorities.
Merely because Sri Bashyam conducted the inquest of the dead body of Spr.
Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a decision of the competent military authority under section 125 of the for handing over the inquiry to the Criminal Court.
On the other hand, the action of the General Officer Commanding in constituting the Court of 185 Inquiry on September 2, 1965 indicates that there was a decision taken under section 125 of the that the proceedings should be instituted before the Court Martial.
The second branch of the argument of the petitioner is based upon section 549 of the Criminal Procedure Code which states: "(1) The Central Government may make rules consistent with this Code and the , the Naval Discipline Act and the Indian Navy (Discipline) Act, 1934, and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which this Code applies, or by Court martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable, to be tried either by a Court to which this code applies or by a Court martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps, ship or detachment, to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court martial.
The Central Government has made rules in exercise of powers conferred on it under this section.
The Rules were published at p. 690 in section 3 of Part H of the Gazette of India, dated April 26, 1962, under Ministry of Home Affairs, S.R.O. 709, dated April 17, 1962.
Rules 3, 4, 5 and 8 are to the following effect: "3.
Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court martial, such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for 'any offence friable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force authority, or (b) he is moved thereto by such authority.
Before proceeding under clause (a) of rule 3 the Magistrate shall give written notice to the Com Sup C1/69 13 186 manding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not (a) convict or acquit the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his defence under section 244 of the said Code; or (b) frame in writing a charge against the accused under section 254 of the said Code; or (c) make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code." "5.
Where within the period of seven days mentioned in rule 4, or at any time thereafter before the Magistrate has done any act or issued any order referred to in that rule, the Commanding Officer of the accused or competent military, naval or Air Force authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a court martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him, with the statement prescribed in sub section (1) of section 549 of the said Code to the authority specified in the said sub section." "8.
Notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that a person subject to military, naval or Air Force law has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured unless through military, naval or Air Force authorities, the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the court martial, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.
" It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court Martial and hence the criminal court alone had jurisdiction under Rule 3 to conduct proceedings against the petitioner for the offences charged.
In our opinion, the argument on behalf of the petitioner 187 is mis conceived.
The rules framed by the Central Government under section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted.
it is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court Martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that rule are therefore not attracted.
It was pointed out by Mr. Dutta that after the First Information Report was lodged at Pallavaran police station a copy thereof should have been sent to the Magistrate.
But that does not mean that the petitioner "was brought before the Magistrate and charged with the offences" within the meaning of Rule 3.
It is manifest that Rule 3 ,only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge sheet.
The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to.
military, naval or air force law.
With regard to the holding of the inquest of the dead body of Spr.
Bishwanath Singh it was pointed out by the Attorney General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under section 174, Criminal Procedure Code to the Civil authorities, and the conduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation.
For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case.
We proceed to consider the next argument presented on behalf of the petitioner, namely, that even if the Military Court Martial had jurisdiction, it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was .altered and amended in accordance with sub rule 2 of Rule 50 of the Army Rules, 1954.
It was also contended on behalf of the petitioner that the procedure contemplated by Rule 121(4) of the Army Rules was not followed by the Court Martial and the finding of the Court Martial must therefore be held to be defective.
In our opinion, there is no warrant or justification for this argument since rules 50(2) and 121 (4) have no application to the present case.
Rules 50 and 121 provide as follows: "50.
Amendment of charge. ( 1 ) At any time during the trial, if it appears to the court that there is 188 any mistake in the name or description of the accused in the charge sheet, the court may amend the chargesheet so as to correct that mistake.
(2) If, on the trial of any charge, it appears to the court at any time before it has begun to examine the witnesses, that in the interests of justice any addition to, commission from, or alteration in, the charge is required, it may report its opinion to the convening authority, and may adjourn, and the convening authority may either direct the new trial to be commenced, or amend the charge, and order the trial to proceed with such amended charge after due notice to the accused." "121.
Form and record of finding. (1) The finding on every charge upon which the accused is arraigned shall be recorded, and except as mentioned in these rules, such finding shall be recorded simply as a finding of "Guilty" or of "Not guilty".
(2) When the court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court shall acquit the accused of that charge.
(3) When the court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of "Not guilty" record a special finding.
(4) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein.
(5) The court shall not find the accused guilty on more than one of two or more charges laid down in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges.
" In the present ease there was no necessity for amending the charge by the Court Martial under Rule 50(2) because that subrule only relates to an alteration of charge before the examination of witnesses.
The Court Martial has also not contravened the provisions of Rule 121 (4) because that sub rule is not attracted to the present ease.
On the contrary, the finding of the Court 189 Martial is justified in view of the language of section 139(6) of the which states : "139.
(6) A person .charged before a court martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure., 1898, were applicable.
" We accordingly reject the argument of learned Counsel for the petitioner on this part of the case.
Finally it was contended on behalf of the petitioner that the order of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the was illegal since no reason has been given in support of the order by the Chief of the Army Staff.
It was also pointed out that the Central Government has also not given any reasons while dismissing the appeal of the petitioner under section 165 of the and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the. grant of a writ in the nature of certiorari.
In this context it is necessary to reproduce sections 164 and 165 of the which are to the following effect: "164.
(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such order thereon as it or he thinks fit." "165.
The Central Government, the Chief of the Army Staff or any prescribed officer may annul the proceedings of any court martial on the ground that they are illegal or unjust.
" In contrast to these sections, section 162 of the expressly provides that the Chief of the Army Staff "for reasons based on 190 the merits of the case" set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.
Section 162 reads as follows: "The proceedings of every summary court martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held, or to the prescribed officer; and such officer, or the Chief of the Army Staff, or any officer empowered in this behalf by the Chief of the Army Staff, may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.
" It is necessary in this context to refer to Rules 61 and 62 of the Army Rules which prescribe the standard form of recording the opinion of the Court Martial on each charge and of announcement of that finding.
These rules omit all mention of the evidence or the reasoning by which the finding is reached by the Court Martial.
Rules 61 and 62 are to the following effect: 61.
Consideration of finding. (1) The court shall deliberate on its finding in closed court in the presence of the judge advocates.
(2) The opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately.
Form, record and announcement of finding. (1) The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of 'Guilty ' or of 'Not guilty '.
(10) The finding on each charge shall be announced forthwith in open court as subject to confirmation.
" In the present case it is manifest that there is no express obligation imposed by section 164 or by section 165 of the on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial.
Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority.
Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is 191 any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case.
In Rex vs Northumberland Compensation Appeal Tribunal(1) it was decided for.the first time by the Court of Appeal that if there was a "speaking order" a writ of certiorari could be granted to quash the decision of an inferior court or a statutory tribunal on the ground of error on the face of record.
In that case, Denning, L.J. pointed out that the record must at least contain the document which initiates the proceedings; the pleadings, if any; and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them in its decision.
It was observed that if the tribunal did state its reasons and those reasons were wrong in law, a writ of certiorari might be granted by the High Court for quashing the decision.
In that case the statutory tribunal under the National Health Service Act, 1946 had fortunately given a reasoned decision; in other words, made a 'speaking order ' and the High Court could hold that there was an error of law on the face of the record and a writ of certiorari may be granted for quashing it.
But the decision in this case led to an anomalous result, for it meant that the opportunity for certiorari depended on whether or not the statutory tribunal chose to give reasons for its decision; in other words, to make a 'speaking order '.
Not all tribunals, by any means, were prepared to do so, and a superior court had no power to compel them to give reasons except when the statute required it.
This incongruity was remedied by the Tribunals and Inquiries Act, 1958 (section 12), [6 & 7 Elizabeth 2 c. 66], which provides that on request a subordinate authority must supply to .a party genuinely interested the reasons for its decision.
Section 12 of the Act states that when a tribunal mentioned in the First Schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision, if requested to do so on or before the giving or notification of the decision.
The statement may be refused or the specification of reasons restricted on grounds of national security, and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interests of any person primarily concerned.
Tribunals may also be exempted by the Lord Chancellor from the duty to give reasons but the Council on Tribunals must be consulted on any proposal to do so.
As already stated, there is no express obligation imposed in the present case either by section 164 or by section 165 of the Indian on the confirming (1) ; 192 authority or on the Central Government to give reasons for its decision.
We have also not been shown any other section of the Army.
Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority.
We, therefore, reject the argument of the petitioner that the order of the Chief of the Army Staff, dated May 26, 1967 confirming the finding of the Court Martial under section 164 of the or the order of the Central Government dismissing the appeal under section 165 of the are in any way defective in law.
For the reasons expressed we hold that the petitioner has made out no case for the grant of a writ under article 32 of the Constitution.
The application accordingly fails and is dismissed.
R.K.P.S. Petition dismissed.

summary/full:
The petitioner, a Second Lieutenant in the army, was involved in a quarrel between two groups of soldiers on September 1, 1965 which led to an altercation and the stabbing and death of a soldier.
On September 2, 1965, the matter was reported to the Civil Police at the local police station.
The Inspector o.f Police inspected the place: of occurrence on the same day, seized certain exhibits produced by an Army Officer, held an inquest on the dead body of the deceased soldier and sent it for postmortem examination through a police constable.
Later on the same day, he stopped further investigation as the Army Officer incharge wanted the case to be handled by the Military authorities.
On September 2, 1965, a Court of Inquiry under the provisions of Ch.
VI of the Army Rules was ordered by the Commander for the area.
After the Court of Inquiry had concluded its proceedings, a Court Martial was constituted by an order dated August 11.
1966, by the General Officer Commanding for the area to try the petitioner and other accused persons.
The Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder, and that he was a member of an unlawful assembly; it sentenced him to cashiering and six years rigorous imprisonment.
The petitioner filed a petition under section 164 of the Army Act, but this was dismissed by the confirming authority and the finding and sentence of the Court Material was confirmed.
The petitioner 's appeal under section 165 of the Army Act to the Central Government was also dismissed.
In the present petition under Article 32 of the Constitution, the petitioner sought a writ of certiorari to quash the proceedings of the Court MartiaL It was contended on his behalf (i) that the Court Martial had no jurisdiction to try and convict him of offences under sections 304 'and 149 I.P.C. having regard to the mandatory provisions of section 125 of the Army Act and having also regard to the fact that the Army Officer incharge had in the first instance decided to hand over the.
matter for investigation to the Civil Police; (ii) that no notice was given by the Commanding Officer to the Magistrate under Rule 5 of the Rules framed by the Central Government under section 549 of the Criminal Procedure Code, that the petitioner should be tried by a Court Martial; the Criminal Court alone 178 therefore had jurisdiction under Rule 3 to try the petitioner for the offence charged; (iii) that even if the Court Martial had jurisdiction, it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was altered and amended in accordance with sub rule 2 of Rule 50 of the Army Rules, 1954; the procedure contemplated by Rule 121(4) 'of the Army Rules was not followed by the Court Martial and its finding must therefore be held to be defective; and (iv) that the orders of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the Army Act and of the Central Government dismissing the petitioners appeal under section 165 were illegal since no reasons had been given in support of the decisions contained in them.
HELD: Dismissing the petition: (i) Merely because the First Information Report was lodged with the civil police on September 2 and the Inspector of Police inspected the place of occurrence, seized certain exhibits and held an inquest on the body of the deceased, it could not reasonably be said that there was a decision of the competent military authority under section 125 of the Army Act to hand over the inquiry to the criminal court.
On the other hand the action of the General Officer Commanding the area, who was the competent authority under section 125 constituting the Court of Inquiry on September 2, 1965 indicates that there was a decision taken under section 125 that the proceedings should be instituted before the Court Martial.
[184 H] (ii) Rule 3 of the Rules framed by the Central Government under section 549 Criminal P.C. only applies to a case where the police has completed the investigation and the accused is brought before the Magistrate after submission of a charage sheet.
The provisions of Rule 3 cannot be invoked in the present case where the police had merely started investigation against a person subject to military law.
The situation contemplated by Rule 5 had not arisen and the requirements of that rule were not attracted.
Furthermore, Regulation 527 of the Defence Services Regulations itself provides that in cases of unnatural death, information should be given under section 174 Criminal Procedure Code to the civil authorities.
The action of the Army Officer in sending information to the civil police was merely in accordance with the provisions of this particular Regulation.
[187 D] (iii) There Was no necessity for amending the charge by the Court Martial under Rule 50(2) because that sub rule only relates to an alteration of charge before the examination of witnesses.
The Court Martial had also not contravened the provisions of Rule 121(4) because that sub rule was not attracted in the present case.
On the contrary, the finding of the Court Martial was justified in view of the language of section 139(6) of the Army Act.
[188 H] (iv) There is no express obligation imposed by section 164 or by section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial.
No other Section of the Act or any Rule had been shown from which a necessary implication could be drawn that such a duty is cast upon the Central Government or upon the confirming authority.
Furthermore, there was no force in the contention that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
[190 H; 192 A B] 179 Rex.
vs Northumberland Compensation Appeal Tribunal, ; , considered.