judgement:
N: Criminal Appeal Nos.
97, 98, 99 100 & 101 of 1991.
From the Judgment and Order dated 2.12.1989 of the Karnataka High Court in Criminal R. P. No. 458, 459, 460, 461 and 462 of 1989.
A.S. Bobde, Attorney General, Vinod Bobde and section Sukumaran for the Appellant.
G. Ramaswamy, K.N. Nobin Singh and Ms. Lalitha Kaushik for the Respondents.
M.Veerappa for the State of Karnataka.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leaves granted.
399 These five appeals are from as many similar orders of the High Court of Karnataka at Bangalore dismissing the appellant company 's criminal revision petitions impugning the respective orders passed by the Judicial Magistrate First Class, Gokak holding that the appellants ' complaints against the respondents alleging offence under section 630(l)(b) of the Companies Act by not vacating the Company 's quarters as required by it even more than six months after retirement of the respondents, were barred by limitation and the same could not be taken into consideration.
The first respondent in each of these criminal appeals was appointed on 1.8.1942, 11.6.1945, 24.11.1939, 1.5.1939 and 23.1.1937, respectively.
in the service of the appellant company and they retired on 14.3.1984, 1.10.1983, 12.2.1984, 4.10.1983 and 27.1.1981, respectively, from the appellant company 's service, whereafter each of them was required to vacate his company 's quarter.
Each having declined to vacate the company 's quarter even more than six months after retirement, despite legal notice, the appellant company filed a private criminal complaint under section 630(l)(b) of the and s.406 I.P.C. against each of them, before the Judicial Magistrate First Class, Gokak and in each case, after inquiry framed charges for offences under section 406 I.P.C. and section 630(l)(b) of the .
The learned Judicial Magistrate, after prosecution had examined its witnesses, recorded the statements of all the accused under section 313 of the Cr.
P.C. and despite finding that the accused in each case was allotted a quarter by the company for his use and occupation and each had no authority to retain possession of the same after he retired, and that the cause of action in each case arose when the accused failed to deliver possession of the quarter to the company, held that the documents produced by, the company did not disclose anything regarding the retirement of the accused from the service, but at the same time he recorded that during the course of evidence P.W. 1 had deposed that each of the accused retired from service and immediately after the retirement failed to redeliver possession of the company 's quarter which attracted section 630(l)(b) of the and which was punishable only with fine and the complaint, therefore, ought to have been filed within six months from the date of retirement of the accused, and as the complaint was filed only during the year 1985 it was clearly barred by limitation, wherefore, ,the complaint could not be taken into consideration, and consequently, the accused was to be acquitted.
The Company 's revision petition therefrom was dismissed by the High Court holding that the view taken by the trial Magistrate was plausible and reasonable as the complaint was filed in each case 400 beyond six months from the date of the alleged offence and that the question, of limitation was concluded by a decision of the same High Court in W.M.I Cranes Ltd. vs G.G. Advani & Anr., [19841] Kar.
Law Cronicle 462 wherein it was held that the offence under section 30 (1) of the was not a continuing offence and the decisions of this Court in Bhagirath Kanoria and Ors.
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector & Ors.
and Raja Bahadur Singh vs Provident Fund Inspector and Ors., AIR 1984 SC 1688 would not be of any assistance to the petitioner.
Mr. A.S. Bobde, the learned counsel appearing for the appellant company, submits that the offence under section 630(1)(b) of the is a continuing offence and the learned courts below erred in holding to the contrary and dismissing the company 's complaints on the ground of limitation.
Mrs. Lalitha Kaushik, the learned counsel for each of the first respondent, submits that when the first respondent upon his retirement failed to vacate and deliver possession of the company 's quarter to the company, the offence must be taken to have been complete, and thereafter right could accrue to the first respondent by adverse possession; and that if this state of affairs continued till completion of the period of limitation the company 's right would be extinguished.
The trial court as well as the High Court, according to counsel, rightly held that the offence was not a continuing one.
The only question to be decided in these appeals, therefore, is whether the offence under section 630(l)(b) of the is a continuing offence for the purpose of limitation.
What then is a continuing offence? According to the Blacks ' Law Dictionary, Fifth Edition (Special Deluxe), 'Continuing means "enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences.
" Continuing offence means "type of crime which is committed over a span of time." As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. "A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse." So also a 'Continuous Crime ' means "one consisting 401 of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons.
In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act.
" The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts.
Trespass to land in the English Law of Torts (trespass quare clausum fregit) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon it in each case without lawful Justification.
Trespass by remaining on land, as we read in Salmond and Heuston on the Law of Torts, 19th Edn., page 50: "Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased.
To refuse or omit to leave the plaintiff 's land or vehicle is as much a trespass as to enter originally without right.
Thus any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has been properly terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable time he fails to leave the premises.
" Trespass in Law of Torts may be a continuing one.
The authors write: "That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious.
It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff 's land.
Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive actions will lie from day to day until it is so removed: and in each action damages (unless awarded in lieu of an injunction) are assessed only up to the date of the action.
Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law.
" Again if the entry was lawful but is subsequently abused and continued after the permission is determined the trespass may be ab initio.
In 1610 six carpenters entered the Queen 's Head Inn, Cripplegate, and consumed a quart of wine (7d.) and some bread (1d.), for which they refused to pay.
The question for the court was whether 402 their non payment made the entry tortious, so as to enable them to be sued in trespass quare clausum fregit.
The court held that: "When entry, authority or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio," but that the defendants were not liable as their non payment did not constitute a trespass.
The rule is that the authority, having been abused by doing a wrongful act under cover of it, is cancelled retrospectively so that the exercise of it becomes actionable as a trespass.
In Halsbury 's Laws of England, 4th Edn.
45 para 1389 it is said: "If a person enters on the land of another under an authority given him by law, and, while there, abuses the authority by an act which amounts to a trespass, he becomes a trespasser ab initio, and may be sued as if his original entry were unlawful.
Instances of any entry under the authority of the law are the entry of a customer into a common inn, of a reversioner to see if waste has been done, or of a commoner to see his cattle.
To make a person a trespasser ab initio there must be a wrongful act committed; a mere nonfeasance is not enough." Against the above background, we may now examine the relevant provision of law, keeping in mind that Some of the Torts have counterparts in Criminal law in India.
Section 441 of the Indian Penal Code defines Criminal trespass as follows: "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass '.
" House trespass is punishable under section 448 of the Indian Penal Code.
It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property 403 with the object Of intimidating,insulting or annoying the person in possession of the property would be criminal trespass.
The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.
The authors of the Code had the following words to say: "We have given the name of trespass to every usurpation,however slight, of dominion over property.
We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person.
Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances.
These aggravating circumstances are of two sorts.
Criminal trespass may be aggravated by the way in which it is committed.
It may also be aggravated by the end for which it is committed.
" Section 630 of the reads as under: "Penalty for wrongful withholding of property.
(1) If any officer or employee of a company (a) wrongfully obtains possession of any property of a company or (b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully 404 obtained or wrongfully withheld or knowingly misapplied,or in default, to suffer imprisonment for a term which may extend to two year.
" Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable under sub sec.
Under sub sec.
(2) knowingly misapplication has also been envisaged.
The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the Court, and in default to suffer the prescribed imprisonment.
The idea of a continuing offence is implied in sub section (2).
Section 468 of the Criminal Procedure Code says: "Bar to taking cognizance after lapse of the period of limitation (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
" The parties have not disputed that this case attracted section 468(1) and (2)(a).
Regarding the fact of the first respondent having retired from service though the trial Magistrate observed that the document did not specifically state that the first respondent retired, when after 405 referring to oral evidence the cause of action under section 630(l)(b) was held to have arisen on the first respondent 's failure to vacate and deliver possession of the company 's quarter and that the period of limitation ran therefrom tantamounted to finding that the first respondent did retire.
"Officer" or "employee" in section 630 of the includes both present and past officers and employees.
In Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 SCC 361 at paragraph 8 of the report this Court said: "Section 630 of the which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act.
The section is in two parts.
Sub section (1) by clauses (a) and (b) creates two distinct and separate offences.
First of these is the one contemplated by clause (a), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled.
Normally, it is only the present officers and employees who can secure possession of any property of a company.
It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property.
This is the function of clause (a) and although it primarily refers to the existing officers and employees, it may also take in roast officers and employees.
In contrast, clause (b) contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act.
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment.
That appears to be one of the functions of clause (b).
It would be noticed that clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act.
That would primarily 406 apply to the present officers and employees and may also include past officers and employees.
There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section ( 1) of section 630 of the Act.
It is quite evident that clauses (a) and (b) are separated by the word 'or ' and therefore are clearly disjunctive." This Court also observed at paragraph 7 of the report that the beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company (a) where an officer or employee of a company wrongfully obtains possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment.
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
"It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
As was reiterated in Amrit Lal Chum vs Devoprasad Dutta.
Roy and Anr.
, reported in ; that "section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
It is the wrongful withholding of such property, meaning the property of the company after the termination of the employment, which is an offence under section 630(1) of the Act.
" What then is the nature of this offence.
The question then is whether it is a continuing offence.
According to Black 's Law Dictionary Revised Fourth Edition, continuing offence means a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy.
In State of Bihar vs Deokaran Nenshi, , the question was whether the failure to furnish returns on the part of the owner of a stone quarry under regulation 3 of the Indian Metalliferrous Mines Regulations, 1926 even after warning from the Chief Inspector was a continuing offences Section 79 of the which provided that no Court shall take cognizance of an offence under the Act unless a complaint was made within six months from the date of the offence 407 and the explanation to the section provided that if the offence in question was a continuing offence, the period of limitation shall be computed wherefore to every part of the time during which the said offence continued Shelat, J. for the court observed: "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all.
It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with.
On every occasion that such disobedience or non compliance occurs and recurs, there is the offence committed.
The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues.
In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." Their Lordships referred to English cases Best vs Butler and Fitz gibbon, ; Verney vs Mark Fletcher and Sons Ltd., [1909] 1 KB 444; Rex vs Yalore, [1908] 2 KB 237 and The London County Council vs Worley, In Best vs Butler and Fitzgibbon (supra) in England, the Trade Union Act, 1871 by section 12 provided that if any officer, member or other person being or representing himself to be a member of a trade union, by false representation or imposition obtained possession of any moneys, books etc.
of such trade union, or, having the same in his possession wilfully withheld or fraudulently misapplied the same, a court of summary jurisdiction would order such person to be imprisoned.
The offence of withholding the money referred to in this section was held to be a continuing offence, presumably because every day that the moneys were wilfully withheld an offence within the meaning of section 12 was committed.
In Verney 's case (supra) Section 10(1) of the Factory and Workshop Act, 1901 inter alia provided that every fly wheel directly connected with steam, water or other mechanical power must be securely fenced.
Its sub section (2) provided that a factory in which there was contravention of the section would be deemed not to be kept in conformity with the Act.
Section 135 provided penalty for an occupier of a factory 408 or workshop if he failed to keep the factory or workshop in conformity with the Act.
Section 146 provided that information for he offence under section 135 shall be laid within three months after the date at which the offence came to the knowledge of the inspector for the district within which the offence was charged to have been committed.
The contention was that in May 1905 and again in March 1908 the fly wheel was kept unfenced to the knowledge of the Inspector and yet the information was not laid until July 22, 1908.
The information, however, stated that the fly wheel was unfenced on July 5, 1908, and that was the offence charged.
It was held that the breach of section 10 was a continuing breach on July 10, 1908, and therefore the information was in time.
The offence under section 135 read with section 10 consisted in failing to keep the factory in conformity with the Act.
Every day that the flywheel remained unfenced, the factory was kept not in conformity with the Act, and therefore, the failure continued to be an offence.
Hence the offence defined in section 10 was a continuing offence.
In London County Council (supra) section 85 of the Metropolis Management Amendment Act, 1852 prohibited the erection of a building on the side of a new street of less than fifty feet in width, which shall exceed in height his distance from the front of the building on the opposite side of the street without the consent of the London County Council and imposed, penalties for offences against the Act and a further penalty for every day during which such offence should continue after notice from the County Council.
The Court construed section 85 to have laid down two offences; (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council.
The latter offence was a continuing offence applying to any one who was guilty of continuing the building at the prohibited height after notice from the County Council.
State of Bihar vs Deokaran Nenshi, (supra) was explained by this Court in Bhagirath Kanoria & Ors.
vs State of Madhya Pradesh & Ors.
, ; Therein, the Provident Fund Inspector filed complaints against the Directors, the Factory Manager and the respondent company charging them with non payment of employer 's contribution under the Employees ' Provident Fund and Family Pension Fund Act, 19 of 1952, from February 1970 to June 1971.
At the trial the accused contended that since the limitation prescribed by section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the Court had no jurisdiction to take cognizance of the complaints.
The Trial Court having held that the offences of which the accused were charged were continuing offences and, therefore, no question of limitation could arise, and that order having been upheld 409 by the High Court in revision, the Directors in appeal to this Court contended that the offence of non payment of the employer 's contribution could be committed once and for all on the expiry of 15 days after the close of every month and, therefore, prosecution for the offence should have been launched within the period of limitation provided in section 468 of the Code.
Rejecting the contention it was held by this Court that the offence of which the appellants were charged namely, non payment of the employer 's contribution to the Provident Fund before the due date, was a 'continuing offence ' and, therefore, the period of limitation prescribed by section 468 of the Code could not have any application and it would be governed by section 472 of the Code, according to which, a fresh period of limitation began to run at every moment of the time during which the offence continued.
It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed fresh offence.
Section 472 of the Code of Criminal Procedure deals with continuing offence and says: "In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.
" The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day.
It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
The expression 'continuing offence ' has not been defined in the Code.
The question whether a particular offence is a 'continuing offence ' or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
Applying the law enunciated above to the provisions of Section 630 of the , we are of the view that the offence under 410 this section is not such as can be said to have consummated once for all.
Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the , cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender 's possession is delivered up or refunded.
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged.
The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse.
Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property.
It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the property It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly mis applied is delivered up or refunded to the company.
For failure to do so sub section (2) prescribes the punishment.
This, in our view, is sufficient ground for holding that the offence under section 630 of the is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation.
The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the company 's quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected.
These appeals accordingly succeed.
The impugned orders are set aside and the cases are remanded to the Trial Court for disposal in accordance with law in light of the observations made herein above.
V.P.R. Appeals allowed.

summary/full:
Appellant Company filed criminal complaints under Section 630(l)(b), Companies Act and Section 406, IPC against its employees (the first respondent of each appeal) as they did not vacate the company quarters after about six months even after retirement.
The Judicial Magistrate, First Class dismissed the complaints as the same were not filed within the period of limitation of six months from the date of retirement of the Respondents employees.
The High Court,holding that the offence under Section 630(1) was not a continuing offence, dismissed the Company 's revision petitions.
In the appeal to this Court on the question, whether the offence under Section 630(l)(b) of the Companies Act is a continuing offence for the purpose of limitation, allowing the Appeals of the Appellant Company, this Court, HELD: 1.
The beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company: (a) where an officer or employee of a company wrongfully obtains 397 possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment.
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
[406B E] 2."Officer" or "employee" in s.630 of the Companies Act includes both present and past officers and employees.[405B C] 3.
The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day.
The courts when confronted with provisions which lay down a rule of limitation governing prosecutions should give due weight and consideration to the provisions of s.473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
[409D G] 4.
The expression `continuing offence ' has not been defined in the Code.
The question whether a particular offence is a 'continuing offence ' or not must,therefore,necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
[409F H] 5.The offence under section 630 is not such as can be said to have consummated once for all.
Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, can not be said to be terminated by a single act or fact but would subsist for the Period until the property in the offender 's possession is delivered up or refunded.
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged.
The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which May be deemed a single impulse.
Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property.
It is 398 not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e., with the delivering up or refund of the property.
It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company.
For failure to do so sub section (2) prescribes the punishment.
[409H 410E] 6.
The offence under section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the complaints could not be said to have been barred by limitation.
[410D F] W.M.I. Cranes Ltd. vs G.G. Advani & Anr., [1984] 1 Kar.
Law Cronicle 462 overruled; Bhagirath Kanoria and Ors.
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 S.C.C. 361; Amrit Lal Chum vs Devoprasad Dutta Roy and Anr.
; , ; State of Bihar vs Deokaran Nenshi, [19731 1 S.C.R. 1004; Bhagirath Kanoria & Ors.
vs State of Madhya Pradesh & Ors.
, ; followed.
Black 's Law Dictionary, Eighth Edition, (Special Deluxe); Salmond and Heuston on the Law of Torts, 19th Edn.
Page 50; Halsbury 's Laws of England.
4th Edn.
Vol 45, Para 1389 referred to.


judgement:
Appeal No.1290 of 1979.
From the Judgment and Order dated 16.8.1977 of the Punjab and Haryana High Court in Regular Second Appeal No. 1001 of 1966.
Dhruv Mehta and S.K. Mehta (NP) for the Appellants.
J.D. Jain for the Respondent.
The following Order of the Court was delivered: This is an appeal by special leave by the plaintiff Wakf Board.
Its suit for declaration of the right to the passage and possession thereof having been dismissed by the Trial Court, a title appeal was filed before the District Judge of Karnal.
By an exemption notification on the plaint in a suit of this type filed by the Wakf Board, court fee of Rs. 15 is payable.
On its memorandum of appeal, the plain tiff had paid the same amount of court fee also.
Objection was raised to sufficiency of court fee and respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped.
As a fact, while court fee of Rs. 638 was payable, court fee of Rs. 15 had been paid.
This matter was preliminarily considered by the appellate court and by the order dated 5.5.1966 the Additional District Judge sustained the objection and directed the memorandum of appeal to be dismissed.
The High Court did not interfere when plaintiff took the matter before it.
Ultimately special leave had been granted by this court and at the time of grant of leave, the following order was made: "As the petitioner is willing to pay deficit court fee on the memo of appeal before the District Judge without prejudice, we direct the issue of show cause notice to the other side? It is unfortunate that even when that order was made on 27.11.1978 this matter is coming for final disposal almost 13 years thereafter.
The plea raised by the appellant before the learned Additional District Judge that the appeal was a continuation of the suit and the same 181 Court fee as was payable on the plaint was appropriate in appeal had been rightly negatived.
At the trial stage, there was an exemption and since it was specifically confined to the trial stage there was no ground to claim the benefit at the appellate stage also.
But when the learned Additional District Judge came to hold that the memorandum of appeal had not been sufficiently stamped, instead of outright dismissing the memorandum of appeal, an opportunity should have been given and the appellant should have been called upon to make good the deficiency.
Under the provisions of Order VII of the Code of Civil Procedure which applies to suits, when the plaint does not bear appropriate court fee this is the requirement of the law.
Section 107 (2) of the Code of Civil Procedure provides: "(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
" Section 149 of the Code of Civil Procedure provides: "Where the whole or any part of any fee pre scribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discre tion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be; of such court fee; and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
" Reading these two provisions together and keeping fair ness of procedure in view, we are inclined to agree with the counsel for the appellant that when the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance courtfee within a time to be indicated and if there was failure to comply with the direction of the Court the memo randum of appeal could have been dismissed.
This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.
Counsel for the appellant has undertaken to pay the deficit court fee as was payable on the memorandum of appeal when the appeal was filed within four weeks hence.
In case the amount of court fee is so paid, the 182 rifle appeal shah be revived to be dealt with in accordance with law.
If there be failure to do so, the order of dis missal shah stand sustained.
We are inclined to agree with counsel for the respond ents that this is a case of negligence on the part of the appellants and, therefore, the respondents who have been dragged in these proceedings for about 10 years should be compensated.
We direct that the restoration of the appeal in the appellate court on payment of appropriate court fee shall be subject to the further condition of payment by way of costs of Rs. 1,000.
The appeal is disposed of accordingly.
V.P.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The plaintiff Wakf Board 's suit for declaration of the right to the passage and possession thereof having been dismissed by the Trial Court, a title appeal was filed before the District Judge.
A Court fee of Rs. 15 was paid on the plaint by the Wakf Board by an exemption notification.
On its memorandum of appeal, the plaintiff had paid the same amount of court fee.
Respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped.
The Additional District Judge dismissed the memorandum of appeal.
The High Court did not interfere, when plaintiff took the matter before it.
Hence this appeal by special leave by the plaintiff contending that the learned Additional District Judge in stead of dismissing the memorandum of appeal, an opportunity should have been given and the appellant should have been called upon to make good the deficiency.
Allowing the appeal, this Court, HELD: 1.
When the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance court fee within a time to be indicated and if there was failure to comply with the direction of the Court, the memorandum of appeal could 180 have been dismissed.
This opportunity having not been given, the dismissal of the appeal was not appropriate.
[181F G] 2.
This is a case of negligence on the part of the appellants and,therefore, the respondents who have been dragged in these proceedings for about 10 years should be compensated, by way of costs of Rs. 1,000.
[182 B]


judgement:
Appeal No.903 of 1978.
From the Judgment and Order dated 5/6 12 1977 of the Bombay High Court in Special Civil Application No.1937 of 1971.
V.C. Mahajan, B.K. Prasad, Smt.
Sangeeta Aggarwal and C.V. Subba Rao (NP) for the Appellant.
K.R. Chowdhary for the Respondent.
The following Order of the Court was delivered This appeal by special leave is directed against the judgment and order of the Bombay High Court passed in Spe cial Civil Application No. 1937 of 1971 decided on December 5, 1977.
The Union of India, the appellant herein, approached the High Court under Article 226 of the Constitution challenging notices of demand issued by the Municipal Council, Purna, respondent No. 1 herein, claiming tax to the tune of Rs. 28,400/ by way of "Service charges" due for the period 1954 to 1.960.
The claim of the Union of India primarily was based under Article 285 of the Constitution read with Sec tion 135 of the Indian Railways Act, 1890.
The High Court interplaying the two provisions negatived the claim of the appellant by holding as follows: "In terms of Article 285(2) these properties will continue to be liable to such taxes 'until Parliament by law otherwise provides.
Mr. Govilkar has not drawn our attention to any specific law made by the Parliament pro viding otherwise.
He, however, relied on section 135 of the Indian Railways Act, but, as indicated earlier, provisions of section 135 cannot have any overriding ' effect against the continuance of such laws when authorised by Article 285 (2) of the Constitution.
It is not possible for us to hold that Railways Act is an Act made by the Parliament as contem plated under sub Article (2) of Article 285 of the Constitution" The High Court further observed that: "As Section 135 of the Railways Act is now substituted by the corresponding provi sions of the above enactment, it is unneces sary to consider the contention of Mr. Govil kar as to effect of the absence of any Notifi cation.
We have already indicated how section 135 or the corresponding section of the new enactment can have no overriding effect as against the saving of laws contemplated under Article 285 (2) of the Constitution.
" 185 The view expressed by the High Court is obviously erro neous.
Section 135 of the Indian Railways Act, 1890 gets saved under Article 285(1) of the Constitution itself.
The said Article provides that property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by the State or by any author ity within a State.
Section 135 of the Railways Act provides as under: "Taxation of railways by local authorities: Notwithstanding anything to the contrary in any enactment, or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways from railways administrations in aid of the funds of local authorities, namely:. (1) A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the (Central Gov ernment) has, by notification in the official gazette, declared the railway administration to be liable to pay the tax.
(2) While a notification of the (Central Government), under clause (1) of this Section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or in lieu thereof such sum, if any as an officer appointed in this behalf by the (Central Government ) may having regard to all the circumstances of the case, from time to time determine to be fair and reasonable.
(3) The (Central Government ) may at any time revoke or vary a notification under clause (1) of this Section: (4) Nothing in this Section is to be construed as debarring any railway administration from entering into contract with any local authori ty for the supply of water or light or for the scavenging of railway premises or for any other service which the local authority may be rendering or be prepared to render within any part of the local area under its control.
(5) 'Local Authority ' in this section means a local authority as defined in the General Clauses Act, 1887 and includes any authority legally entitled to or entrusted with the control or management of any fund for the maintenance of watchmen or for conservancy of a river".
186 The aforesaid provision, existing as it is, in terms permits taxation of Railways by the local authority in the manner given therein; the Central Government being the controlling and the regulating authority permitting liabili ty at a given point of time, its extent and manner.
The Indian Railways Act being a central enactment has no role to play in sub Article (2) of Article 285, for that is a sphere in which the State legislation operates.
The reasoning of the High Court to oust the applicability of Section 135 of the Indian Railways Act on the test of sub Article (2) of Article 285 was totally misplaced, as also in not venturing to create room for it in sub Article (1) of Article 285.
The interplay of the constitutional and legal provisions being well cut and well defined requires no marked elaboration to stress the point.
Accordingly, we allow this appeal, set aside the judgment and order of the High Court and issue the writ direction asked for in favour of the Union of India restraining the respondent council from raising demands on the railway in regard to service charges.
We make it clear that the rights of the local authority as flowing under Section 135 of the Indian Railways Act, 1890 stand preserved in the event of the Central Government moving into the matter, if not already moved.
In the circumstances of the case, however, there will be no order as to costs.
V.P.R Appeal allowed.

summary/full:
The Union of India, the appellant, approached the High Court under Article 226 of the Constitution, challenging notices of demand issued by the Municipal Council, respond ent No.1, claiming tax to the tune of Rs. 28,400 by way of 'Service charges ' due for the period 1954 to 1960, under Article 285 of the Constitution read with Section 135 of the Indian Railways Act, 1890.
The High Court dismissed the writ petition negativing the claim, against which, this appeal by special leave was filed.
Allowing the appeal, this Court, HELD 1.
Section 135 of the Indian Railways Act, 1890 gets saved under Article 285(1) of the Constitution itself.
The said Article provides that property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by the State or by any authority within a State.
[185 A B] 2.
Section 1315 of the Railways Act permits taxation of Railways by the local authority in the manner given therein; the Central Government being the controlling and the regu lating authority permitting liability at a given point of time, its extent and manner.
The Indian Railways Act being a central enactment has no role to play in sub Article (2) of Article 285, for that is a sphere in which the State legis lation operates.
[186 A B] 3.
The reasoning of the High Court to oust the applica bility of Section 135 of the Indian Railways Act on the test of sub Article (2) of Article 285 was totally misplaced, as also in not venturing to create room for it in sub Article (1) of Article 285.
The interplay of the constitutional 184 and legal provisions being well cut and well defined re quired no marked elaboration to stress the point.
[186 B C]


judgement:
vil Appeals Nos.
1221 & 1222 of 1977.
From the Judgment dated 20.1.1976 of the Andhra Pradesh High Court in Appeal Nos. 758 and 632 of 1975.
Mrs. Shyamala Pappu and Ms. Indira Sawhney for the Appel lants.
T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The appellants arc aggrieved that the High Court by the common judgment dated 20.1.1976 in two cases had substantially reduced on erroneous grounds the enhanced compensation allowed by the Subordinate Judge on reference under Section 18 of the Land Acquisition Act (for short the Act).
Civil Appeal No. 1222 of 1977 relates to acquisition of Ac.
8.33 cents of land in Survey No. 2/1 of Dondaparthi village in pursuance to Notification under Section 4(1) of the Act published on 7.7.1966 for construction of quarters for the staff of Porl Trust.
Civil Appeal No. 1221 of 1977 relates to acquisition of Ac.1.68 cents of land in Survey No. 2/2A of the same village in pursuance to the Notification published on 1.8.1968 for the purpose of formation of the national highway diversion road.
The appellants claimed land value at the rate of Rs. 10 per sq. yard since the Land Acquisition Officer awarded only 0.88 paise per sq. yard.
The learned Subordinate Judge determined the market value of the land at the rate of Rs. 11 per sq yard accepting as basis the value of land under the transactions evidenced by Exhibits A 1 to A 4, but granted the compensa 175 tion at the rate of Rs. 10 per sq. yard as the claimants themselves had claimed compensation at the rate of Rs. 10 per sq. yard.
The State preferred appeal against the said judgment of the 'Subordinate Judge to the High Court of Andhra Pradesh.
The High Court accepted Exhibits A I to A 4 as reflecting the value of land in the neighbourhood.
It however following the decision of this Court in Tribeni Devi vs Collector, Ranchi, ; , that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme, determined the market value of the appellants land at the rate of Rs. 6.50 paise per sq. yard and accordingly reduced the total compensation allowed by the Subordinate Judge.
The learned counsel for the appellants contended before us that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case (supra) without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was submitted that the land in question was fully developed and eminently suitable for being used as house sites and, therefore, there was no justification for making any deduction.
It is also pointed out that even in respect of the land acquired for the purpose of formation of the road, the High Court wrongly proceeded on the basis that expenses have to be incurred for development and thus in awarding the compensa tion, the High Court wrongly applied principles of deduction of 1/3 of the value.
The learned counsel has taken us through the relevant evidence and maintained that the learned Subordinate Judge had reduced the land value to Rs. 10 per sq. yard though the market value was higher at Rs. 11 per sq. yard only because the appellants had themselves limited the claim to Rs. 10 per sq. yard The learned counsel for the respondent maintained that the appellants ' land forms part of large tract acquired for the purpose of construction of houses, that the sale deed Exhibits A 1 to A 4 relate to small plots which are fully developed and when the transaction is compared, it is neces sary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that the High Court was right in making the deduction of 1/3 of the value in the facts and circumstances of the case.
In awarding compensation in acquisition proceedings, the Court has necessarily to determine the market value of the land as on the date of the relevant Notification.
It is useful to consider the value paid for similar land at the material time under genuine transactions.
The market value envisages the price which a willing purchaser may pay under bona fide trans 176 fer to a willing seller.
The land value can differ depending upon the extent and nature of the land sold.
A fully de veloped small plot in an important locality may fetch a higher value than a larger area in an undeveloped condition and situated in a remote locality.
By comparing the price shown in the transactions all variables have to be taken into consideration.
The transaction in regard to smaller property cannot, therefore, be taken as a real basis for fixing the compensation for larger tracts of property.
In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduc tion is given taking into consideration the expenses re quired for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction.
This principle has been stated by this Court in Tribeni Devi 's case (supra).
In Kaushalya Devi vs Land Acquisition Officer, ; , this Court observed at pages 912 913 as under: "When large tracts are acquired, the transac tion in respect of small properties do not offer a proper guideline . . . .
In certain other cases this Court indicated that for determining the market value of a large property on the basis of a sale transaction for smaller property a deduction should be given.
" We shall also refer to the observations of this Court in Administrator General of West Bengal vs Collector, Varanasi, ; "The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspec tive.
The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents.
However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valua tion indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant.
In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made.
" 177 This Court has in a recent decision in Special Tahsil dar Land Acquisition, Vishakapatnam vs Smt.
A. Mangala Gowri, 1991(2) Scale 301, following Tribeni Devi 's case pointed out as under: "It is to be noted that in building Regula tions setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
There fore, based upon the .situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the rural areas housing schemes relating to weaker sections deduction of 1/4 may be justi fied.
" The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisition, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
lf smaller area within the large tract is already developed and suitable for build ing purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
The national highway runs very near to the proposed Port trust colony.
The lands acquired already for the South Eastern Railway Staff Quarters lie to the southern side of the land under acquisition.
The town planning trust road runs on the northern side of the land under acquisition.
The colony is in the fast developing part of the municipal town.
The plot of Ac. 1.68 cents in Survey No. 2/2A acquired for the formation of the diversion road is adjacent to built in area.
The land involved in these cases is of even level and fit for construction without the necessity for levelling or reclamation.
The High Court has itself conclud ed on the evidence that the lands covered by the acquisition are located by the side of the National Highway and the southern railway staff quarters with the town planning trust road on the north.
The neighbouring areas are already de veloped ones and houses have been constructed, and the land has potential value for being used as building sites.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduc tion.
It is not in every case that such deduction is to be allowed.
Where the acquired land is in the 178 midst of already developed land with amenities of roads, electricity etc.
, the deduction in the value of the compara ble land is not warranted.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no require ment of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other ameni ties and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
We are, therefore, of the view that the High Court has erred in applying the principle of deduction; and reducing the fair market value of land from Rs. 10 per sq. yard to Rs. 6.50 paise per sq. yard.
In our opinion, no such deduction is justified in the facts and circumstances of these cases.
The appellants, therefore, succeed.
In the result, the appeals are allowed and the respond ent is directed to pay the compensation as determined by the learned Subordinate Judge with interest and solatium in accordance with law.
In the circumstances of the case, we make no order as to costs.
G.N. Appeals allowed.

summary/full:
The appellants ' lands were acquired under the Land Acquisition Act.
The appellants claimed land value at the rate of Rs. 10 per sq. yard, but the Land Acquisition Offi cer awarded compensation at the rate of Rs.0.88 per sq. yard.
On a reference the Sub Judge determined the market value at Rs. 11 per sq. yard on the basis of certain com parable transactions, but granted the compensation at the rate of Rs. I0 as the appellants themselves had claimed only at that rate.
On an appeal preferred by the Respondent State, the High Court determined the market value of the lands at the rate of Rs. 6.50 per sq. yard and reduced the total compensation, following the decision of this Court in Tribeni Devi vs Collector, Ranchi, AIR 1972 SC 141 that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme.
Aggrieved by the High Court 's decision, the appellants preferred the present appeals, contending that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was further contended that there was no justification for making any deduction since the land in question was fully developed and eminently suitable for being used as house sites.
Even in respect of the land acquired for the purpose of formation of the road, it was argued, the High Court wrongly proceeded on the basis that expenses have to be incurred for development.
On behalf of the Respondents, it was contended that the appellants ' lands form part of large tract acquired for the purpose of construction of 173 houses, that the other transaction based .on which compensa tion was decided by the Sub Judge, related to small plots of land which were fully developed and while comparing the transactions, it was necessary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that 1/3 of the value was rightly deducted.
Allowing the appeals, this Court, HELD 1.
The principle of deduction in the laud value covered by the comparable sale is adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisi tion, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
[177 D].
Tribeni Devi vs Collector, Ranchi, ; , distinguished.
Kaushalya Devi vs Land Acquisition Officer, ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Special Tahsildar, Land Acquisi tion, Vishakapatnam vs Smt, A. Mangala Gown, ; , relied on.
2 In the instant case, the lands involved are of even level and fit for construction without the necessity for levelling or reclamation.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduction.
[177 F H] 3.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circum stances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a 174 developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possi ble to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
[178 B,C).


judgement:
Appeal No. 480 of 1958.
Appeal by special leave from the judgment and order dated April 15, 1958, of the Orissa High Court in Misc.
Appeal No. 194 of 1957, arising out of the judgment and order dated October 26, 1957, of the Election Tribunal, Puri, in Election Case No. 1/67 of 1957.
Veda Vyasa and A. V. Viswanatha Sastri, R. Patnaik and Ratnaparkhi, A. G., for the appellant.
H.Mahapatra and P. K. Chatterjee for G. C. Mathur, for respondent No. 1. 1958.
December 18.
The Judgment of the Court was delivered by IMAM, J.
The appellant and the respondent No. 1 were, amongst others, candidates for election to the Orissa Legislative Assembly from the Daspalla doublemember constituency in which a seat was reserved for a scheduled caste candidate.
We are not concerned with the election of the scheduled caste candidate.
120 954 For the general seat the election was contested by the appellant, respondent No. 1 and respondent No. 3.
The appellant obtained 17,700 votes, respondent No. 1 15,568 votes and respondent No. 3 3,589 votes.
The election was held on February 27, 1957, and the appellant was declared elected on March 5, 1957.
Respondent No. 1 filed an election petition questioning, on various grounds, the election of the aPpellant.
The Election Tribunal dismissed the petition holding that no grounds had been established to invalidate the election.
Respondent No. 1 appealed to the High Court of Orissa against the order of the Election Tribunal.
One of the grounds, amongst the many grounds, taken by Respondent No. 1 to invalidate the election of the appellant was that the nomination of respondent No. 3 was improperly accepted as he was disqualified from contesting the election being a Sarbarakar of the 10 villages in the, district of Nayagarh mentioned in the schedule to the petition.
The High Court held that the office of Sarbarakar was an office of profit under the State Government of Orissa.
Respondent No. 3 was accordingly disqualified from being a member of the Assembly.
It, however, held that the acceptance of the nomination of respondent No. 3 had not materially affected the election of the returned candidate under el.
(d) of sub section (1) of section 100 of the Representation of the People Act, 1951, hereinafter referred to as the Act.
Three grounds were urged before the High Court in support of the contention that the appellant had been guilty of corrupt practice.
One was that of bribery; the second was that the appellant and his agents had published a pamphlet, Exbt. 8, containing statements which were false and which he knew or believed to be false in relation to the personal character and conduct of respondent No. 1 and in relation to his candidature; and the third was, the obtaining and procuring by respondent No. 1 of assistance for the furtherance of the prospects of his election from Sarpanches of certain Grama Panchayats.
With regard to the first two grounds the High Court held that the same 955 had not been established.
With reference to the third ground the High Court was of the opinion that a Sarpanch of the Grama Panchayat, though not a Government servant appointed by the Government, was none the less a person in the service of the Government as he performed many of the governmental duties and was also removable by the Government and such a person came within the provisions of section 123(7)(f) of the Act.
A Sarpanch exercised under the Orissa Grama Panchayats Act, 1948, hereinafter referred to as the Orissa Act, mostly governmental functions like collection of taxes, maintenance of public accounts, etc.
It thought that if such a person was not brought under section 123(7)(f) there would be " a lot of undue influence exercised on the voters by these persons who in the village exercised a lot of influence considering the nature of their powers and the ideas of the village people ".
The High Court accordingly allowed the appeal and set aside the appellant 's election but was of the opinion that although its finding resulted in the appellant being disqualified for membership of Parliament and the Legislature of every State for six years under section 140 of the Act, this was a fit case for the removal of the disqualification by the Election Commission under section 144 of the Act.
The appellant applied to the High Court for a certificate that this was a fit case for appeal to this Court.
The certificate was granted, but one of the learned Judges was in some doubt whether this was a case in which the provisions of article 133(1)(c) of the Constitution applied.
On behalf of respondent No. 1 an objection had been taken that article 133(1)(c) of the Constitution did not apply and the High Court could not have certified that this was a fit case for appeal to this Court.
It seems to us unnecessary to decide whether in a case of this kind the provisions of article 133(1)(c) applied because, in our opinion, even if they did not apply and the High Court could not have issued a certificate, this was just the kind of case where we would have granted special leave to appeal under article 136 of the Constitution because the appeal raised a point of law of considerable public importance.
956 In order to remove all doubts in the matter, we grant the appellant special leave to appeal against the decision of the High Court of Orissa and proceed to deal with the appeal on that basis.
The Act was amended in 1956.
Before the amendment the relevant portion of section 123 for the purpose of this appeal was contained in sub section
(8) which % as as follows : " (8) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person.
Explanation For the purposes of this clause (a) a person serving under the Government of India shall not include any person who has been declared.
By the Central Government to be a person to whom the provisions of this clause shall not apply ; (b) a person serving under the Government of any State shall include a patwari, chaukidar, dafedar, zaildar, shanbagh, karnam, talati, talari, patil, village munsif, village headman or any other village officer, by whatever name lie is called, employed in that State, whether the office be holds is a whole time office or not, but shall not include any person (other than any such village officer as aforesaid) who has been declared by the State Government to be a person to whom the provisions of this clause shall not apply." After the amendment the relevant portion of section 123 is in sub section (7) which reads as follows: " (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than giving of vote) for the furtherance of the prospects of that candidate 's election from any person in the service of the Government and belonging to any of the following classes, namely: (a) gazetted officers; (b) stipendiary judges and magistrates; 957 (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers including village accountants, such as, patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and (g) such other class of persons in the service of the Government as may be prescribed.
Explanation (I) In this section the expression "agent " includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2)For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate 's election if he acts as an election agent, or polling agent or a counting agent of that candidate.
" There is a material difference between the phraseology of section 123(8) before it was amended and section 123(7) as now contained in the Act.
Under the former provision there was a prohibition against obtaining any assistance for the furtherance of the prospect of a candidate 's election from any person serving under the Government of India or the Government of a State other than the giving of a vote by such person.
The Explanation, however, gave authority to the Central Government to declare any person serving under it to be a person to whom these provisions would not apply.
In other words, unless there was such a declaration these provisions covered every person serving tinder the Government of India.
Clause (b) of the Explanation further widened the meaning of any person serving under the Government of a State by including the persons specified therein and any other village officer, by whatever name he may be called, employed in that State, but the State Government was authorized to declare that any such person, other than any such village officer, to be a person to whom these provisions did not apply.
The language of the provisions of section 123(8) covered a wide field and referred to every person serving under the Government of India or a 958 State unless such 'Person was declared to be one to whom the provisions would not apply.
After the amendment, however, the provisions of section 123(7) are narrower in scope.
These provisions apply to any person in the service of the Government belonging to the classes specified in cls.
(a) to (g) and none else.
For the purpose of this appeal it is el.
(f) which will have to be considered, as the other clauses cannot in any case apply.
The principal question for consideration is whether a Sarpanch of a Grama Panchayat constituted under the Orissa Act is a person in the service of the Government of the State of Orissa and belongs to the class specified in cl.
(f) of section 123(7).
Obviously, two things will have to be established before the provisions of section 123(7)(f) can apply to a Sarpanch of a Grama Panchayat constituted under the Orissa Act: (1) That such a person is in the service of the Government and (2) that he comes within the class specified in cl.
It would not be enough to establish only one of these conditions.
It is necessary, therefore, to decide, in the first instance, whether a Sarpanch of a Grama Panchayat under the Orissa Act is a person in the service of the Government of the State of Orissa.
For this purpose, it will be necessary to consider whether any of the provisions of the Orissa Act relating to the Grama Panchayat and the duties to be discharged by the Sarpanch indicate that the Sarpanch is in the service of the Government, because independent of those provisions there is no material upon which any such conclusion can be arrived at.
It was urged on behalf of the appellant that under the Orissa Act a Grama Sasan can be constituted by notification by the State Government.
The Grama Sasan is to be a body corporate having perpetual succession and a common seal with power to acquire and hold property, to transfer any property held by it and to enter into contracts and to do all other things necessary for the purpose of carrying out the provi sions of the Orissa Act and to sue and be sued in its corporate name.
For every Grama Sasan there shall be a Grama Panchayat and the functions of the 959 Grama Sasan shall be exercised, performed and discharged by the Grama Panchayat.
The Executive power of the Grama Panchayat shall be exercised by the Sarpanch elected under section 10, who shall act under the authority of the said Grama Panchayat.
The Grama Sasan shall elect, in the prescribed manner, from amongst its members an Executive Committee which will be known as the Grama Panchayat and the Grama Panchayat shall elect, in the prescribed manner, a Sarpanch.
The appointment of a Sarpanch, therefore, was not by the Government.
The Sarpanch was elected by the Grama Panchayat which in turn was elected by the Grama Sasan and the Grama Sasan consisted of a village or a group of contiguous villages and its members were the population residing in the Grama.
As the appointment of the Sarpanch is Dot by Government, this would be one of the factors in holding that the Sarpanch was not in the service of the Government.
Under section 8, the Sarpanch has to act under the authority of the Grama Panchayat.
Prima facie, this would also be a factor to discountenance the theory that a Sarpanch was in the service of the Government.
Another factor which would militate against the theory that a Sarpanch was in the service of the Government was that he received no remunera tion from the Government.
The power to remove a Sarpanch by the State Government is stated in section 16 but the removal can only be for negligence, inefficiency or misbehaviour.
This restricted power of removal was not a conclusive factor on the question whether a Sarpanch was in the service of the Government.
It was accordingly urged that three important factors to be taken into consideration in deciding whether a person was in the service of the Government, namely, appointment of the person, such a person to act under the authority of the Government and one who received remuneration from Government were lacking in the case of a Sarpanch.
The restricted power of removal by the Government was not a conclusive factor ' Instances were not lacking in the Municipal Acts of various States where the State Government had vested in it the power of removal of 960 a Chairman of the Municipality, but it could not be said that the members of the Municipality or their Chairman were in the service of the Government.
On behalf of respondent No. 1 it was urged that the expression in service of Government" had a wider concept than the expression serving under the Government ".
Exercise of governmental functions would amount to being in Government 's service.
A Sarpanch could be equated with a patwari, Lekhpal, talati, karnam, etc., and it was not necessary to consider whether he was in service of Government because the word " and " before the words " belonging to any of the following classes " should be read as " or He referred to the various provisions of the Orissa Act in support of his submission that a Sarpanch must be regarded as one in service of Government.
Under section 10(2) the District Magistrate was to decide the manner in which the local area of any Grama Sasan shall be divided into electoral wards and the number of members to be returned for each of such wards.
Under sub section
(4) of this section the number of members of a Grama Panchayat shall be fixed by the District Magistrate.
Under sub section
(6) if in an election the requisite number of members of a Grama Panchayat is not elected, the State Government shall appoint persons to fill up the vacancies and the Grama Panchayat so constituted, consisting of elected and appointed members, shall elect a Sarpanch from amongst its members.
Under sub section
(8) the State Government was empowered by notification for sufficient cause to extend the term of office of any Grama Panchayat for a period of one year.
Under a. 11 the State Government may by notification direct that general election of members of a Grama Panchayat be held at any time before the expiration of the term of office of such members includ ing its Sarpanch.
Under section 14 the State Government is authorized to decide any dispute or difficulty arising out of the interpretation of any of the provisions of the Orissa Act or any rule made thereunder or any difficulty which arises in the working of the Act.
Under section 16 the State Government is empowered 961 to remove a Sarpanch on the ground of negligence, inefficiency, or misbehaviour.
Under section 17 a Sarpanch shall give effect to the decision of the Grama Panchayat; provided that if in his opinion any such decision is subversive of peace and order in the locality or results in manifest injustice or unfairness to an individual or body of individuals or a particular community or is generally against public interest, he shall refer the matter to the Sub divisional Magistrate and thereafter act according to such directions as be may receive from such Magistrate.
Under sub section
(2) of this section, the Sub divisional Magistrate may, on his own motion or on the representation by the Sarpanch, set aside a decision of the Grama Panchayat, if he finds that the decision is of the nature as stated above.
Under sub section
(3) of section 18 the Sub divisional Magistrate may nominate any member of the Grama Panchayat to carry on the duties of the Sarpanch till a new Sarpanch is elected on the resignation of the former.
Under section 22 a Grama Panchayat may, if a majority of its members so decide, with the previous approval of the Government and if the Provincial Government so direct undertake within its area the control and administration of and be responsible in the matters mentioned in cls.
(a) to (y).
Clause (x) refers to the doing of anything the expenditure on which is declared by the Provincial Government or by a District Board with the sanction of the Provincial Government to be an appropriate charge on the Grama Sasan 's funds.
Even in the matter of appointing staff to a Grama Panchayat, under section 32 the Grama Panchayat has to prepare a scheme containing its proposals for the employment of whole time or part time staff, for their salaries and allowances and shall submit the same to the prescribed authority who shall have the power to approve or modify or reject the scheme.
Section 35 refers to the liability of the members of the Grama Panchayat or of any Joint Committee or any other Committee constituted under the Orissa Act and provides for the institution of suits against them for loss, waste or misapplication of any property belonging to the 121 962 Grama Panchayat as the result of direct consequence of his neglect or misconduct while a member of the Grama Panchayat, Joint Committee or other Committee.
Under sub section
(3) the Provincial Government has the power to institute such a suit on its own initiative.
Under section 36 all members of the Grama.
Panchayat shall be deemed to be public servants and in the definition of " legal remuneration " in section 161 of the Indian Penal Code" the word " Government" for the purpose of this section shall be deemed to include a Grama Sasan or a Grama Panchayat.
Under section 44(2) a Grama Panchayat with the previous sanction of the State Government may impose a tax, toll, fee or rate on matters referred to in cls.
(a) to (n).
Under sub section
(4) the District Magistrate is authorized to review or revise the tax, toll, fee or rate imposed by Grama Panchayat.
Under sub section
(5) the District Magistrate may by an order in writing require the Grama Panchayat to levy or increase any tax, toll, fee or rate specified in sub section
(2) subject to the conditions 'and restrictions contained therein, if in his opinion the income of the Grama Panchayat is or is likely to be inadequate for the proper discharge of the duties imposed under section 21 or undertaken under section 22.
Under section 97 the District Magistrate is authorized to exercise general powers of inspection, supervision and control over the performance of the administrative duties of the Grama Panchayat.
Section 98 contains the general powers of the District Magistrate and section 99 contains the emergency powers of the District Magis trate in relation to a Grama Panchayat whereby he may by an order in writing prohibit the execution or further execution of a resolution or ail order passed or made by it.
Under section 117 A the State Government may delegate any of its powers.
except the power to make rules, to be exercised or discharged by any officer subordinate to State Government, It was urged on behalf of respondent No. 1 that the above provisions of the Orissa Act clearly made the Grama Panchayat come under the control and supervision of the State Government and that the duties and functions of the Grama Panchayat to be performed by its 963 Sarpanch were governmental duties.
It was further urged that in considering whether a Sarpanch was a person in the service of Government the essential elements to be borne in mind were the control and supervision over him by the State Government and its power to remove him from his office.
Neither the absence of appointment by the State Government nor the non payment of remuneration by it would be factors indicating that he was not in the service of the Government.
In our opinion, there is a distinction between I serving under the Government ' and I in the service of the Government ', because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant.
There are, according to Batt (On the Law of Master and Servant), two essentials to this relationship: (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) the master must have the right to control the servant 's work either personally or by another servant or agent and, according to him, " It is this right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in this relation and marks off the servant from an independent contractor, or from one employed merely to give to his employer the fruits or results of his labour.
In the latter case, the contractor or performer is not under his employer 's control in doing the work or effecting the service; he has to shape and manage his work so as to give the result he has contracted to effect.
Consequently, a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as visiting physician to its fever hospital".
None of the provisions of the Orissa Act suggest that as between the State Government and the Grama 964 Panchayat and its Sarpanch any such relationship exists.
It is true that the State Government, the District Magistrate and the Sub divisional Magistrate have been given certain powers of control and supervision over the Grama Panchayat but those powers of control and supervision are in relation to the administrative functions of the Grama Panchayat and the Sarpanch.
The Grama Panchayat is an autonomous body exercising functions conferred under the statute.
It can hardly be said that the Grama Panchayat in so functioning is in the service of the Government.
Its administrative functions are akin to the functions generally performed by Municipalities and District Boards.
It would be a conception hitherto unknown to suppose that any Municipality or District Board was in the service of the Government merely because it exercised administrative functions and to some extent was under the control of the Government.
Co operative societies generally are very much under the control and supervision by the State Government or one of its officers authorized in that behalf.
It would be difficult to accept the suggestion that because of that a Cooperative society and its members must be regarded as in the service of the Government.
Even with respect to companies, progressively, legislation has been giving power to the Government to control and supervise them.
Under section 259 of the Indian , in certain circumstances, any increase in the number of its directors must be approved by the Central Government and shall become void if it is disapproved.
Under section 269, in the case of a public company or a private company which is a subsidiary of a public company, the appointment of a managing or whole time director for the first time after the commencement of this Act in the case of an existing company, and after the expiry of three months from the date of its incorporation in the case of any other company, shall not have any effect unless approved by the Central Government; and shall become void if, and in so far as, it is disapproved by the Central Government.
Under section 408 the Government has the power to prevent mismanagement in the affairs of the 965 Company and under the proviso in lieu of passing any order under sub section
(1) the Central Government may, if the company has not availed itself of the option given to it under section 265, direct the company to amend its Articles in the manner provided in that section and make fresh appointments of directors in pursuance of the Articles as so amended, within such time as may be specified in that behalf by the Central Government.
Section 409 empowers the Central Government to prevent change in the number of directors likely to affect the company prejudicially.
It could not be said, because of these provisions, that a company was in the service of the Government.
It seems to us, therefore, that the mere power of control and supervision of a Grama Panchayat exercising administrative functions would not make the Grama Panchayat or any, of its members a person in the service of the Government.
Even if it could be said that the Grama Panchayat in the exercise of its administrative functions exercised duties in the nature of Governmental duties it could not thereby be said that its Sarpanch was in the service of the Government.
So far as the Sarpanch is concerned, he is merely the executive head of the Grama Panchayat which carries out its functions through him.
He is not appointed by the Government.
He is not paid by the Government.
He does not exercise his functions as one in the service of the Government and he can only be removed on the ground of negligence, inefficiency or misbehaviour.
We have been unable to find a single provision of the Orissa Act from which we could say that a Sarpanch is a person in the service of the Government.
Reference had been made on behalf of the respondent No. 1 to section 31 of the Orissa Act which authorizes the Grama Panchayat to enter into a contract with the State Government to collect all or any class of taxes or dues payable to the Government at a prescribed percentage as collection charges.
As the Grama Sasan is a body corporate and the Grama Panchayat is its executive authority, the statute enabled the Grama Panchayat by provisions of section 31 to enter into a contract with the State Government to collect its taxes and its dues.
It 966 cast no obligatory duty upon the Grama Panchayat to collect such taxes or dues of the Government.
No provision of the Orissa Act has been placed before us by which the State Government could order a Grama Panchayat to collect its taxes or its dues.
Furthermore, under el.
(b) to section 31, a Grama Panchayat is authorized to enter into similar contracts with proprietors or land holders to collect their rents.
The provisions of section 31 militate against the theory that the Grama Panchayat is in the service of the Government.
There would be no occasion for such a provision if the Grama Panchayat was in the service of the Government in which case it would have to carry out the orders of the Government to collect its taxes or its dues.
Even if on a reasonable construction of the provisions of the Orissa Act it could be held that a Sarpanch of the Grama Panchayat was a person in the service of the Government, it would have to be further held that he was of the class of officers mentioned in section 123(7)(f).
Clause (f), in the first instance, speaks of a person in the service of the Government who is a revenue officer and then further extends the class to village accountants.
The words " such as patwaris, lekhpals, talatis, karnams and the like " are merely descriptive of the words " Revenue officers including village accountants".
Under cl.
(f) it is essential that a person in the service of the Government must be a revenue officer or a village accountant, by whatever name such officer or village accountant may be described.
The exclusion of every other village officer from the provisions of cl.
(f) compels the conclusion that before this clause can apply to a Sarpanch of the Grama Panchayat under the Orissa Act it must be proved that he is either a revenue officer or a village accountant.
The mere fact that under section 31 of the Orissa Act a Grama Panchayat is enabled to enter into a contract with the State Government to collect its taxes or its dues cannot convert a Sarpanch into a revenue officer.
No doubt a Grama Panchayat would have to supervise and maintain village and field boundary marks and village records if required to do 967 so by the State Government under section 21(r) of the Orissa Act.
In the present case there is no proof that the Grama Panchayats in question were required to do any such thing by the Government.
It is significant that under section 54(1)(xiv) of the Orissa Act it is a choukidar appointed under that Act by the District Magistrate on whom a statutory duty is cast to keep watch over boundary marks and report to the Grama Panchayat any loss or damage caused to the boundary marks defining villages.
The Grama Panchayat, however, has not been assigned positively any functions under the Orissa Act which are discharged by a revenue officer.
The provisions of section 21(r) would not by itself convert a Sarpanch of a Grama Panchayat into a revenue officer.
Similarly, there is no provision of the Orissa Act which shows that a Sarpanch is a village accountant.
It had been suggested on behalf of respondent No. 1 that if it could be established that a Sarpanch was a revenue officer or a village accountant, then the very fact that he was such a person made him a person in the service of the Government.
It is doubtful whether any such necessary conclusion arises, but there is no need to make further reference to this submission as, in our opinion, a Sarpanch of the Grama Panchayat under the Orissa Act is neither a revenue officer nor a village accountant.
It follows, therefore, that in the present case the two essential elements that a Sarpanch must be a person in the service of the Government and that he belongs to the class mentioned in cl.
(f) of sub section
(7) of section 123 have not been established.
Even if one of them had been established and not the other the provisions of section 123(7) would not apply to such a person.
In our opinion, the High Court erred in supposing that because a. Sarpanch of a Grama Panchayat under the Orissa Act exercised governmental duties he must be regarded as a person in the service of the Government.
The High Court did not give any clear finding that a Sarpanch, even if a person in the service of the Government, was either a revenue officer or a village accountant.
In our opinion, the provisions of section 123(7) do not apply to him.
Therefore, it cannot.
be said that 968 any corrupt practice under section 123 had been established in the case and the election of the appellant could not be set aside on the only ground on which his election had been set aside by the High Court.
The appeal is accordingly allowed with costs and the election petition of 'respondent No. 1 is dismissed.
Appeal allowed.

summary/full:
The appellant was declared elected to the Orissa Legislative Assembly and the first respondent filed an election petition challenging the election, inter alia, on the ground that the appellant had committed the corrupt practice under section 123(7)(f) Representation of the People Act, 1951, by obtaining the assistance of Sarpanches of certain Grama Panchayats for the furtherance of the prospects of his election.
The petition was dismissed by the Election Tribunal but on appeal., was allowed by the High Court and the election was set aside.
The High Court held that a Sarpanch was a person in the service of the Government with in the meaning of section I23(7)(f) Of the Act.
Held, that a Sarpanch of Grama Panchayat in Orissa was not one of the persons contemplated by section I23(7)(f) and consequently the appellant was not guilty of any corrupt practice in obtaining assistance of Sarpanches.
Two conditions must co exist before S123(7)(f) could apply to a Sarpanch: (i) that he was in the service of the Government, and (ii) that he fell within the class 953 specified in cl.
There was a distinction between " serving under the Government " and " in the service of the Government "; while one may serve under a Government one may not necessarily be in the service of the Government; under the latter expression one not only served under the Government but was in the service of the Government and this imported the relationship of master and servant.
None of the provisions of the Orissa Grama Panchayats Act, 1948, suggested that as between the State Government and the Grama Panchayat and its Sarpanch any such relationship existed.
The mere power of control and supervision of Government over a Grama Panchayat exercising administrative functions or performing duties of governmental nature could not make the Grama Panchayat or its Sarpanch a person in the service of the Government.
The Sarpanch was the executive head of the Grama Panchayat : he was neither appointed nor paid by the Government; he could only be removed by Government on grounds of negligence, inefficiency or misbehaviour.
He was not under the control of the Government while discharging his functions and could not be said to be in service of the Government.
The second condition also did not exist as a Sarpanch was neither a revenue officer nor a village accountant and as such was not one of the class of officers mentioned in cl.
(f) of section 123(7).