judgement:
N: Criminal Appeal No . 579 of 1986 From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl.
R. Appln.
No. 160 of 1985.
Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.
V.N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The appellant No. 1 Bakulabai filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock.
She claimed maintenance both for herself and for her son.
Ganga Ram denied the marriage as well as the paternity of the appellant No. 2.
He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living.
The Judicial Magistrate accepted Bakulabai 's case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy.
Ganga Ram moved the Sessions Judge in revision.
Bakulabai also filed a revision application for enhancement of the rate of maintenance.
The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together.
The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance.
Revision case No. 83 of 1984 was thus allowed and the wife 's application was dismissed.
Bakulabai challenged the order before the Bombay High Court by a revision application.
By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of section 397(3) of the Code.
The Court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge.
The appellants have now come to this Court by special leave.
On the maintainability of the revision application before it, the High Court took an erroneous view.
The provisions of sub section (3) of section 397 relied upon, are in the following terms: "(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
" The main judgment of the Judicial Magistrate upholding the appellants ' claim for maintenance was in her favour and there was no question of her challenging the same.
Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her.
Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court.
The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court.
She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court.
The fact that she had moved before the Sessions Judge against the quantum of maintenance 791 could not be used against her in respect of her right of revision against the Sessions Judge 's order.
Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable.
Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants ' case.
He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union.
On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding.
According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969.
It was, therefore, argued on his behalf that as he had two living spouses in 1972, he could not have lawfully married a third time in view of the provisions of the .
The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive.
Dealing with the effect of the first marriage he held that it was not as fact proved.
Thus he got rid of the effect of both the marriages by adopting a queer logic.
If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground.
The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal.
We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt.
Yamunabai vs Anantrao Shivram Adhav and another) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the , is null and void and the woman is not entitled to maintenance under section 125 of the Code.
Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard.
It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant 's marriage took place.
The position which emerges, therefore, is that either the respondent 's first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellant 's marriage also was rendered null and void on that very ground; or if, on the other 792 hand, the respondent 's case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void on either hypothesis the appellant 's claim is not covered by section 125 of the Code.
She cannot, therefore, be granted any relief in the present preceedings.
The decision to that effect of the High Court is, R therefore, confirmed.
The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision.
No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate.
(See Pathumma and another vs Mahammad; , Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child.
If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of section 16(1) of the , which reads as follows: "16(1).
Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
" Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of section 125(1) of the Code specifically referring to an illegitimate child.
We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed.
The amount of Rs.50 per month was allowed as the mainte 793 nance of the child in 1984.
The revision application filed before the Sessions Judge was rejected.
A second application before the High Court was, therefore, not maintainable.
We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final.
However, on account of change of circumstances, this amount can be revised after efflux of time.
During the last four years the value of money has gone down due to inflation.
The child has also grown in age.
In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988.
The arrears up to January, 1988, if not paid, should also be paid promptly.
The appeal is allowed in the terms mentioned above.
G.N. Appeal allowed.
G.N. Appeal allowed.

summary/full:
% The appellant filed an application under Section 125 Cr.
P.C. before the Judicial Magistrate, claiming maintenance for herself and her son, alleging lawful marriage with the respondent, and that the son was born out of the wedlock.
Respondent, however, denied the marriage and paternity of her son.
He claimed that he was already married twice and both his wives were alive.
The Judicial Magistrate accepted the appellant 's case and granted maintenance at the rate of 100 per month in her favour and Rs.50 per month for her minor son.
The Judicial Magistrate held that appellant No. t and respondent lived together in the same house as husband and wife for a considerable period, and appellant No. 2 was born out of this union.
He did not record a categorical finding as to whether the respondent was already married and his wife or wives were alive on the date of his marriage with appellant No. t. A revision application was filed by the appellant for enhancement of the rate of maintenance.
The respondent also moved the Sessions Judge in revision.
The Sessions Judge reversed the findings of the judicial Magistrate.
The appellant challenged the order by way of a revision application before the Bombay High Court which rejected the same holding that since it was the second revision application, it was not maintainable, being barred by the provisions of section 397(3) Cr.
The High Court also examined the merits of the case and concurred with the view of the Sessions Judge.
This appeal is by Special Leave.
788 Allowing the appeal, this Court, ^ HELD: t.
The plea that respondent could not have lawfully married a third time in view of the provisions of the was rejected by the Judicial Magistrate by saying that even according to the respondent, his second marriage was null and void as his first wife was then alive.
As regards the first marriage he held that it was not as a fact proved.
He got rid of the effect of both the marriages by adopting a queer logic.
If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground.
It appears that the respondent has satisfactorily provide his case about his earlier marriage by production of good evidence.
Either the respondent 's first marriage was subsisting so as to nullify his second marriage, in which case the appellant 's marriage also was rendered null and void on that ground; or if the respondent 's case of his first marriage is disbelieved the second marriage will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void.
On either hypothesis the appellant 's claim is not covered by Section 125 Cr.
The appellant cannot, therefore, be granted any relief in the present proceedings.
[791D H; 792A B] Smt.
Yamunabhai v Anantrao Shivram Adhav and another; , followed.
Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and that appellant No. 2 was their child.
If, as a matter of fact, a marriage, although ineffective in the eye of law, took place between the appellant and the respondent, the status of the boy must be held to be that of a legitimate son on account of Section 16(1) of the .
Even if the factum of marriage of his mother is ignored, he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of clauses (b) and (c) of Section 125(t) Cr.
P.C. specifically referring to an illegitimate child.
The order of the Judicial Magistrate allowing the maintenance to appellant No. 2 was correctly passed.
But the amount of Rs.50 per month was allowed as the maintenance of the child four years back.
In view of the fact that money value has gone down due to inflation and the child has grown in age, the rate of maintenance is increased to Rs.150.[791B C: 793B] 3.
Since the claim for maintenance was granted in favour of the 789 appellant, by the Judicial Magistrate, there was no question of her challenging the same.
Her challenge before the Sessions Judge was confined to that part of the order assessing the amount of maintenance.
and this issue could not have been raised again by her.
Subject to this limitation, she was certainly entitled to invoke the revisional jurisdiction of the High Court.
The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court.
She could not, therefore, be said to be making a second attempt when she challenged the order before the High Court.
The fact that she had moved the Sessions Court against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge 's order.
[790F H;791A] 4.
No error of law appears to have been discovered in the judgment of the Magistrate and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate.
[792C] Pathumma vs Mohammad, ; , followed.


judgement:
: Criminal Appeal No. 98 of 1987.
From the Judgment and Order dated 9.10.1986 of the Punjab and Haryana High Court in Crl.
A. No. 437 of 1986.
A.N. Mulla and S.K. Sabharwal for the Appellants.
M.R. Sharma, R.S. Suri, H.S. Phoolta, Meera Agarwal and R.C. Mishra for the Respondent.
846 The Judgment of the Court was delivered by OZA, J.
This is an appeal on grant of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 437/86 and Reference No. 4/86 wherein the learned Judgess of the High Court maintained the conviction and sentence passed against the appellants by the learned Additional Sessions Judge, Faridkot.
The conviction and sentences passed against the appellants are: CHARGES & SENTENCES: Darshan Singh u/s 302 IPC (for Sentenced to death and to the murder of pay a fine of Rs.200/ or Mukand Singh in default R.I. for three months.
Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life and alias Bagga (of Mukand Singh) to pay a fine of Rs.200/ Singh and or in default R.I. for Roop Singh three months each.
Darshan Singh u/s 302 IPC Sentenced to death and to (for the murder) pay a fine of Rs.200/ or of Harbans Kaur) in default to undergo R.I. for three months.
Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life alias Bagga of Harbans Kaur) and to pay a fine of Singh and Rs.200/ or in default Roop Singh R.I. for three months each Buggar Singh u/s 302 IPC Sentenced to death and to Bagga Singh (for the murder) pay a fine of Rs.200/ or of Pritam Kaur) in default to undergo for R.I. three months.
Darshan Singh, u/ss 302/34 IPC Sentenced to undergo Pala Singh and (for the murder) imprisonment for life and Roop Singh of Pritam Kaur) to pay a fine of Rs.200/ or in default to undergo R.I. for three months each.
847 Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court.
This appeal has been filed by Darshan Singh and Buggar Singh @ Bagga Singh, therefore we are concerned with their cases only.
The prosecution case at the trial was that on 24th June, 1985 at about 7.30 p.m. Dalip Singh, brother of Pritam Kaur, and his son Sarbjit Singh were present outside the house of Mukand Singh alongwith Gurnam Singh son of Babu Singh.
Mukand Singh was returning to his house.
At that time, Darshan Singh and Roop Singh accused armed with a Gandasa each, Pala Singh and Buggar Singh accused armed with Kapa each came on a tractor from the village side.
They stopped the tractor near Mukand Singh.
All the four accused got down from the tractor.
Pala Singh and Roop Singh accused caught hold of Mukand Singh deceased and threw him on the ground.
A blow on the neck of Mukand Singh was inflicted by Darshan Singh as a result of which the neck was chopped off except that it remained suspended with the body by skin.
Then Harbans Kaur, the daughter of Mukand Singh came out of the house and she was given three gandasa blows on her head by Darshan Singh.
It is thereafter that Pritam Kaur, the wife of Mukand Singh came out of the house and Bugger Singh gave kapa blows on her person.
As a result, all the three victims died on the spot.
Dalip Singh, Sarbjit Singh and Gurnam Singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants.
Thereupon all the appellants made good their escape.
It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue.
The appellant Darshan Singh is the son of Pala Singh whereas Bugger Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant.
It is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it.
Apparently, Pala Singh and Darshan Singh by eradicating the family of his brother Mukand Singh removed one of the successors claiming half share in the property.
It was also alleged that as Mukand Singh had no male issue and Harbans Kaur was of marriageable age, it appears from evidence that negotiations for marriage were in the offing, Pala Singh apprehended the entrance of some stranger in the family as son in law of Mukand Singh to succeed to the property falling in the share of Mukand Singh.
848 Dalip Singh accompained with Gurnam Singh son of Babu Singh went immediately to the Police Station, Baghapurana and lodged the First Information Report exhibit PH which was recorded by Inspector Darshan Singh.
This report was recorded at 8.30 p.m. and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m.
Inspector Darshan Singh went on the spot, prepared the visual plan.
He also held inquest of the three dead bodies of Mukand Singh, Harbans Kaur and Pritam Kaur respectively and sent the dead bodies for autopsy.
He also took blood stained earth from the place where the bodies were found and recovered 20 brick bats from the spot.
The accused persons were searched and it is alleged that they were not traceable.
They, however, were arrested subsequently on 27th June, 1985 and 1st July, 1985.
After arrest, the Investigation officer interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh PW and he disclosed in his statement giving information where the gandasa is and on his information from the specified place, the gandasa was recovered.
After investigaton, a charge sheet was filed and on trial the appellants have been convicted and sentenced as mentioned above.
As it involved a sentence of death to the two appellants, apart from the appeal preferred by the appellants there was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by the appellants and confirmed the sentence of death awarded by the learned trial court and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us.
Learned counsel appearing for the appellants mainly contended that the motive alleged that the appellants did not like the idea of a stranger inheriting the property and coming into the family after the marriage of Harbans Kaur appears to be not a very plaussible reason.
It was also contended that there is a will executed by Mukand Singh in favour of Sarbjit Singh son of Dalip Singh and therefore if the motive was to eliminate all possible successors to the half share of Mukand Singh the accused appellants would not have spared Sarbjit Singh.
So far as this contention of the learned counsel is concerned when he referred to the relevant evidence it is discovered that this will was filed by Sarbjit Singh after this incident in some civil proceedings when he claimed to be brought on record in place of Mukand Singh on the basis of the will.
This apparently could not indicate that this will in favour of Sarbjit Singh was in the knowledge of the appellants on the date of incident.
Learned counsel could not point out to any other material to 849 suggest that this will was known to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance.
Learned counsel also attempted to contend that Dalip Singh who is the brother of Pritam Kaur the wife of Mukand Singh has given an explanation for having come to the house of Mukand Singh but it does not appear to be justified.
As according to the witness, he is the maternal uncle of Harbans Kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had come to the house of Mukand Singh.
It is apparent that a maternal uncle of the daughter (bride) is generally consulted when negotiations for marriage of the daughter are in progress and apart from it both the courts below had accepted the testimony of this witness which also is fully corroborated by the First Information Report lodged immediately after the incident.
In fact, in this case as the report is lodged immediately the contention advanced by the learned counsel for the appellants is not that there is delay but it was seriously contended that if the incident has taken place at 7.30 p.m. as mentioned in the First Information Report the report could not have been lodged at 8.30 p.m. within one hour as in the First Information Report itself the distance of the police station from the scene of occurrence is recorded as 121/2 kilometres and on this basis an argument was raised by learned counsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report.
Instances of this filed that no relevant evidence was brought on record and not a single question was put to any witness or to Dalip Singh who made the First Information Report that he had noted the time of incident after seeing the watch and this was recorded in the first information report as 7.30 p.m.
It is also clear that there is nothing in his evidence to indicate that he and Gurnam Singh who went to the police station walked on foot and covered a distance of 121/2 kilometres because it is not in their testimony as to whether they went through the normal route or they went across the fields by short cut nor there is anything in the evidence that they did not take a lift in any vehicles.
Learned counsel when confronted with this situation contended that the burden lay on the prosecution but it could not be disputed that if this was the contention of the defence that the report could not have been recorded at 8.30 p.m. if the incident was at 7.30 p.m. question to establish this should have been put in corss examination.
It is apparent that there is no material to indicate that the time of incident when noted was 7.30 p.m. it is precise time nor it is there in 850 evidence as to whether the persons who lodged the first information report walked through 12 1/2 kilometres.
In abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses.
The courts below therefore on consideration of the testimony of the eye witnesses accepted their version and convicted the appellants as mentioned above.
Learned counsel could not from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance could not be placed except for the fact, according to the learned counsel, that there were disputes between the two parties i.e. the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased.
It was also contended that in the locality independent witnesses could be available but they have not been examined.
The Courts below have considered this aspect of the matter.
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available.
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence.
It is also significant that the testimony of the eye witnesses has been fully corroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons.
In this view of the matter therefore learned counsel for the appellants mainly emphasised on the aspect of motive and the first information report.
It was also contended that appellant Bugger Singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him.
The application for contempt against the police moved by Bugger Singh was also relied upon in support of the contention.
We do not find any substance in this contention too.
In the complaint made, it is apparent that none of the police officers in charge of the investigations of the present case has been referred to therein.
It was however, contended that the brotherhood of the uniform created a prejudice against the appellant Buggar Singh, and it is why he has been falsely implicated.
This appears to be too tall a proposition.
There is no material to indicate that there was any prejudice in the mind of the investigating officer.
The report of the incident was lodged immediately and in the 851 report the part played by the accused has been clearly stated.
Under these circumstances, therefore, merely because Buggar Singh chose to make some application and also mentioned the names of some police officers in it, it could not be held that all police officers will be interested in falsely implicating this appellant in a murder case.
There is no other material on the basis of which it could be contended that there was any prejudice against him.
The evidence of the eye witnesses have been considered by both the courts in detail and especially the Sessions Court before whom the witnesses were examined accepted their testimony and we have no reason to discard their testimony.
The names of the eye witnesses have been mentioned in the first information report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence.
No doubt could therefore be raised about the reliability of such evidence.
Learned counsel realising the situation ultimately contended that so far as Darshan Singh is concerned he could not make submissions about the sentence as he has done away with first Mukand Singh his uncle and then Harbans Kaur, Mukand Singh ' daughter i.e. her own cousin.
But he contended that so far as Buggar Singh is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him.
Pala Singh and Darshan Singh may have the interest of getting the property falling into the share of Mukand Singh but Buggar Singh has no such motive and therefore the sentence of death awarded to him does not appear to be justified.
The learned counsel appearing for the respondent State contended that the courts below have considered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after another, have been sentenced to death and those who have been convicted with the aid of Section 34 have been treated leniently and sentence of life imprisonment alone is awarded.
In the light of the discussions above therefore so far as merits are concerned, there is no substance in the contention advanced by learned counsel for the appellants.
The conviction of the appellants could not be assailed on any ground.
The only question that remains to be considered is the question of sentence.
Learned counsel referred to the decision of this Court in Dalbir Singh & Ors.
vs State of Punjab, 852 ; wherein the plausible reasons which may weigh with a court while awarding a sentence of death have been enunciated.
So far as the present case is concerned we must consider the facts of the case.
It is clear and not disputed also that father of Mukand Singh and Pala Singh left behind some agricultural land.
It is not in dispute that the two brothers Pala Singh and Mukand Singh were the only heirs entitled to the share in the property of their father.
It is also not disputed that so far as Mukand Singh is concerned he had only one daughter Harbans Kaur and had no male issue.
It is also disputed that the property disputes have been going on.
There have been cases and complaints against each other.
It appears that Pala Singh and his son Darshan Singh were keen to grab that property and it is in pursuit of this motive that they attacked Mukand Singh and his family and killed all the members of the family, Mukand Singh, his wife Pritam Kaur and his only daughter Harbans Kaur and thereby eliminated everyone who could claim any share in the property.
The attack was brutal.
The medical evidence indicates that Mukand Singh 's neck was chopped off, repeated blows by Gandasa were inflicted on the body of Harbans Kaur.
Therefore it is clear that Darshan Singh first chopped off the neck of Mukand Singh and even after doing this he inflicted number of blows on Harbans Kaur a young girl, his own Uncle 's daughter and the repeated blows go to show that he inflicted injuries with determination that she may not escape.
In this view of the matter and the manner in which brutally these two were done to death, we see no reason to alter the sentence awarded to Darshan Singh.
So far as Buggar Singh is concerned it is no doubt true that he inflicted three blows on Pritam Kaur by Kapa which he was carrying.
So far as infliction of injuries are concerned it could be described as nothing but cruel but it is true that he had no motive.
He appears to have been dragged into the killing.
In our opinion, so far as he is concerned both the courts below were not right in awarding sentence of death.
Consequently the appeal is partly allowed.
The conviction of all the appellants is maintained.
The sentences of all the appellants except Buggar Singh are maintained and so far as Buggar Singh is concerned, sentence of death awarded to him is altered to a sentence of imprisonment for life.
G.N. Appeal allowed.

dataset_name: IN-Abs

summary/full:
% Appellants Nos. 1 and 2 along with two other accused were convicted for the murder of the first Appellant 's paternal uncle, his wife and daughter.
First the brother, and then his daughter and wife were done to death with gandassa and kapa blows just outside their house.
The motive alleged was that the first appellant 's father and his deceased brother had inherited some land from their father and there were disputes about it, and by eliminating the family, one of the successors entitled to half share in the property had been removed.
It was also alleged that the deceased man had no male issue and had only one daughter for whom negotiations for marriage were in the offing and appellant No. 1 and his father apprehended the entry of a stranger in the family as the son in law to succeed to the property falling to the share of the deceased man.
The Trial Court convicted the appellants and sentenced them to death, while the other two accused were sentenced to life imprisonment.
Against the conviction and sentence, an appeal was filed.
There was also a reference to the High Court, as death sentence was involved in respect of the two appellants.
The High Court dismissed the appeal and confirmed the death sentence.
The appeal before this Court is filed by the two appellants who have been sentenced to death.
The motive alleged has been disputed on behalf of the appellants, as a will had been executed by the deceased man in favour of the son of his wife 's brother, and that if at all there was a motive he should have also been eliminated.
844 It was also contended that in the locality independent witnesses could be available and they have not been examined.
Another submission was that one of the witnesses had complained against the Police Officer and so the Police Officers were prejudiced against him.
The time at which the FIR had been registered has also been questioned.
In the absence of motive on the part of the second appellant, it was contended, that the death sentence awarded to him is not justified.
Allowing the appeal partly, this Court, ^ HELD: 1.
The will was filed after the murders, in some civil proceedings when the legatee claimed to be brought on record in place of the deceased man.
This apparently could not indicate that this will was in the knowledge of the appellants on the date of incident.
Therefore the motive cannot be doubted.
[848G H] 2.
One of the witnesses is the maternal uncle of the deceased girl and there were some negotiations for her marriage and for that purpose he along with his son had come to the house of the deceased.
It is apparent that a maternal uncle is generally consulted when negotiations for marriage of a girl are in progress and apart from it both the courts below had accepted the testimony of this witness which is fully corroborated by the First Information Report lodged immediately after the incident.
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available.
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence.
The names of the eye witnesses have been mentioned in the First Information Report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence.
No doubt could therefore be raised about the reliability of such evidence.
[849B C; 851C] 3.
No relevant evidence was brought on record and not a single question was put to any witness or to the person who made the First Information Report as to whether he had noted the correct time of the incident.
There is no material on record to show as to whether the persons who lodged the First Information Report, walked through 12 1/2 kilometres or took a lift in any vehicle.
In the absence of any material, the only thing that appears is that immediately after the incident the report was recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses.
[849F; 850A B] 845 4.
Merely because the second appellant chose to make some application and also mentioned the names of some police officers in it, it could not be said that all police officers would be interested in falsely implicating him in a murder case.
In the complaint made by appellant No. 2, none of the police officers in charge of the investigation of the present case has been referred to therein.
It was, however, contended that the brotherhood of the uniform created a prejudice against the second appellant and that is why he has been falsely implicated.
This appears to be too tall a proposition.
There is no material to indicate that there was any prejudice in the mind of the investigating officer.
The report of the incident was lodged immediately and in the report the part played by the accused has been clearly stated.
[851A B; 850G H] 5.1 It appears that first appellant and his father were keen to grab the property and it is in pursuit of this motive that they committed the triple murder.
The attack was brutal.
The medical evidence indicates that the deceased man 's neck was chopped off and repeated blows by Gandasa were inflicted on the body of his daughter.
Therefore, it is clear that the first appellant first chopped off the neck of his uncle and even after doing this he inflicted number of blows on the young girl, who was his own uncle 's daughter, and the repeated blows go to show that he inflicted the injuries with determination that she may not escape.
In this view of the matter and the brutal manner in which these two were done to death, there is no reason to alter the sentence awarded to the first appellant.
[852C E] 5.2 So far as the second appellant is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him.
He appears to have been dragged into the killing.
Therefore, the sentence of death awarded to the second appellant is altered to a sentence of imprisonment for life.
[852E F]


judgement:
Civil Appeal No. 1115 of 1979.
856 From the Judgment and Order dated 26.10.1978 of the Jammu & Kashmir High Court in W.P.No.41 of 1978.
A.K. Sen, Harish Salve, K.J. John and C.S.S. Rao for the Appellants.
Altaf Ahmed, Advocate General and S.K. Bhattacharya for the Respondents.
The Judgment of the Court was delivered by RAY, J.
This is an appeal by special leave against the judgment and order passed in Writ Petition No. 41 of 1978 dismissing the writ petition and upholding the order of the District Judge, Srinagar dated 26th July, 1978 as well as the order of the Estate Officer dated 20th March, 1978.
The petitioners purchased the premises in dispute which were originally leased out to Dewan Bishen Dass, exhibit Prime Minister of the Jammu and Kashmir, from his successor in interest Purnesh Chandra and others by two sale deeds dated 12.7.1967 and 8.12.1967.
Dewan Bishen Dass who took lease of the said property was in possession of the same for more than 75 years.
The suit property consists of residential houses, buildings, shed and open lands.
The appellants purchased the land under Khasra Nos. 885(min) 890 and 891 measuring about 10 Kanals.
In 1957 the respondents State Government tried to resume the lands for setting up a Tonga and Lorry stand; but thereafter no action was taken in this regard.
In 1961 another order was made by which the land in question was sought to be resumed under the previous order and the said land was sought to be transferred to the Roads and Building Department.
Under this order compensation was fixed at Rs.1,39,260 in respect of building and structures standing on the said lands; however no compensation was paid nor any action was taken subsequently in this regard.
In 1963 another Government order was issued under sec.
4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 seeking to resume the land for purpose of the development of the city.
An appeal preferred by the lessee was rejected.
But no further action was taken thereafter.
On 5th of June 1968 an order of eviction under the provisions of Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was issued seeking to evict the petitioners as being unauthorised occupants.
On January 11, 1978 a large number of police personnel and municipal employees came upon the land and 857 demolished the buildings of the petitioners on the said land.
The Administrator took illegal possession of the suit property whereon the appellants filed a writ petition before the High Court of Jammu and Kashmir praying for a writ or direction prohibiting the Administrator of the Municipality from interfering with the physical possession of the Petitioners and directing him to forbear from taking possession of the property without the authority of law.
The High Court by judgment and order of 19th of July 1979 allowed the writ petition and directed the respondents to restore possession of the premises immediately to the petitioners.
By allowing the writ petition High Court held: (1) Section 6 of the Land Grants Act, shows that the provisions of the Act would apply to the lease created after the passing of the Act.
(2) Possession of the Lessees can be taken only on payment of compensation.
Since no compensation was paid, the lessee is validly in possession and cannot be evicted.
(3) Petitioners not being unauthorised occupants the Act is not applicable and therefore any notice under section 4 or 5.5 of the Act is without jurisdiction.
(4) Section 5 of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is ultra vires Article 14 of the Constitution since discretion is on State Officer to evict one occupant and refuse to evict another.
Amendment of 1962 does not revive section 5 of the 1959 Act.
(5) Action of the State was held malafide.
Against the said judgment and order the respondents filed appeals before this Court being Civil Appeal Nos.
144 147 of 1979.
On August 8, 1972 this Court dismissed those appeals and confirmed the judgment and order made by the High Court holding that as the Administrator of the Municipality had not complied with the provisions of sections 238 and 239 of the Municipal Act the action taken by the Municipality in the matter of demolition must be held to be entirely illegal and contrary to law.
It was further held "that the conclusions and observations of the High Court on all the points which have not 858 been decided by us become unnecessary in the view we have taken with regard to the illegality and invalidity of the demolition carried out pursuant to the notices issued under section 129 of the Municipal Act .
" This decision was reported in State of Jammu and Kashmir & Ors.
vs Haji Wali Mohammed and Ors.v.
; Thereafter the Estate Officer issued a notice under section 4(1) of the Amended Jammu and Kashmir Public Premises (Unauthorised Occupants) Act intimating the appellants that they were in unauthorised occupation of the public premises mentioned in the schedule below by encroaching upon Government land measuring 10 Kanals 8 Marlas and 208 fts.
comprising Khasra No. 890 situated at Bagh Magermal, Srinagar, and calling upon the appellants to show cause why the order of eviction should not be made.
The appellants filed an objection to the said notice stating inter alia that they are not in unauthorised occupation of the said land nor they have encroached upon the same.
The notice is wholly misconceived and it is illegal.
The land in question in fact was taken lease of by late Dewan Bishen Dass who has been in continuance possession of the same for about 75 years and thereafter the appellants purchased the said land in 1967 from the legal heirs of the lessee Dewan Bishen Dass.
The appellants made various improvements on the land and built houses thereon at a cost of about Rs.50,000.
The appellants are not unauthorised occupiers but are fulfledged owners of the said land.
These facts are wholly confirmed by the judgment of the High Court of Jammu and Kashmir while accepting the Writ Petition of the appellants.
The appellants had stepped into the shoes of the original owner who was lawfully inducted in the lawful possession of the land as lessee.
It has been stated that the Estate Officer cannot declare the person in possession as unauthorised occupants after lapse of more than 80 years.
Their objection however was rejected by the Estate Officer and the appellants were directed to hand over possession of the premises including structures to the Administrator of the Municipality within 14 days.
Against the said order the appellants preferred an appeal before the District Judge, Srinagar.
The appellants also challenged the said order by a writ petition before the High Court of Jammu and Kashmir and this was registered as writ petition No. 49 of 1978.
The appeal was however dismissed and the order of the Estate Officer was confirmed holding inter alia that the appellants purchased the land from the legal heirs of Dewan Bishen Dass who was the lessee of the land, that all the sale deeds were executed without obtaining requisite prior permission from the Government and as such the Sub Registrar was not em 859 powered to accept those documents for registration under proviso to section 4 of the Jammu and Kashmir Lands Grants Act, 1960, that the lease shall be deemed to have been determined because of contravention of the provisions of section 12(A) of the Jammu and Kashmir Lands Grants Act, 1960, that the possession of the appellant was not regular and as such they were in authorised occupation, within the meaning of the said Act, that the Government had a right to re enter on the land and the notice in question was rightly issued against the appellants directing them to vacate the land.
The writ petition was amended and this judgment was also challenged.
The writ petition was, however, dismissed by the High Court by Order dated 26th October, 1978 holding that the land being transferred by the legal heirs of the Dewan Bishen Dass without obtaining previous permission of the Government or by the competent authority in that behalf the lease stood determined and the impugned notice under the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was quite in accordance with law.
Against this judgment and order the instant appeal on special leave has been filed by the appellants.
It has been urged on behalf of the appellants that the lands taken lease of by Dewan Bishen Dass who was the exhibit
Prime Minister of the State cannot be deemed to have been taken under the provisions of Ailan No. 10 dated 7 Bhadon 1976 and as such Section 12(A) and Section 6 of the Land Grants Act 1960 are not applicable.
The lease cannot be determined on the ground that the transfer was made in favour of the appellants by the legal heirs of the original lessee without previous permission in writing from the Government or any competent authority.
It has been submitted in this connection that the provisions of the said ailan refers to the lease of land to a "Wasidar", but as the lease was granted free of rent it does not come under the said ailan as the said ailan provides for payment of ground rent for the land used.
Under rule 6 of the said ailan the land belongs to the Government and permission is granted for building purposes only in respect of an area of land not exceeding 3 acres.
In the present case the lease granted in favour of Dewan Bishen Dass is in respect of 20 Kanals of land free of rent whereas under the proviso of the said rule no lease could be granted for a period exceeding 40 years.
It has also been submitted that even if for argument 's sake without admitting it is accepted that the appellant 's predecessor in interest was a Wasidar and lease was granted under the aforesaid Ailan No. 10 yet the lands could not be acquired without providing for adequate compensation to be paid to the Wasidar for the buildings and appurte 860 nances and other improvements effected by him on the land and the amount of compensation shall have to be determined by the State Engineer.
No compensation was either awarded in respect of valuable buildings, structures and other improvements made by the appellant on the land nor any valuation has been made of the buildings and structures existing on the land as well as all the improvements made in respect of such land.
It was, therefore, submitted that the impugned notice under section 4(1) of the said Act was liable to be cancelled and quashed being not in accordance with law.
The learned counsel appearing on behalf of the State has on the other hand submitted that the petitioner 's predecessor, that is, the original lessee was a Wasidar and the lease was granted under Ailan No. 10 dated 7 Bhadon 1976.
It was also contended that section 12(A) of the Jammu and Kashmir Lands Grants Act is applicable to this case.
The transfer of the land by sale in favour of the appellants have been made by the legal heirs of the original lessee Dewan Bishen Dass without the prior permission of the Government or any authority empowered in that behalf.
The lease stood determined from the date of the transfer and the Government has the right of re entry on the land in accordance with the provision 6 of the said Act.
The appellants are unauthorised occupants and as such notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act 1959 is not illegal but is in accordance with the provisions of the said Act.
After considering the submissions advanced by learned counsels for the parties we are constrained to hold that Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands in question were wasidari land leased out to him for the purpose of constructing buildings.
This lease is governed by Ailan No. 10 as well as by the Lands Grants Act 1960.
We affirm the findings of the High Court which held the land as Wasidari land.
The land was transferred by Purnesh Chandra and others, legal representatives of the original lessee Dewan Bishen Dass, in favour of the appellants in contravention of the provisions of section 12(A) of the Jammu and Kashmir Land Grants Act, 1960.
The impugned notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is in accordance with law and as such it is valid.
Under the said Act as well as the rule the appellants are entitled to get compensation of the buildings and structures as well as of the improvements made on the land even though they are not entitled to get compensation in respect of value of the land.
The compensation in the 861 instant case has not been determined nor the same has been paid.
We, therefore, allow the appeal and set aside the judgment and order of the High Court and remit the matter to the District Judge, Srinagar who will either himself or by any Additional District Judge allotted by him hear the parties and determine the market value of the buildings, structures and all other improvements effected on the land in question after hearing the parties and also considering the papers that will be filed in Court and to make an award accordingly.
Since the matter is pending for a long time the District Judge or Additional District Judge allotted by him will expedite the determination of the compensation as directed hereinbefore.
The order of Stay granted by this Court will continue till the compensation is determined and paid to the appellants.
In the facts and circumstances of the case there will be no order as to costs.
N.V.K. Appeal allowed.

summary/full:
% The suit premises consisting of lands and buildings were originally owned by Dewan Bishen Dass a former Prime Minister of the State of Jammu and Kashmir.
The appellants purchased the same from his successor in interest, Purnish Chandra by two sale deeds dated 12.7.1967 and 8.12.1967.
The State Government tried to resume the land for setting up a tonga and lorry stand, and for the purpose of development of the city, and eviction of the appellants was ordered by the Estate Officer under the provision of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 on January 5, 1968.
The Municipality took forcible possession of the land and demolished the buildings thereon on January 11, 1968.
The appellants filed a Writ Petition in the High Court assailing the action of the Municipality.
The High Court on 19.7.1969 allowed the writ petition and held that the appellants were not unauthorised occupants, possession can be taken only on payment of compensation and that Section 5 of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act was ultra vires.
The State appealed to this Court and the judgment of the High Court was confirmed on the sole ground that as the Administrator of the Municipality had not complied with the provisions of section 238 and 239 of the Municipal Act the action taken by the Municipality in the matter of demolishing must be held to be entirely illegal and contrary to law, [State of Jammu and Kashmir vs 854 Haji Wali Mohammad & Ors., ; The Estate Officer thereafter issued a fresh notice under section 4(1) of the amended Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 intimating that the appellants were in unauthorised occupation of the public premises mentioned in the Schedule to the notice.
The appellants filed objections stating that they were not in unauthorised occupation of the said land nor have they encroached upon the same, and that the notice was wholly misconceived and illegal.
It was further contended that the land was purchased by the appellants from the legal heirs of Dewan Bishen Dass, that they had been in continuous possession, made various improvements on the land and built houses, and that the Estate Officer could not declare the person in possession as an unauthorised occupants after lapse of more than 80 years.
The Estate Officer rejected the objections and directed the appellants to handover possession of the premises including structures to the Administrator of the Minicipality.
The appellants preferred an appeal to the District Judge but the same was dismissed.
The order of the Estate Officer was also challenged in a writ petition by the appellants, but the same was dismissed by the High Court holding that the land being transferred by the legal heirs of Dewan Bishen Dass without obtaining prior permission of the Government or the competent authority in that behalf, the lease stood determined and that the notice under the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was in accordance with law.
In the appeal to this Court by Special Leave it was contended on behalf of the appellants: that the lands taken on lease by Dewan Bishen Dass cannot be deemed to have been taken under the provisions of Ailan No. 10 dated 7 Bhadon 1976 and as such section 12(A) and section 6 of the Land Grants Act 1960 are not applicable, that the lands could not be acquired without providing for adequate compensation to be paid to the Wasidar for the buildings, appurtenances and other improvements effected by him, that no compensation in fact was awarded and that the notice under section 4 of the Act was liable to be cancelled and quashed as being not in accordance with law.
855 The appeal was resisted by the State respondents, contending: that the appellants predecessor that is the original lessee was a Wasidar and that the lease was granted under Ailan No. 10 dated 7 Bhadon 1976, that section 12 A of the Jammu and Kashmir Lands Grants Act is applicable, that the transfer of the land had been made by the legal heirs of the original lessee Dewan Bishen Dass without the prior permission of the Government or any authority in that behalf, that the lease stood determined from the date of the transfer, the Government had the right of re entry on the land in accordance with the provisions of section 6 of the Land Grants Act, that the appellants are unauthorised occupants and consequently the notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 is not illegal but is in accordance with the provisions of the said Act.
Allowing the Appeal, ^ HELD: 1.
Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands were wasidari lands leased out to him for the purpose of constructing buildings.
This lease was governed by Ailan No. 10 as well as by the Lands Grants Act, 1960.
[860F] 2.
The land was transferred by Purnish Chandra and others, legal representatives of the original lessee Dewan Bishen Dass, in favour of the appellants in contravention of the provisions of Section 12(A) of the Jammu and Kashmir Land Grants Act, 1960.
[860G] 3.
The notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is in accordance with law and as such it is valid.
Under the Act as well as the rule the appellants are entitled to get compensation for the buildings and structures as well as of the improvements made on the land even though they are not entitled to get compensation in respect of the value of the land.
[860G H] 4.
The compensation in the instant case, has not been determined nor the same has been paid.
Appeal allowed.
Judgment and Order of High Court, set aside.
Matter remitted to the District Judge, who would expedite the determination of the compensation after determining the market value of the buildings, structures and all the improvements effected on the land.
[861A B]


judgement:
S.L.P. (CIVIL) No. 14968 of 1987.
From the Judgment and Order dated 2.11.1987 of the High Court of Allahabad in Civil Misc.
Petition No.492 of 1987.
S.N. Kacker and Pramod Swarup for the Petitioner.
Soli J. Sorabjee and R.B. Mehrotra for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition under Article 136 of the Constitution for leave to appeal is against the decision of the High Court of Allahabad dated 2nd of November, 1987.
The question involved here is regarding the levy and realisation of octroi duty by the Nagar Mahapalika, Bareilly in Uttar Pradesh.
Kasturi Lal Satantra Kumar and his partner, respondents herein, by a bid in the auction held for retail vend of country liquor for excise year 1987 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops known as Faridpur Group in the district of Bareilly.
The auction was held in the month of March, 1987.
One of the conditions of the auction which also formed part of the licence, was that the licensee would obtain supply of country liquor for retail vend from the bonded warehouse in respect of Bareilly district situated within the limits of Nagar Mahapalika Bareilly.
Indubitably the said Kasturi petitioner in the original writ petition brought into the territory country spirit, the question was at what rate the municipality was to impose octroi duty on the rectified spirit which was brought.
It appears that there was a notification dated 30th of April, 1986, published in the U.P. Gazette in exercise of powers under section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959.
In the Schedule forming part of that notification are mentioned the articles on which the octroi duty is payable and the rates thereof.
The articles have been grouped together in different classes from Class I to Class X. Class III which bears the heading "Articles of lighting, Fuel, Washing and Lubricants" contains the following entry as item No. 7: "7.
Methelated denatured and rectified spirit . .Rs.0.05 per litre" 868 Class VI with the heading "Tobacco and other intoxicating goods" contains the following entry at item No. 6: "6.
Foreign imported liquor and all kinds of wines made in India.
. .Re.1 per litre" It is asserted on behalf of the respondents that the point of entry within the Nagar Mahapalika limits, the plain spirit is nothing but rectified spirit and that octroi duty could not be charged upon it in excess of Rs.0.05 per litre under Item No. 7 of Class III of the aforesaid Gazette Notification.
The Municipality contends otherwise that it is foreign imported liquor of all kinds of wines made in India.
The base for this contention is that for foreign liquor or wine rectified spirit is used.
Reliance was placed on a decision of this Court in the State of U.P. and others vs Synthetics and Chemical Ltd. etc.
, A.I.R. 1980 S.C. 614, where this Court observed that the term 'liquor ' in the various Abkari Acts in the provinces of India would not only cover those alcoholic liquids which are generally used for beverage purposes and produce intoxication but also all liquids containing alcohol.
It is, therefore, submitted that the payment of octroi duty could not be avoided by the respondents saying that the plain country spirit was not liquor in the sense that it was not fit for human consumption at the stage when it was brought within the limits of the Nagar Mahapalika.
The normal meaning of the expression "foreign imported liquor or all kinds of wine made in India" would not fit in the description of the rectified spirit.
Ordinary people would not consider rectified spirit to be foreign imported liquor or all kinds of wines made in India.
That is not the natural meaning as understood by common people.
That is the yardstick by which this should be judged.
The dictionary meaning also corresponds to the same view.
"Wine" according to Collins Dictionary of the English language means an alcoholic drink produced by the fermenting of grapes with water and sugar and an alcoholic drink produced in this way from other fruits, flowers etc.
By any common notion it could not be considered that the respondents having regard to the nature of the goods, brought into the territory liquor or wine.
The High Court has come to that conclusion after taking into consideration the ordinary notion.
While giving a meaning to an item contained in the Schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular 869 group.
All the items in one group should be considered in a generic sense.
It appears that Class III of the Schedule in the instant case was intended to deal with the subjects of Methelated denatured and rectified spirit which was brought within the limits of the Nagar Mahapalika for use as articles for lighting, fuel, washing and lubricants at the low rate of Rs.0.05 per litre while liquor brought within its limits for use as an article of intoxication was intended to be subjected to levy of octroi duty at the higher rate of Re.1 per litre.
Class VI contains the following items: "Class VI Tobacco and other intoxicating goods: 1.
Field dried tobacco, its chura and roots ordinary tobacco for eating and Hugga. 2.
Scented tobacco for eating and smoking, Qimam, Surti, Sugni. 3.
Leaves of bidi.
Bidi tobacco, finished bidi, prepared khamira tobacco.
Cigarette cigar, foreign type manufactured tobacco which is smoked through cigarette and pipe, cigarette paper, pipe and other such articles 6.
Foreign imported liquor and all kinds of wines made in India.
" The scheme is found in respect of the articles mentioned in the various other classes also.
The High Court has noted Class I which deals with articles of food and drinks for men and animals.
Item No. 1 of the said class mentions wheat and paddy; item No. 6 mentions chemical fodder meant for animals and birds; item No. 16 mentions ice made of water and item No. 17 mentions all cold drinks like Double Seven, Thumps up, Limca, Gold spot, etc.
Likewise, in Class III, articles for lighting, fuel, washing and lubricants, one finds at item 1 fuel and wood etc.
We must reiterate that we are concerned with a duty which is imposed at the time of entry and not how it is used thereafter.
The 870 taxable event for the imposition of octroi is the entry and the nature and type of the goods at the point of entry is the relevant factor.
We may note that this view was taken by the Rajasthan High Court in Heeralal and others vs State, A.I.R. Having regard to the nature of the duty and the type of the goods with which we are concerned, we are of the opinion that the rectified spirit is dutiable at the rate of Rs.0.05 per litre and not on the basis that it was foreign wine or liquor.
In the premises, the view taken by the High Court is right.
This petition therefore, fails and is accordingly dismissed.
N.V.K. Petition dismissed.

summary/full:
% The Nagar Mahapalika, Bareilly petitioner imposed octroi duty on goods brought within its limits for 'consumption, use or sale therein ' through a Notification dated April 30, 1986 in exercise of powers under section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959.
In the Schedule forming part of this notification are mentioned the articles on which octroi duty is payable and the rates thereof.
The articles have been grouped together in different classes from Class I to Class X. Class III which bears the Heading "Articles of lighting, fuel, washing and lubricants contains the entry Item No. 7 as "7.
Methalated denatured and rectified spirit Rs.0.05 per litre.
" Class VI with the heading "Tobacco and other intoxicating goods" contains the entry at Item No. 6: as "6.
Foreign imported liquor and all kinds of wines made in India Re.1 per litre.
" Kasturi Lal Satantra Kumar and his partner respondents 3 and 4 by a bid in the auction held for retail vend of country liquor for the excise year 1987 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops in the district of Bareilly.
One of the conditions of the auction which also formed part of the licence was that the licensee would obtain supply of country liquor for retail vend from the bonded warehouse in respect of Bareilly district.
The Nagar Mahapalika sought to realise octroi duty on the 866 country spirit supplied by the bonded warehouse at the rate of Re.1 per litre treating it to be 'liquor fit for human consumption ' under Entry 6 of Class VI of the Notification.
The respondents filed a writ petition for a direction to restrain the Nagar Mahapalika from collecting octroi at the rate of Re.1 per litre contending that country spirit is nothing but rectified spirit and that octroi duty could not be charged in excess of Rs.0.05 per litre under Item No. 7 of Class III of the Notification.
The High Court allowed the writ petition and restrained the Nagar Mahapalika from requiring payment of octroi duty at Re.1 per litre upon the country spirit brought within its limit under Item No. 6 of Class VI of the Schedule to the Notification.
Dismissing the SLP of the Nagar Mahapalika, this Court, ^ HELD: 1.
The taxable event for the imposition of octroi is the entry, and the nature and type of the goods at the point of entry on the relevant factors.
[870A] 2.
The normal meaning of the expressions "foreign imported liquor or all kinds of wine made in India" would not fit in the description of the rectified spirit.
Ordinary people would not consider rectified spirit to be 'foreign imported liquor or all kinds of wines made in India '.
That is not the natural meaning as understood by common people.
That is the yardstick by which this should be judged.
The dictionary meaning also corresponds to the same view.
[868E F] 3.
While giving a meaning to an Item contained in the Schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular group.
All the items in one group should be considered in a generic sense.
[868H; 869A] In the instant case, having regard to the nature of the duty and the type of the goods, rectified spirit is dutiable at the rate of Rs.0.05 per litre and not on the basis that it was 'foreign wine or liquor. ' [870B] State of U.P. and others vs Synthetics and Chemical Ltd. etc.
; , , referred to.
Heeralal and others vs State, A.I.R. , approved.


judgement:
Civil Appeal No. 2206 of 1987.
From the Judgment and order dated 4.2.1987 of the High Court of Punjab and Haryana in Civil Revisions No. 2371 of 1986.
A.S. Sohal, R.K. Talwar and P.N. Puri for the Appellant.
S.M. Sarin and R.C. Misra for the Respondent.
The Judgment of the Court was delivered by RAY, J.
This is an appeal by special leave against the judgment and order passed in Civil Revision No. 2371 of 1986 dismissing the revision petition and upholding the order of eviction of the tenant appellant from the house in question.
The landlord, Kartar Singh filed an application in the court of Rent Controller, Kapurthala under Section 13 A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, stating inter alia that Dr. D.N. Malhotra is a tenant in respect of his house No. 694 A within Kapurthala Municipality; that he was in arrears of rent since 22nd December, 1984; that the landlord retired from the service of Government of India, Ministry of Defence on 20th May, 1949 'and his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry; that he had no other house within the Municipality and that he wanted the house in question to reside and prayed for ejectment of the tenant appellant.
The tenant appellant on receiving the summons filed an affidavit seeking leave of the Court to contest the application stating inter alia that he was inducted as a tenant in the premises in question in the year 1968; that the petitioner had been letting out the premises in question 836 at different intervals to other tenants; that the present application filed by the petitioner landlord is mala fide and the defendant is entitled to the leave to contest the application on the ground that Section 13 A of the said Act does not entitle the petitioner to maintain the present petition.
The Rent Controller granted leave to the tenant to contest R the petition on the following ground: Whether the petitioner is a specified landlord as defined in Section 2(hh) of the East Punjab Urban Rent Restriction (Amendment) Act, 1985.
The petitioner landlord examined himself and he also filed a certificate issued to him by Regional Settlement Commissioner who was his appointing authority.
This certificate was marked as Exhibit A 1 in the case.
The tenant respondent examined himself and stated that the petitioner could not get the benefit of Section 13 A of the said Act as he was not the landlord of the said house either before or on the date of his retirement from service or the Union i.e. in 1965, the house being let out to him in 1968.
The Rent Controller negatived the contentions of the tenant respondent and allowed the application directing the tenant respondent to vacate the premises within one month from the date of the order.
The tenant appellant preferred an application being Civil Revision No. 2371 of 1986 under Section 18A of the said Act.
The revision case was dismissed by the High Court of Punjab and Haryana holding inter alia that the respondent being a specified landlord at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (to be hereinafter referred to in short as the said Act) was entitled to get an order of eviction of the tenant from his house.
The order of the Rent Controller was upheld.
It was further held that the decisions cited at the bar in support of the contention that the respondent was not the landlord qua the tenant appellant on or before his retirement from service, were not applicable to this case as the provisions of the Acts dealt with in those decisions were different from provisions of Section 13 A of the said Act.
It is against this judgment and order the instant appeal on special leave has been filed.
It is convenient to quote the relevant provisions of the said Act 837 before proceeding to determine the questions in controversy between A the parties.
Sec.2(hh): 'Specified landlord means a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.
13 A Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends D to reside to recover possession of his residential building or scheduled building as the case may be, for his own occupation there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any con tract (whether expressed or implied) custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts . " Sec.18 A "(1) Every application under Section 13 A shall be dealt with in accordance with the procedure specified in this section.
. . . . . . . (8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this Section.
838 Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law, call for the re cords of the case and pass such order in respect thereto as it thinks fit.
" In Sohan Singh vs Dhan Raj Sharma, [1983] 2 R.L.R. 465, the question was whether the ex servicemen landlord, Sohan Singh fell within the category of landlord as envisaged in Section 13(3A) of Haryana Urban (Control of Rent and Eviction) Act, 1973 in order to have an order of eviction of the tenant in a summary way.
Landlord, Sohan Singh retired from Air Force on 3rd March, 1976 and on 17th November, 1978 he purchased the shop bearing No. 2454 in Block No. II, Patel Road, Ambala.
On 2nd February, 1979 an application was made by him for ejectment of the respondent tenant from the said shop on the ground that he required the same for his personal use of setting up his own business therein, under Section 13(3A) of the Act.
Section 13(3A) provides that "in the case of a non residential building, a landlord who stands retired or discharged from the armed force of the Union of India" may apply within a period of three years from the date of his retirement or discharge from service for an order directing the tenant to put the landlord in possession.
It was held that the expression landlord would mean a landlord who was a landlord as such qua the tenant and the premises on the date of his retirement.
Sohan Singh who pruchased the disputed shop after his retirement was not landlord of the shop on the date of his retirement.
The application for ejectment of tenant was, therefore, dismissed.
In Bhanu Aththayya vs Comdr.
Kaushal & Ors., , respondent No. 1 who was in Navy retired from service in February, 1968.
Respondent Nos. 1 and 2 who are husband and wife owned the flat in question in a building of the Shankar Mahal Cooperative Housing Society Ltd. Bombay.
On 17th July, 1972 respondent No. 2, wife of respondent No. 1 both on her behalf as well as on behalf of her husband gave the flat on leave and licence basis to the petitioner.
On 19th November, 1975, the respondent No. 1 secured a certificate from Vice Admiral Flag officer, Commanding in Chief, Western Naval Command, under the provisions of Section 13 Al.
On 24th November, 1975, respondent Nos. 1 and 2 served a notice on the petitioner to quit and vacate.
As the petitioner did not vacate, the respondent No. 1 made an application under Section 13 Al of Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947) as amended for an order of his ejectment and for giving him possession of 839 the said flat.
The application was ultimately dismissed by the High Court of Bombay on the ground that petitioner was not a landlord qua the tenant and the premises at the time of his retirement from Navy and as such he could not get an order of eviction of the petitioner tenant from the suit premises under Section 13 Al.
The question whether a retired army officer who acquired a building after his retirement can be deemed to be a landlord within the meaning Section 13 Al of Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) came up for consideration before this Court in the case of Mrs. Winifred Ross and Anr.
vs Mrs. Ivy Fonseca and ors., A.I.R. In this case one Lt. Col. T.E. Ross who was a member of the Indian Army retired from Military service in 1967.
The property of which the suit building forms a part originally belongs to his mother in law, Mrs. Arcene Parera.
She gifted the said property in favour of her daughter Mrs. Winifred Ross, the wife of the plaintiff, on November 9, 1976.
The property consisted of some outhouses and the defendant is a tenant in one of those out houses for a number of years.
The said premises consisted of two rooms and a verandah.
On June 6, 1977, Mrs. Winifred Ross made a gift of the portion occupied by the defendant as a tenant in favour of the plaintiff.
The plaintiff thereafter, made an application for eviction of the defendant and for possession of the said premises under section 13 Al of the said Act, which was introduced by an amendment made in 1975.
It was held by this Court that the plaintiff could not avail of the provisions of Section 13 Al to recover from the tenant possession of the building which he acquired after his retirement.
The word landlord used in Section 13 Al refers to an officer of the armed forces of the Union, who was a landlord either before or on the date of his retirement from the defence service of the Union.
It has been further held that Section 13 Al can not be liberally interpreted to cover all retired members of the armed forces irrespective of the fact whether they were landlords while they were in service or not.
Such a liberal interpretation of Section 13 Al is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution In the instant case Section 13 of the East Punjab Urban Rent Restriction (Amendment) Act No. 2 of 1985 which was published in the Pubjab Gazette Extra ordinary dated 16th November, 1985 conferred right on the specified landlord to make application at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) , whichever is later.
to the Controller along with a Certificate from the Authority competent to remove him from service for directing the tenant to give him possession of the premises.
This Section thus confers right on the ex serviceman who is a specified landlord under Section 2(hh) of the said Act to apply after retirement within one year of the commencement of the said Act under Section 13 A of the said Act for eviction of the tenant.
The respondent landlord who retired from the service of the Union is the owner of the house and he is the landlord at the relevant time i.e. after his retirement within one year of the date of commencement of the said Act i.e. 16th November, 1985 qua the tenant and the premises and the application to the Rent Con troller was made for an order directing the tenant appellant to give possession of the suit house to him to reside therein as he had no other house within the Municipality.
The respondent in order to come within the definition of specified landlord has to satisfy two things: (a) he shall be a person who is entitled to receive rent in respect of the house in question from the tenant appellant at his own account.
and (b) he is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of State.
The petitioner retired from the post of S.D.O. which post he held in the Rehabilitation Department, Government of India.
The petitioner as appears from the statements made in the affidavit of the appellant and also from the certificate Exhibit lA filed by the landlord that he retired from service in 1963 and the appellant has been inducted as a tenant in respect of the said house in 1968.
This clearly evinces that the respondent was not a specified landlord within the meaning of Section 2(hh) of the said Act as the appellant was inducted as a tenant after his retirement from the service of the Union.
Section 13 A of East Punjab Urban Rent Restriction (Amendment) Act, 1985 in clear terms enjoins that "Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the house to him".
Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963.
The landlord, as it appears, has not 841 fulfilled this requirement in as after his retirement from service of the Union he has let out the premises to the tenant appellant.
It has been urged before us on behalf of the respondent that at the relevant time i.e. after retirement of the respondent from service within one year of the date of commencement of the said Act he is the landlord of the appellant and as such he falls within the definition of Section 2(hh) of the said Act and he becomes a specified landlord.
This submission, in our view, cannot be sustained in as much as the words "specified landlord" as used in section 2(hh) refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in connection with the affairs of the Union or of State.
It cannot in any manner include an ex serviceman who was not a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union.
This has been very succinctly held by this Court in the case of Mrs. Winifred Ross and Anr.
vs Mrs. Ivy Fonseca and Ors.
(supra) which has been referred to hereinbefore.
On a conspectus of the decisions referred to hereinbefore more particularly the decision rendered by this Court in the case of Mrs. Winifred Ross & Anr.
vs Mrs. Ivy Fonseca and ors.
(supra) it is well settled that in order to get the benefit of eviction of the tenant in a summary way the ex serviceman must be a landlord qua the premises as well as the tenant at the time of his retirement from service.
The ex serviceman is not competent to make an application to the Rent Controller to get possession of his house by evicting the tenant in a summary way unless and until he satisfies the test that he is a landlord qua the premises and the tenant at the time of his retirement or discharge from service.
In the instant case the Rent Controller has not at all considered this question but he simply held that the petitioner was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2(hh) of the Act.
The learned Single Judge of the Punjab and Haryana High Court though noticed the decision in the case of Bhanu Aththayya vs Comdr.
Kaushal and ors.
and also in Sohan Singh vs Dhan Raj but without properly considering the provisions of Section 2(hh) of the Act held that the application under section 13 A of the Act by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of landlord and tenant on the date of retirement of the specified landlord.
The learned Single Judge also 842 observed that as there was no provision for a specified landlord after his retirement to make an application for ejectment of his tenant within one year after commencement of the amended Act as occurs in the Punjab Act the ratio of the decision in those cases cited before the Court would not apply.
This view of the learned Single Judge in our considered opinion is on the face of it erroneous.
We have stated hereinbefore that to get the benefit of the summary procedure provided in Section 13 A of the said Act, the ex serviceman must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2(hh) of the said Act.
The respondent did not satisfy this basic requirement of Section 2(hh) of the Act and so he was not competent to maintain an application under Section 13 A of the said Act.
It is obvious that the respondent landlord retired from the service of the Union in 1965 and the house in question was let out to the tenant appellant in 1968.
The respondent was not a landlord qua the premises and the tenant on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the Punjab Act.
For the reasons aforesaid we allow the appeal and set aside the judgment and orders of the courts below.
In the facts and circumstances of the case, there will be no order as to costs.
N.V.K. Appeal allowed.

summary/full:
% The respondent landlord filed an application in the Court of the Rent Controller under Section 13 A of the East Punjab Rent Restriction (Amendment) Act, 1985, seeking eviction of the appellant tenant on the ground of arrears of rent and for his own use and occupation.
It was contended that the respondent retired from the service of the Government of India, Ministry of Defence on 20th May, 1949 and that his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry, and that as he had no other house within the municipality he wanted the house in question for residence.
On receiving the summons of the eviction petition the appellant tenant sought leave to contest the application on the ground that he was inducted as a tenant in the premises in the year 1968, and that Section 13 A of the Act did not entitle the landlord to maintain the eviction petition.
The Rent Controller after recording the evidence of the parties negatived the contention of the tenant, allowed the application, and directed the tenant to vacate the premises within one month from the date of the order.
The appellant preferred a revision application under Section 18 A of the Act, but the High Court holding that the respondent being a 'specified landlord ' at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 was entitled to get an order of eviction of the tenant from his house, upheld the eviction order of the Rent Controller and dismissed the revision petition.
The tenant appealed to this Court by special leave.
834 Allowing the appeal, ^ HELD: 1.
The respondent landlord did not satisfy the basic requirement of section 2(hh) of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 and so he was not competent to maintain the application under section 13 A of the said Act.
[842C] 2.
Section 13 A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 in clear terms enjoins that: "Where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover the possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the said house to him".
Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963.
[840F H] 3.
To get the benefit of the summary procedure provided in Section 13 A the ex servicemen must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2(hh).
[842B] 4.
The respondent landlord in the instant case, retired from the service of the Union in 1965, and the house in question was let out to the appellant tenant in 1968.
The respondent was thus not a landlord qua the premises and the tenant, on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the East Punjab Act.
[842C D] 5.
The Rent Controller has not at all considered the question whether the landlord is a specified landlord, but simply held that the landlord was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2(hh) of the Act.
The Single Judge of the High Court without considering the provisions of Section 2(hh) of the Act held that the application under Section 13 A by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of the landlord and tenant on the date of the retirement of the specified landlord.
This view is on the face of it erroneous.
The 835 judgments and orders of the Courts below are set aside.
[841F H; 842A B, D] A Sohan Singh vs Dhan Raj Sharma, [l983] 2 R.L.R. 465 and Bhanu Aththayya vs Comdr.
Kaushal & Ors., [1979] 2 R.C.J. 338, approved.
Mrs. Winifred Ross and Anr.
vs Mrs. Ivy Fonseca and Ors., A.I.R. 1984 SC 458, distinguished.