judgement:
Nos. 661, 1380, 1885 & 1886 of 1967.
209 Appeal from the judgment and order dated February 25, 1965 of the Patna High Court in First Appeals Nos. 437 and 438 of 1959.
section V. Gupte, B. P. Rajgarhia and U. P. Singh, for the appellants in C.A. Nos. 661 and 1380 of 1967) and for respondent No. 1 C.A. Nos.
1885 and 1886 of 1967).
D. Goburdhun, for the respondent (in C.A. Nos. 661 and 1380 if 1967 and for the appellant (in C.A. Nos. 1885 and 1886 of 1967).
The Judgment of the Court was delivered by P. laganmohan Reddy, J.
These appeals are by certificate against the judgment of the Patna High Court in land acquisition appeals.
Two notifications dated 7 7 1954 under section 4 of the.
Land Acquisition Act 1894 (Act 1 of 1894) (hereinafter called 'the Act '), were issued one in respect of a portion of Plot Nos. 178 and 1784 admeasuring 2.65 acres and the other in respect of the whole of the plot No. 1783 admeasuring 2 acres situated in Ward No. 3 of Ranchi Municipality.
Section 6 notification in respect of these lands was published on 7 9 1954 and possession was taken on 23 9 1954 under section 17(1) after making a declaration under section 17(4) that the provisions of section 5A shall not apply.
The Collector awarded compensation of Rs. 1,20,419 6 11 in respect of the first acquisition and Rs. 47,648 13 6 in respect of the second.
Thereafter, at the instance of the claimant, a reference under section 18 of the Act was made to the Judicial Commissioner of Chhota Nagpur, Ranchi who.
while maintaining the market value, of the land, awarded by the Collector, gave further compensation for severance at the rate of 5% and 10% in respect of potential value of the land.
The Judicial Commissioner, however, did not grant the 15% solatium under section 23(2) of the Act.
Being dissatisfied, the claimants preferred appeals to the High Court.
The High Court revised the compensation and awarded Rs. 90,000/ per acre and 15% as solatium on the market value under section 23(2) of the Act but did not grant them the 5% towards severance.
Interest at 6% per annum on the amount of enhanced compensation from 23 9 1954 together with costs was also decreed.
Against the judgment and decree, the claimants have filed Civil Appeals 661 & 1380/67 while the State has filed Civil Appeals 1885 86/67.
The lands in question which have been acquired were earlier leased on 22 9 1944 to the Military authorities on a rent of Rs. 600/ per month for a period of 6 months under a registered deed with option Lo renew for a maximum period of 10 years 2lO which period expired on 21 9 1954.
One of the conditions of the lease was that on the termination of the lease, the lessor would exercise the option given under the lease to purchase all buildings, structures, gardens and any other structures constructed by the lessee during their occupation of the leased property, at 75 per cent of the valuation that would be determined by the Superintending Engineer, Chhota Nagpur Circle, and in case the lessors refused to purchase, the lessee was entitled to dismantle and take away the materials.
Towards the end of the lease period, the Govern ment of Bihar decided to acquire the property for the State Soldiers, Sailors and Airmen 's Board and initiated proceedings as aforesaid.
In these appeals the only question that has to be determined is : What is the market value of the property as on the date of section 4 notification ? In the valuation report given by the Land Acquisition Officer, Ranchi, Ex 1, the principle of capitalisation on the basis of 20 times the annual rental of Rs. 7,200/ at the rate of Rs. 600/ p.m. was adopted as the price of the lands.
In that report it was also pointed out that the sale price of 1.08.5 acres out of the premises of the Ranchi Club as per registered sale deed, exhibit C 1 dated 1 4 1953, was Rs. 41,470/ per acre.
which was not fair.
Apart from these 25 other sale transactions in respect of portions of Plot No. 1789 between 1952 and 1953 were also referred in that report.
Some of these lands were situated opposite to the Ranchi Club and the sale price came to Rs. 1092/ per katha, which is about Rs. 60,000/ per acre.
He was further pointed out that some other lands a little further away from the main road but belonging to the same Plot No. 1789 were sold at the rates between Rs. 250 / / to Rs. 800/ per katha.
This report formed the basis of the award made by the Collector.
The High Court took judicial notice, and in our view rightly so, that after the termination of the Second World War in 1945 there was a rise in land values due to the increased demand of homestead lands for building purposes.
It also considered various sale deeds produced and proved on behalf of the claimants along with the oral evidence to determine the market value of the land.
The objections from both the appellant and the respondent were taken into account in respect of each of these and most of them were considered as not furnishing a proper or adequate valuation either having regard to the distance of the lands which were the subject matter of the sale or the inadequacy of the information pertaining thereto.
The High Court, however, adopted the price in the sale deed Ex C 1 executed on 6 5 1953 by the Ranchi Club Ltd., in favour of the President of India in respect of 1.085 acres 3 bighas 5 kathas 10 chhataks in Plot No. 1221 for Rs. 45,000/:as the basis for arriving at the market value of the acquired land.
211 Though the land in question was situated on the main Ranchi Chaibasa Road, a strong objection was taken against adopting the price as a basis because it was not only 1/2 mile away from the land under acquisition but what was sold was only the leasehold right in the land.
These objections were rejected on the ground that for all,practical purposes the interest that was held or sold by the Ranchi Club under Ex.
C 1 was not inferior to an absolute title.
The area of the land, the subject matter of the sale, was considered to be fairly large being more than 1 acre and the situation was also the same as the land under acquisition except that it was farther away from it.
In these circumstances, the High Court thought, after a proper allowance is made for the difference in distance, the transaction yields a more acceptable guide for determining the market value of the land under acquisition and accordingly, it adopted twice the price.
as charged for the land in Ext.
C 1 as indicating a fair market value of the land in question.
The High Court further added Rs. 7060/ per acre as the difference between tenure rights and lease hold rights that were held by the President of India and awarded Rs. 90,00O./ per acre.
it did notwithstanding the fact that it was conscious that there was no definite data for the two additions that have been made, because in its view, in cases of this nature a certain amount of estimate has to be made which may even be arbitrary.
Accordingly, it awarded compensation for the 4.65 acres of land which was acquired by the Government at Rs. 90,000/ per acre together with 15% solatium Payable under clause (2) of section 23 of the Act.
5% compensation for severance of land from the claimants ' other portion of the land that remained with them after acquisition, which was awarded by the Judicial Commissioner, Chhota Nagpur, was disallowed on the ground that there was an entrance to the back portion of the land which was left with the #owners and also because there was no evidence to show that in fact there had been any depreciation in he value of the remaining area and if so, to what extent.
On the other hand, it main tained the 10% on the market value of the land awarded by the Land Acquisition Court on account of the increase in the potentialities of the land.
The basis adopted by the High Court is challenged on the ground that they are contrary to the well established principles applicable for determining the value of lands acquired under the Act.
The general principles for determining compensation have, been set out in sections 23 & 24 of the Act.
The compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, bat as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to award compensation is bound to 212 make an estimate judged by an objective standard.
The land acqui red has, therefore, to be valued not only with reference to its condition at the time of the declaration under section 4 of the Act but its potential value also must be taken into account.
The sale deeds of the lands situated in the vicinity and the comparable benefits and advantages which they have, furnish a rough and ready method of computing the market value.
This, however, is not the only method.
The rent which an owner was actually receiving at the relevant point of time or the rent which the neighbouring lands of similar nature are fetching can be taken into account by capitalising the rent which according to the present prevailing rate of interest is 20 times the annual rent.
But this also is not a conclusive method.
This Court had in Special Land Acquisition Officer, Bangalore vs T. Adinarayan Setty(1), indicated at page 412 the methods of valuation to be adopted in ascertaining the market value of the land on the date of the notificatioa under section 4(1) which are : (i) opinion of experts, (ii) the price paid within a reasonable time in bona fide transactions of purchase ,of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and (iii) a number of years ' purchase of the actual or immediately prospective profits of the lands acquired.
These methods, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive as near as possible an estimate of the market value.
In arriving to a reasonably correct market value, it may be necessary to take even two or all of those methods into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent or the potentially nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.
Bearing these principles in mind, we do not think that the High Court was justified in adopting the registered sale deed, Ex.
C 1 executed by the Ranchi Club, in favour of the President of India, because that land is farther away not only from the, land acquired but from the town though it is on the main RanchiChaibasa Road.
Even the High Court recognised that there was no definite data for the two additions that have been made and in our view it would not be a proper method of ascertaining the value of the land 'acquired.
The only two documents that may be considered are Ex.10 and Ex 11 which are in respect of the lands situated in the vicinity and on either side of the land ac quired.
The other sale deeds are of smaller areas and do not furnish a proper basis for ascertaining the market value and have been quite properly not relied upon by the learned Advocate for (1) (1959) (Supp1. 1) S.CR.
213 the claimants ' The annual rental value of the land acquired, namely, Rs. 7 200/ will also not furnish a proper method of computation because that was a rent fixed in 1944 when that land was not of such great value as it had acquired at the time when sec.
4 notification was issued.
A perusal of the correspondence between the owners of the land and the Deputy Commissioner of Ranchi would show that the land owners had given it at consessional rate to ' the Military authorities having regard to the purpose for which it was being put to use.
On behalf of the claimants great reliance is placed on Ex.11 which is a sale deed executed on 16 12 1946 by the claimants the Ranchi Automobiles of an area of 1 bigha 17 kathas equal to .617 acres for Rs. 1,45,000/. After deducting Rs. 15,403/ the price of the structures according ;to the Engineer 's report in 1959 (Ex 25), the net value of the land is Rs. 1,29,697/ .
This value would work out to Rs. 2,08,135.70 per acre.
The High Court rejected this computation on the ground that though the land was contiguous to the land under acquisition, neither the value of the pump and the other structures belonging to Burmah Shell nor the value of the structures that might have been on the land on the date of the sale which were built by the vendees as lessees could be ascertained either from the sale deed or the evidence.
Ex.10 is a lease in respect of 1/3 acre granted by the owners to Thakur Chandra Bali Shah and others executed on 20 2 1950 on a monthly rent of Rs. 157/ .
The High Court calculated the monthly rental of the land under acquisition at that rate to be not less than Rs. 2,000/ per month or Rs. 24,000/ per year.
On the basis of 20 times the annual rent if computed Rs. 4,80,000/as the market value which works out at Rs. 1,03,226/per acre.
It is, however, pointed out on behalf of the claimants that the High Court made a mistake in thinking that the rent for the land leased under Ex.10 was Rs. 157/ p.m. and on that basis it calculated the annual rental value of 4.65 acres of the ' acquired land.
We have checked the figures from the original lease and find that in fact the rent is Rs. 175/ and not Rs. 157/ .
On this basis the rate per acre of 20 times annual rental value would come to Rs. 1,26,000/ .
Even if exhibit 11 is to be taken as, the basis and ,the value of the structures as given by the Engineer in Ex.25 is to be accepted that cannot furnish a proper basis because the land in question is a small area of .617 acres or just over 1 an acre.
A smaller area such as this on a main road Would certainly fetch a higher price compared to a larger un developed area even though it may have a frontage on the main road.
In order to develop that area atleast the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities.
On this basis, the value of the land at Rs. 2,08,135.70 per acre would, after deduction of 1/3 come to Rs. 1,38,757/per acre.
On the basis of the rental of Rs. 175/ p.m. in Ex.10, 214 the value at 20 times the rental will work out as already seen at Rs. 1,26,000/ .
Allowing for an increase in rents from 1950 to 1954, the date of section 4 notification, say at 5% the value per acre may be Rs. 1,33,000/ or thereabout.
If we take the average of Ex.10 and Ex.11 as computed by us the value per acre would come to about Rs. 1,35,878/ .
In our view, Rs. 1,35,000/ per acre would be a reasonable rate at which compensation could be awarded to the claimants.
The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately.
The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhotanagpur as compensation for severance merely because there was an entrance to the land.
When a portion left out there would be a diminution in the value of ;the land that is left out for which some compensation has to be allowed.
The 5% allowed by the Judicial Commissioner, Chhotanagpur is reasonable.
In this view, the claimants would be entitled to a decree as follows in respect of the lands acquired : (1) At the rate of Rs. 1,35,000 per acre for 4.65 acres; (2) 5% severence and 15% solatium on the market value computed as in (1); (3) Interest at 6% from the date of taking possession.
The appeals of the claimants are allowed to the extent of the variation and those by the Government are dismissed with costs.
The claimants will be entitled to proportionate costs on the difference between the amounts decreed and those that are now awarded in each of the two appeals filed by them.
K.B.N. 864SupCI/72 2500 12 4 73 GIPF.

summary/full:
According to the general principles set out in sections 23 and 24 of the Land Acquision Act, 1894, for determining compensation, the compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonable expect to obtain from a willing purchaser; but since it may not be possible to ascertain this with any amount of precision the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard.
The land acquired, has, therefore, to be valued not only with reference to its condition at the time of the declaration under section 4 of the Act, but its potential value also must be taken into account.
This Court has laid down the methods of valuation to be adopted in ascertaining the market value of the land on the date of the notification under section 4, which are : (i) opinion of experts (ii) the price paid within a reasonable time in bona fide transactions of the purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
These methods, however, do not preclude the Court from taking any other special circumstance into consideration, the requirement being always to arrive as near as possible an estimate of the market value.
In arriving at a reasonable correct market value it may be necessary to take even two or all these methods into account in as much as the exact valuation is not always possible as no two lands may be same either in respect of the situation or the extent or the potentiality, nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.
[211 H] Special Land Acquisition Officer Bangalore vs T. Adinarayan Setty, [1959] Supp.
1 S.C.R. 404, referred to.
In the present case, the High Court was not justified in adopting the sale deed in respect of a land which was farther away not only from the land acquired, but from the town.
The annual rental value of the land acquired, based on the rent fixed in 1944 when that land was not of such great value as , it had acquired at the time when section 4 notification was issued, would also not furnish a proper method of computation.
The High Court was not justified in giving 10 per cent towards potential value, be.
cause, that element was inherent in the fixation of market value of the land and could not be assessed separately.
The High Court was also not justified in disallowing 5 per cent awarded by the Judicial Commissioner Is compensation for severance merely because there was an entrance to the land.
When a portion of the land is acquired and a large portion left out there would be diminution.
in the value of land that is left out for which some compensation has to be allowed.
[214 B]


judgement:
No. 77 of 1972.
Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus.
section K. Dhingra, for the petitioner.
Dilip Sinha and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
The District Magistrate, Howrah passed on June 12, 1971 the impugned order of detention under sub section
(1) read with sub section
(3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 directing the petitioner 's detention thereunder.
The order stated that the District Magistrate was satisfied that it was necessary to do so in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
On June 13, 1971, the petitioner was accordingly arrested and detained in Dum Dum Central Jail.
676 The grounds of detention served on the petitioner at the time of his arrest read as follows : (1) On 17 8 70 at about 02.00 hours, you and your associates Bhaja alias Tarapada Ghosh, Bablu, Kartic and others attacked the members of R.G. Party who were on duty near Jatadhari Park by hurling bombs towards them.
When chased by them, you and your associates again hurled bombs towards them and managed to escape and thereby disturbed public order.
(2) On 10 4 71 at about 16.00 hours, you and your associates being 'armed with sword assaulted one Basudeb Laha of 56/18, Banarjee Bagan Lane.
at Sambhu Halder Lane near Jatadhari Park causing injuries on his person.
When objected by the members of the public, you also terrorised them by brandishing the sword.
(3) On 1 5 71 at 15.00 hours, you and your associates Tapan, Kartic and others being armed with bombs and other deadly weapons demanded money from one Banshi Show of 28, Haraganj Road, P.S. Malipanchghora.
When refused, you and your associates assaulted him.
The local people and the neighbouring shop keepers objected.
At this you and your associates became more violent and terrorised them by throwing bombs towards them.
Con sequently they became panicky and fled away.
Sub section
(1) read with sub s, (3) of section of the Act authorises inter alia a District Magistate to direct detention of any person in respect of whom be is satisfied that such detention should be ordered with a view to prevent him from acting prejudicially to the security of the State of West Bengal, or the maintenance of public order.
Sub section
(2) of section 3 contains a special definition of the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" to mean the acts enumerated in cls.
(a) to (e) thereof.
(d), which is the only relevant clause for purposes of this petition provides as follows: "(d) committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the or the , where the commission of such offence disturbed, or is likely to disturb, public order.
" 677 It is not disputed that the petitioner 's alleged activities set out in grounds ( 1 ) and (3) of the said grounds of detention fell under cl.
(d) being offences under the , and also being such that they did or were likely to disturb public order.
The only contention raised for our determination was that activities set out in ground No. (2), namely, causing injuries with a sword.
would constitute an offence under section 324 of the Penal Code, an offence neither punishable with death, nor life imprisonment, nor imprisonment for a term of seven years.
Therefore, ground No. (2) would be, it was urged, a ground which would not fall under the said definition, and would, therefore, be an extraneous ground rendering the impugned order invalid.
The contention in our view has no substance as the offence alleged in ground No. (2) would fall under cl.
(d) of section 1 (2) of the Act inasmuch as it will be one, punishable under the , LIV of 1959.
Under section 2(1) (c) of the , the word 'arms ' inter alia means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharpedged and other deadly weapons.
A sword is thus arms I within the meaning of this definition.
3 of the Act then prohibits, among other things, possession of firearms or ammunition except under a licence issued under the Act or the rules made thereunder.
So far as arms, other than firearms, are concerned, section 4 empowers the Central Government, if it is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest, that acquisition,.
possession or carrying of arms, other than firearms, should also be regulated, it may by notification direct that this section shall apply to the area specified in such notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification, except under a licence issued under the provisions of the Act or the rules made thereunder.
Once, therefore, such a notification is issued under the Act or the rules made thereunder, and that notification specifies any arms, e.g. a sword, possession of or carrying such a sword without licence in the specified area would be an offence under the .
25 (1) (b) provides that whoever acquires, has in his possession or carries in any place specified by notification under section 4 'any arms of such class or description as have been specified in that notification in contravention of that section shall be punishable with imprisonment for a term which may extend to three 1 years, or with fine or with both.
It, however, appears that no such notification as contemplated by section 4 of the 1959 Act has been issued.
But, in 1923 such a 678 notification bearing reference No. Political (Police) Department Notification No. 787 PL, dated March 9, 1923 was issued under section 15 of the earlier Indian , XI of 1878, which was in terms similar to section 4 of the present Act.
The question is, whether Act XI of 1878 having been repealed, the said notification issued under section 15 thereof can still be said to be operative ? Sec.
46(1) of the repealed the preceding Act of 1878.
Its sub section
(2) provides that notwithstanding such repeal and without prejudice to sections 6 and 24 of the General Clauses Act, X of 1897 a licence granted under the repealed Act and in force immediately before the commencement of the new Act shall continue, unless sooner revoked, for the unexpired period for which it had been granted or renewed.
46(2) thus saves only licences issued under the .
Sec. 6(b) of the General Clauses Act, however, provides that where any Central Act or regulation made after the commence ment of the Act repeals any earlier enactment, then, unless a different intention appears, such repeal shall not "affect the previous operation of any enactment so repealed or anything duly done or suffered hereunder".
24 next provides that where any Central Act is repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any notification issued under such repealed Act shall, so far as it is inconsistent with the provisions re enacted, continue in force and be deemed to have been made under the provisions so re enacted unless it is superseded by any notification or order issued under the provisions so re enacted.
The new Act nowhere contains an intention to the contrary signifying that the operation of the repealed Act or of an notification issued thereunder was not to continue.
Further, the new Act re enacts the provisions of the earlier Act, and section 4 in particular, as already stated, has provisions practically identical to those of section 15 of the earlier Act.
The combined effect of sections 6 and 24 of the General Clauses Act is that the said notification of 1923 issued under section 15 of the Act of 1878 not only continued to operate but has.
to be deemed to have been enacted under the new Act.
Possession of arms, such as a sword without a licence or contrary to the terms and conditions of such a licence would thus be an offence punishable with imprisonment under the .
Though the possession of and carrying a sword were alleged to have been committed in 1970, that is, after the repeal of the Arms Act, 1878, the said notification of 1923 issued under the repealed Act would, despite its repeal, continue to be in force and its provisions would be deemed to have been enacted under the new Act by virtue of section 24 of the General Clauses Act.
679 This was the construction placed upon these two sections by this Court in the Chief Inspector of Mines vs Lala Karam Chand Thapar,(1) where the question as to the meaning of section 24 of the General Clauses Act arose.
In that case, the directors of a colliery company and its managing agents were prosecuted under the for violation of Coal Mines Regulations of_ 1926 made under Mines Act, 1923, which was repealed by 1952 Act.
Repelling the contention that the prosecution in respect of the violation of those Regulations made under the repealed Act was unauthorised and invalid, the Court construed section 24 of the General ' Clauses Act to mean that when an earlier Act is repealed by a later Act, which re enacted the provisions of the earlier Act, Regulations framed under the repealed Act continue in force and are deemed to have been made under the provisions so re enacted, and must be so construed as to have continuity of force, and are to be regarded as laws in force at the date of the offence within the meaning of article 20(3) of the Constitution.
In that case, the breach of those Regulations took place before the commencement of the new Act.
Even then the prosecution under the new Act was held to be valid on the ground that the Regulations were deemed to have, been made under the new Act.
In the present case, the offence of being in possession of and carrying a sword without licence took place after the commencement of the new Act of 1959.
The said notification, by virtue of section 24 of the General Clauses Act having to be deemed to have been made under section 4 of the , the notification was in force on the date of the alleged offence.
The offence thus fell under the , and that be ing so, acts set out in ground No. (2) were covered by cl.
(d) of section 3(2) of the Act.
Consequently, that ground cannot be said to be extraneous to the Act.
This being the only contention arising for our consideration and it having failed, the petition fails and is dismissed.
K.B.N. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The combined effect of section 6 and 24 of the General Clauses Act is that a notification of 1923 issued under section 15 of the Arms Act, 1878 prohibiting the acquisition, possession or carrying of arms other than fire arms without a licence, not only continued to operate but has to be deemed to have been enacted under the , which repealed and re enacted the provisions of the earlier Act.
The 1959 Act nowhere contains an intention to the contrary signifying that the operation of the repealed Act or of a notification issued thereunder was not to continue.
[678C F] A sword is arms within the meaning of the definition of arms ' in section 2(1)(c) of the .
In the present case though the offence of being in possession and carrying a sword without licence took place after the commencement of the new Act of 1959, the notification issued under the Act of 1878 was in.
force, by virtue of section 24 of the General Clauses Act, on the date of the alleged offence.
The offence thus fell under the arms Act, 1959, and that being so, the acts set out in the grounds of detention served on the petitioner were covered by clause (d) of section 3(2) of the West Bengal (Prevention of Violent Activities) Act, 1970.
[677D H; 678G H; 679F]


judgement:
minal Appeal No. 176 of 1969.
Appeal from the Judgment and order dated November 12, 1968 of the Assam and Nagaland High Court in Criminal Revission No. 73 of 1968.
K. P. Gupta, for the appellant V. A. Setyid Mahmud and section K. Nandy, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
Prior to August 15, 1947, the respondent was in the service of the Government of Assam as, an unarmed Police Constable bearing No. 407, serial No. 29.
On partition, he opted for service in Pakistan.
Consequent on his exercising such option, the Assam Government passed an order No. 2155, dated December. 31, 1947, releasing him ' from service 'and directing him to report to the Inspector General of Police, Dacca for service there.
The respondent thereafter went to the then East Pakistan and joined Pakistan Government service as a peon in the sub registrar 's office at Fenchugani, District Sylhet.
He entered India on December 23, 1953 on the strength of a Pakistani passport, dated September 10, 1953 and an Indian visa dated November 11, 1953.
He appears to have returned,to Pakistan on April 25, 1954.
, On January 27, 1955, he again applied for and obtained an Indian visa which was valid upto January 26, 1955.
On the strength of that visa, he entered India on April 4, 1955.
Instead of returning to Pakistan, he overstayed 'beyond January 26, 1955 until he was detected on October 9, 1964 in the village Niargram, Salchar Sub Division in the house of one Tozamul Ali Majumdar.
He had at that time no permit as required by cl. 7 of the Foreigners Order, 1948, as amended in 1959.
He was consequently arrested and prosecuted under sec.
14 of the read with cl. 7 of the Foreigners Order, 1948.
The Additional District Magistrate, Silchar convicted him under cl. 7 of the Foreigners Order read with section 14 of the and sentenced him to rigorous imprisonment for a period of six months and directed that he should to deported from India after he had served out the sentence.
On appeal by the respondent against the said order of conviction and sentence, the Sessions Judge, Silchar upheld the said order of conviction and sentence.
In the revision application filed by him in the High Court of Assam and Nagaland, the High Court, relying pip Fidea Hussain vs U.P.(1), reversed the said order of conviction and sentence and (1) ; 687 accepting the revision acquitted him.
The reasoning adopted by the High Court was that as in the case of Fida Hussain(1) the respondent was a natural born British subject, that being so he was at 'the date of his entry in India in April 1955 a citizen of India under article 5 of the Constitution and that he was governed by the definition of a foreigner in the before that Act was amended in 1957.
Before the said amendment, a foreigner as defined by section 2(a) meant a person who: (i) is not a natural born British subject as defined in sub sections (1) and (2) of sec.
I of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in India, or (iii) is not a citizen of India.
The High Court felt that the respondent fell under cl.
(i) of the said definition and therefore was not a foreigner when he entered India in April 1955 (i.e., before the definition was amended in 1957) and was not, therefore ' required to obtain a permit under cl. 7 of the Foreigners Order, 1948.
According to the High Court, if the amended definition applied to the respondent it would be the Central Government and not a court of law which could under the be the appropriate authority to deal with such questions.
In our view the reasoning adopted by the High Court, of which the basis was the decision in Fida Hussain 's case(1) was not valid as the High Court omitted to take into account the fact of the respondent having left India for Pakistan in August 1947 after he has opted for service in Pakistan.
The defence of the respondent was that he was born in India, that he owned a house and lands in India and was therefore a citizen of India within the meaning of article 5 of the Constitution.
There is, however, the fact established by the record in this case that in 1947 he opted for Pakistani service, and that he left India for Pakistan where he obtained service as a peon and that he lived there from 1947 to 1953 when he came to India on a short visit on the strength of a Pakistani passport and a visa and then returned to Pakistan.
Under article 7, notwithstanding anything in article 5, a person, who has after the first day of March 1947, migrated from the territory of India to the territory included in Pakistan shall not be deemed to 'be a citizen of India.
If article 7 applied to this case (1) ; 688 the respondent would not be deemed to be a citizen of India notwithstanding his complying with the conditions of article 5.
It is quite clear from H.P. vs Pear Mohammad(1) that it would be article 7 and not the which would apply to a case where a person has migrated to Pakistan between March 1, 1947 and January 26, 1950 when the Constitution came into force.
If article 7 were to apply it is clear that the court and not the Central Government or its delegate which would have jurisdiction to deal with the question whether the person concerned is a foreigner to be dealt with under the .
The crucial point in the case, therefore, was whether the respondent had migrated to Pakistan between March 1, 1947 and January 26, 1950.
If he did, then notwithstanding his complying with the requirements of article 5, his case would fall under article 7 and he would be deemed not to be a citizen even on the date of his entry in India on April 4, 1955.
What then is the connotation of the word 'migrated ' within the meaning of article 7 in Kulathil Mammu vs Kerala(1), this Court interpreted article 7 and held that the word 'migrated ' was capable of two meanings.
In its narrower connotation it meant going from one place to another with the intention of residing permanently in the latter place; in its wider connotation it simply meant going from one place to another whether or not with the intention of permanent residence in the latter place.
in article 7 the word was used in its wider sense though it did not take in movement which was in voluntary or for a specific purpose and for a short and limited period.
Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as a peon in the sub registrar 's office, his staying there thereafter for a long period, his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile, there can be no doubt that he had gone to Pakistan permanently.
His movement to Pakistan thus was neither involuntary nor for a short or limited period, but was clearly with the definite intention of having a permanent place of abode there.
His case thus fell within article 7 and therefore on his entry in India on April 4, 1955 he was a person who wag deemed not to be a citizen of India.
In Fida Hussain vs U.P. (3), the question of the applicability of article 7 did not arise and was not considered presumably because it was not contended that Fida Hussain had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950.
The Court, therefore, considered only cl.
(1) of section 2(1) of the Foreigners Act, 1945 and not its cl.
(3) as it (1) [1963] Supp. 1 S.C.R. 429 (3) ; (2) ; 689 stood before its amendment in 1957.
It appears that the only date available there was the date of his entry in 1953, when the unmended definition prevailed.
It could not, therefore, be said there that he had migrated from India between March 1, 1947 and January 26, 1950, and that therefore, he would be deemed not to be a citizen of India under article 7.
In our view, the High Court could not have relied on Fida Hussain 's case (supra) for its conclusion that the respondent was not a foreigner in April 1955, and that therefore, Cl. 7 of the Foreigners ' Order could not apply to him.
Cl. 7 of the Foreigners ' Order 1948 by its sub cl.
(1) requires every foreigner who enters India on the authority of a visa to obtain a permit from the relevant authority indicating the period during which he is authorised 'to remain in India.
The visa obtained by the respondent permitted him to stay in India till January 26, 1956.
If he wanted to stay beyond that period, it was incumbent on him as provided by sub cl.
(3) of cl. 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa.
In the absence of such an extension he was bound to depart from India on January 26, 1956.
Admittedly he did not, but on the contrary continued to remain in India, until he was detected in 1964.
Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957.
But whether the respon dent was exempted under that order or not is entirely irrelevant for the purposes of cl. 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a foreigner entering India under a visa does not overstay 'beyond the period for which the visa permits him to stay in this country.
By overstaying here without the required extension the respondent clearly violated the provisions of cl.
7(1) and (3) of the Foreigners ' Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this country, and therefore, a foreigner even under the definition of a foreigner in sec.
2 of, the Foreigners Act before it was amended in 1957.
The decision in State vs Ibrahim Nabiji(1) referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal, that is with regard to a person who, notwithstanding article 5, is to be deemed not to be a citizen under article 7, and therefore, a foreigner within the meaning of sec.
2(a) of the Foreigners Act as it stood in 1955.
The State vs Akub (2 ) another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of cl. 7 of the Foreigners ' Order, 1948 are (1) A.I.R. 1959.
(2) A.I.R. 1961 All.
690 persons who are.
not citizens of India, and that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after, their entry by reason of the amendment of the definition in.
This decision again cannot assist the respondent in, view of our concluSion with regard to article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India.
In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of cl. 7 of the Foreigners ' Order, 1948 and was liable to be punished under section 14 of the .
He was, therefore, rightly convicted and sentenced by the Trial Magistrate.
The High Court, in our view, erred in setting aside that order of conviction and sentence.
The appeal by the State is, therefore, allowed and the order of the Trial Court is restored.
S.C. Appeal allowed.

summary/full:
Prior to 1947, the respondent was in the service of the Government of Assam as an unarmed Police constable and on partition, he opted for service Pakistan.
The respondent went to the then East Pakistan and joined Pakistan Government service as a peon.
He entered India in 1953 on the strength of a Pakistani passport but returned to Pakistan in 1954.
Again in 1955, he obtained an Indian visa which was valid upto January 26, 1955.
On the strength of that visa, he entered India but instead of returning to Pakistan, he over stayed until he was detected and arrested.
He was then prosecuted under section 14 of the read with Clause 7 of the Foreigners Order, 1948.
The Additional District Magistrate Convicted and sentenced him and the Sessions Judge also upheld the said order of conviction and sentence.
In a revision application, the High Court, relying on Fida Hussain vs U.P., ; , reversed the said order of conviction and sentence and acquitted him on the ground that he was not a 'foreigner ' under section 2(a) of the , but was a citizen of India under article 5 of the Constitution; when he entered India in 1955 (before the said definition was amended in 1957.
Allowing the appeal, Held :(1) The respondent was a foreigner when he entered India in 1955 as the definition of 'foreigner ' then stood and by overstaying beyond the period permissible under the visa, he clearly committed breach of Clause 7 of the Foreigners Order, 1948 and was liable to be convicted under section 14 of the .
(690B C] The crucial point in the present case, was whether the Respondent had migrated to Pakistan between 1947 and 1950.
If he did, then notwithstanding his complying with the requirement of article 5, his case would fall under article 7 and he would be deemed not to be a citizen even, on the date of his entry in India in 1955.
Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service, as a constable, his going to Pakistan and obtaining service there as a peon, his staying there for a long period; his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile etc; there could be no doubt that he had gone to Pakistan permanently.
His case thus fell within article 7 and therefore, at his entry in India in 1955 he was a person who was deemed not to be a citizen of India.
[688C G] H. P. vs Peer Mohammad, , Kulathil Mammu vs Kerala, ; , State vs Ibrahim Nabiji, A.I.R. 1959 Bom.
526 and State vs Akub, A.I.R. 1961 All. 428, referred to. 686


judgement:
Appeal No. 742 of 1967.
Appeal from the judgment and decree dated April 4, 1960 of the Madras High Court in Appeal No. 334 of 1956.
M. Natesan, K. section Subramanian and K. Jayaram, for the appellant.
A. V. Rangam and A,.
Subhashini, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by Certificate from a judgment of the Madras High Court.
The appellant 's predecessor in office T. G. Kuppuswamy Iyer filed on April 14, 1950 a suit in the District Court, Madurai, under section 84(2) of the Madras Hindu Religious Endowments Act, 3 L152SupCI./7 586 (Act 11 of 1927) against the respondent and two other persons who are not parties to the appeal for a declaration that the suit Mandapam was a private Mandapam, i.e., family property of Thoguluva Thirumalier and was not a temple covered by the provisions of the aforesaid Act.
This suit had to be instituted because the authorities appointed under the Madras Act 11 of 1927 held that the premises No. 29 South Masi Street, Madurai wherein the idol of Sri Srinivasaperumal and certain other idols Were located was a temple within the meaning of the said Act.
The District Judge decreed the suit in favour of the appellant but the High Court, on appeal, reversed that judgment and passed a decree holding that the premises constituted a temple.
The appellant thereupon filed a petition for leave to appeal to this Court but the High Court refused to grant the certificate.
The matter was brought to this Court.
By a judgment which is reported in T. D. Gopalan vs Commr. of Hindu Religious & Charitable Endowments, Madras(1) this Court directed that the subject matter of the dispute should be ascertained with reference to the claim made by the plaintiff in his plaint.
Consequently the valuation of the property should have been done according to the claim made in the plaint, namely, that the property was private pro perty of the family capable of alienation.
Thereafter the High Court granted a certificate on determination of the value of the suit property.
The only question which had to be decided by the District Court and the High Court was whether the property in dispute was a private Mandapam and not a public temple.
The District Judge appointed a Commissioner to submit a report regarding the physical features of the property.
The Commissioner reported that the suit premises was a temple and in front of it there was a Garbha Graha on either side.
There were two stone idols called Dwarabalakas.
The implements necessary for offering puja were also found by the Commissioner.
But there was no Dwejasthamba, Balipeeda or Gopuram.
There is no dispute, that the premises where the temple is situ.ate originally belonged to one Kuppiyan.
A decree was obtained by Tirumalaiyyan against Kuppiyan and in execution of that decree the property was put to sale by public auction.
It was purchased by Tirumalaiyyan in 1885 (vide Ext.
B 1 extract from the suit register dated 14 1 1885).
The title to the property thus vested in Tirumalaiyyan and the members of the family who later on came to be known as Thoguluva family.
The case laid in the plaint was that the Mandapam came to be constructed on the suit property by the members of that (1) 5 87 family which belonged to what is known as the Saurashtra community in Madurai town.
It was a private Mandapam which was in the exclusive and absolute control of the said family and worship was performed there for the spiritual benefit of the members of the Thoguluva Tirumalaiyyam family.
, It is common ground that at all times the management and control over the Mandapam was with some or other members of the Thoguluva family.
In 1932 or 1933 some shops in the eastern and western side of the Mandapam were constructed for which the Municipality levied a tax which had been paid by the members of the Thoguluva family which was in the management of the temple.
The learned District Judge 's approach to the appreciation of the evidence, oral as well as documentary, was on the prin ciple that once the private character of the temple was established more strong proof was necessary to hold that the temple was subsequently dedicated to the public; (Babu Bhagwan Dill & Others vs Gir Har Saroop & Others(1).
He considered the evidence produced by the parties and, in particular, carefully analysed the evidence led on behalf of the defendants according to whom the Mandapam was a public temple.
While discussing the evidence of each of the witnesses the learned judge gave detailed reasons for accepting or rejecting the evidence of a particular witness.
Before him the defendant had sought to establish the dedication of the temple to the public by producing evidence on the following points : (1) Subscriptions were collected by G. Rama Ayyangar and his descendants from the public because the members of the Thoguluva family stopped giving any financial help to the temple; (2) Shops in the front Mandapam were constructed with public donations and even for the Kumbabishekan public funds were collected; (3) D.W. 6 who did not belong to the Thoguluva family was doing the Mandagapadi; (4) There used to be a procession on Vaikunta Ekadasi day the expenses of which were met by D.W. 7; (5) There were jewels and other articles used for worship donated by members of public which were in the custody of Srimathigal Sangam; (6) On each of the Navaratri days people who did not belong to the Thoguluva family did the Ubhayam; (7) The worshippers had been making offerings during the daily pooja as of right and were participating in the daily Neivedyams, (8) That there was a Nagara, bell and Hundial in the suit temple; (9) That there was Utsava idol in the suit Mandapam, The learned District Judge found : D.Ws. 3, 4 and 8 who belonged to the Thoguluva family had played into the hands of the opposite camp.
(ii) D.W. 3 was disbelieved mainly because 67 I.A.P.I. 588 he claimed that he was the Manager for some time and that he had handed over all the charge papers and account books to the plaintiff at the meeting at which the plaintiff was appointed manager.
But in a previous tatement Ext.
A 17 he had admitted that there was no record to show that he had handed over the charge to the plaintiff.
(iii) The burden of proving that donations were collected from the public was on the defendants as they were seeking to establish dedication of a temple which was once private in character.
There was no satisfactory evidence that donations had ever been collected from members of the public.
2 and 6 who claimed to have made such contribution could not produce any account books which contained any such entries although they were running trade and business.
(iv) There were clear contradictions in the statements of DWs.
4 and 8 on some material matters and therefore their evidence could not be relied upon.
(v) The evidence of P.W. 1 read with the recitals in Ext.
B 5 negatived any inference of any public donation having been collected for the building of the shops or for the Kumbabishekam.
(vi) The statements of DWs.
7 & 8 when considered in the light of the other evidence did not establish that the deity was taken out in a procession as alleged by the defendants.
(vii) It had not been satisfactorily proved that any non Thoguluva performed any of the Mandagapodies on Navaratri day or that any monies were so collected for taking the deity in procession on Vaikunta Ekadasi day.
(viii) The evidence of D.Ws. 2 and 6 on the question of the expenses of the Nagara, bell and Hundial was negatived by the absence of their mention in the report of the Commissioner.
There was no mention of the Hundial even in some earlier affidavits or petitions.
(ix) Even defendants 2 and 3 did not say in their written statements that there had been any user of the temple by the public as of right.
They had only asserted that members of the Saurashtra public were worshipping there as of right.
It was pointed out by the learned judge that a temple worshipped even by a section of the public would be a public temple but the evidence which had been produced on behalf of the defendants was to the effect that any member of the public whether a Saurashtra or a non Saurashtra had a right to workship there.
The case as laid in the pleadings and as developed in the evidence was thus inconsistent.
The High Court observed that the origin and history of the shrine could not be traced with any degree of continuity owing to the paucity of the evidence on the record.
Reference was, however, made to the auction sale.
It was not disputed before the High Court that the property formed the subject matter of the court sale comprised the suit property.
Before the High 589 Court the plaintiff relied on Ext.
B 1 for two purposes : (1) It showed that the property was private secular property and (2) the title to the property became vested in Thoguluva Tirumalliyan and members of his family.
The observation of the High Court on these contentions was, "the document, Ext.
B 1 (a) lends considerable support to these contentions of the plaintiff".
The High Court, however, proceeded to note that in the description of the property in Ext.
B 1 there was a mention of Garbha Graha Prakaram and vacant site etc.
These terms were generally associated with only public temples.
According to the High Court there was no evidence to show how the worship at the shrine was conducted and who provided the necessary funds and further how the property was treated by the public authorities like the Government or the Municipality.
It was common ground, however, that the shrine was a popular one at least among the members of the Saurashtra community and that Nithyapadi pooja was being performed at the shrine just as in public temples.
Par ticular reference was made by the High Court to the expenses of stone images which were to be installed in the suit premises in 1947 the offer of the gift having been made by persons who did not belong to the Thoguluva family.
In Ext.
B 4 the donors offered to make three stone images at their cost and also offered a sum of Rs. 350/ for meeting all expenses in connection with the installation of newly made idols and the various ceremonies which were to be performed in connection with the same.
An invitation Ext.
B 5 was issued in that connection for a Mahakumbabishakam to be celebrated on January 27, 1947.
In this, invitation the plaintiff styled himself as the Honorary Secretary.
The donors were described therein as the Udhayadars.
On March 17, 1947 the plaintiff wrote to the donors requiring them to pay Rs. 100/ every month towards the pooja at the shrine.
This demand was said to have been made on the basis of the alleged agreement on the part of the donors to furnish the necessary expenses for running the institution after the images were duly installed.
The High Court felt that it was difficult to conceive of the owner of a private temple receiving gifts of images from strangers and installing them in his temple; and it was impossible to reconcile the demand for contributions with the claim that the temple was a private one.
The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants.
No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross examination of a particular witness as to why he should have made a false statement.
We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed 590 reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court.
We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants.
It seems that the approach of the High Court was also some what influenced by the observations of the Judicial Committee of the Privy Council in Mundancheri Koman vs Achuthan Nair & Others(1) that in the greater part of the Madras Presidency private temples were practically unknown and the presumption was that the temples and their endowments formed public religious trusts.
This was, however, not the case in Malabar where large tarwads often established private temples for their own use.
Finally the High Court held that the temple was a public temple.
After stating some other facts which were found, presumably after believing the evidence produced by the defendant, the High Court made two observations which may be reproduced : (1) "Admittedly the members of the public have been worshipping at the shrine without let or hindrance.
The evidence on record shows unmistakably that this temple was being run only by contributions and by benefactions obtained from members of the public." Mr. Natesan who appears for the plaintiff appellant has assailed the whole approach of the High Court to the question of the character of the temple which, according to him, had been proved to be private in origin.
It has been contended by him that the usual state of affairs to be found in Madras as per the observations of the Privy Council could not be applied to the case of Saurashtra community which migrated from the territories which now form part of the State of Gujarat centuries ago.
This community, has, apart from several other individual characteristics, maintained a tradition of having private temples.
Moreover if the origin of the temple had been proved to be private then according to the law I aid down by the Privy Council itself in Babu Bhagwan Din 's case dedication to the public was not to be readily inferred.
Such an inference, if made, from the fact of user by the public was hazardous since it should not, in general, be consonent with Hindu sentiment or practice that worshippers should be turned away; and, as worship generally implied offer (1) 61 T.A. 405.
591 ings of some kind, it was not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.
It was further emphasised by their lordships that the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
In Goswami Shri Mahalaxmi Vahuii vs Rannchboddas Kalidas & Others(1) it was pointed out that the appearance though a relevant circumstance was by no me= decisive.
The circumstance that the public or a section thereof had been regularly worshipping in the, temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character.
if votive offerings were being made by the public and the expenses were being met by public contribution, it would be safe to presume that the temple was public.
In short the origin of the temple the manner in which its affairs were managed the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private.
Mr. Natesan says that if the evidence of the witnesses pro duced by the District Judge then there will be hardly any features or circumstances barring some of the physical features of the temple and the fact that people have been allowed to worship and take part in the festivals and ceremonies and even to make some offerings, (though without their having the right to worship in the temple) which would be sufficient to make a temple which was private in origin a public temple.
According to Mr. Natesan even the witnesses of the defendants had shown consciousness of the temple beng private.
He has laid a great deal of emphasis on the absence of any property attached to the temple which might be endowed.
He says that admittedly only two shops were build by the family and out of the rents received from those shops together with other contributions made by the members of the family the expenses of the temple were being met.
He has relied a great deal on the decision of a Division Bench, of the Madras High Court in The Madras Hindu Religious En dowments Board vs V. N. D. Ammal(1).
There reliance had been placed on the following features : (1) that when the temple was built in 1919 Kumbabishekam was performed on a grand scale; (2) the respondent had made Utsavamurthis and built Chaprams and the deities were also taken in procession on spe (1) [1970]2 S.C.R. 275. (2) [1953] 2 M.I.J. 688. 592 cial occasions; (3) a Gurukkal had been, engaged to perform the pooja regularly and (4) the temple has got a Gopuram and other features which are usually found in a public temple.
This is what Venkatarama Ayyar J., as he then was, observed : "It is true that the facts that there is an utsava idol and there are processions are generally indicative of the fact that it is a public temple.
But then no property has been dedicated for the upkeep of the temple.
The worship is maintained and the expenses are met from out of the private funds of the respondent.
In the absence of any property being dedicated for the maintenance of worship in the temple, it is difficult to hold that, the temple has been dedicated to the public".
At this stage the provisions of section 9 (12) of the Madras Act 2 of 1927 which defines a temple may be noticed.
According to that definition it is a place by whatever designation known used as a place of public religious worship and dedicated or used as of right by the Hindu community or any section thereof as a place of public religious worship.
In the Madras Hindu Religious and Charitable Endowments Act (Act 22 of 1959) the definition of "temple" is given in sub clause (20) of section 6.
It is practically in the same terms as in the earlier Act.
In our judgment the, High Court was in error in holding that members of the public had been worshipping at the Mandapam in dispute without let or hindrance.
In arriving at that conclusion it appears to have believed the witnesses produced by the defendants.
It has also relied on the principle that in the absence of any evidence to show that such user was permissive it could be presumed that, it was as of right.
We have already pointed out that the High Court, while appraising the evidence of the witnesses, has not discussed the reasons and grounds given by the learned District Judge for not relying on the defendant 's witnesses.
Mr. A. V. Rangam who appears for the contesting respondent has endeavoured to take us through the evidence of the witnesses for demonstrating that the reasons given by the card the testimony of the defendants witnesses.
But we are learned District Judge were neither cogent nor sufficient to disunable to agree with him that the appreciation of evidence by the learned Judge was open to criticism as suggested by him.
Apart from this the High Court did not consider the evidence produced by the plaintiff without which many matters could not be properly appreciated or explained.
The other finding of the ' High Court that the temple was being run by contributions and benefactions obtained from members of the public was also based mainly on the evidence produced by the defendants.
In our 593 opinion the conclusion of the learned District Judge on that point receives more support from the entire material on the record It is significant that the High Court did not attach sufficient importance to three matters which, in the present case, were of material consequence.
The first was that the origin of the Mandapam had been proved to be private.
The second was that its management had remained throughout in the members of the Thoguluva family.
The third was the absence of any endowed property.
There was no Gopuram or Dwajasthamba nor a Nagara bell nor Hundial in the suit temple.
The learned District Judge adverted to the evidence, on all these and other relevant matters and we concur with him in his conclusions.
It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple.
It was also established that persons who were outsiders in the sense that they did not belong to the Thoguluva family used to come and worship at the temple and made offerings there.
There were also some jewels and other articles in the temple.
But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone.
The entire evidence, both documentary and oral, had to be, considered as a whole keeping in view the principles already noticed by us.
We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character.
For all the above reasons the appeal is allowed, the judg ment of the High Court is set aside and that of the District Judge restored.
The appellant will be entitled to costs in this Court.
Appeal allowed.

summary/full:
The members of the family of the plaintiff who belonged to the Saurashtra community had constructed a Mandapam on land of which they were the owners.
There were a Garbha Griha in front of the mandapam, stone idols called Dwarabalakas on either side and implements necessary for offering puja in the mandapam.
But there were no Dwajasthamba, Balipeeda or Gopuram.
The authorities under the Madras Hindu Religious Endowments Act, 1927, held that the mandapam was a public temple within the meaning of the Act.
A suit filed for a declaration that it was a private temple was decreed by the trial court, but in appeal, the High Court held that it was a public temple, on the grounds that, the members of the public had been worshipping at the shrine without let or hindrance, and that the temple was being run only by contributions and by benefactions obtained from members of the public.
Allowing the appeal to this Court, HELD : (1) According to the definition in the Act a public temple is a place by whatever designation known used as a place of public religious worship and dedicated or used as of right by the Hindu community or a section thereof as a place religious worship.
[592C] The Saurashtra community maintained a tradition of having private temples.
in the present case, the management and control over the mandapam was at all times with some or other members of the plaintiff 's family.
The trial court rightly approached the evidence, oral as well as documentary on the principle that once the private character of the temple was established stronger proof was necessary to hold that the temple was subsequently dedicated to the public.
The evidence produced by the parties was carefully considered and analysed, and, in discussing the evidence, the trial court gave detailed reasons for accepting or rejecting the evidence of a particular witness.
[587C E; 590F] The trial court held that thee was no satisfactory evidence that any donations had ever been collected from members of the public; that there was no evidence to establish that the deity was ever taken out in procession or that any person who was not a member of the 'family had ever performed any religious festival in the temple; and that the case set out by the defendant in the pleadings that there had been user of the temple by members of the Saurashtra community was inconsistent with the evidence produced on their behalf to the effect that any member of public, whether a Saurashtra or non Saurashtra, had a right to worship therein.
[587H; 588A C] (2)The High Court was in error in reversing the findings of the trial Court.
No attempt whatsoever was made by the High Court to discuss the reasons which the trial court had given for not accepting the evidence of the defence witnesses.
In the matter of appreciation of evidence if the 585 trial court had given cogent and detailed reasons for not accepting the testimony of a witness, the appellate court, in all fairness to it, ought to deal with those reasons before proceeding to form a contrary opinion.
Apart from this, the High Court did not consider the evidence produced by the plaintiff (appellant) without which matters could not be properly appreciated or explained.
The conclusions of the trial court receive support from the entire material on record, and this Court is not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the trial court for not relying on the evidence of the witnesses produced by the respondents.
[589F H; 590A] (3) The High Court also erred in not attaching importance to the following matters : (a) the origin of the temple had been proved to be private, (b) the management had remained throughout in the members of the appellant 's family, (c) the absence of any endowed property and (d) the absence of Dwajauthamba or Nagara bell or Hundial in the temple.
[592H; 593A B] (4) The origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, the rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors which go to establish whether a temple is public or private.
In the present case,the mandapam had somephysical characteristics and persons which are generally found in a public temple.
It was also published that persons who did not belong to appellant 's family used to worship at the temple and make offerings therein.
There were also some jewels and other articles in the temple.
But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone.
The entire evidence, both documentary and oral, had to be considered as a whole.
[573B E] Babu Bhagwan Din & Others vs Gir Har Saroop & Ors.
67 I.A. 1, applied.
Goswami Shri Mahalaxmi Vahuji vs Rannchboddas Kalidas & ors.
; , , followed.
Mundancheri Koman vs Achuthan Nai & Ors., 61 I.A. 405 and Mad.
ras Hindu Religious Endowments Board vs V. N. D. Ammal, , referred to.