judgement:
Appeal No. 37 of 1966.
Appeal by special leave from the judgment and order dated February 14, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 228 D of 1962.
B. C. Misra and M. V. Goswami, for the appellant.
M. C. Chagla, Daya Krishan, section C. Javali and Ravinder Narain, for respondent No. 1.
The Judgment of the Court was delivered by Ramaswami, J.
The sole question involved in this appeal is whether a plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue influence, can in the same suit in the alternative ask for the relief of specific performance of the same contract.
On October 26, 1956 Pt.
Prem Raj, the appellant entered into an agreement with Shri Moti Ram Bhalla, respondent No. 2 for the purchase of lands from Shri Lila Ram, father of the appellant at the price of Rs. 1025/ perbigha on the terms and conditions mentioned therein.
On December 18, 1956, the appellant and respondent No. 2 entered into a partnership to carry on the business of buying and selling lands and developing, the same under the name and style of "L.M.G. Colonisers & Traders".
Subsequently, on January 2, 1957 the said firm "L.M.G. Colonisers & Traders" entered into a deed of partnership with D.L.F. Housing & Construction (P) Ltd., respondent No. 1 herein to carry on the business of purchasing and developing the lands into a residential 1 colony and to sell the same in plots either by auction or by tenders or in any other manner as the company, respondent No. 1 may find expedient after getting the scheme for development approved by the competent authority.
On the same day i.e., January 2, 1957 the newly formed partnership between the respondent No. 1 and L.M.G. Colonisers & Traders entered into an agreement for the purchase of the same land with Pt.
Lila Ram on the terms and conditions set out therein.
On June 11, 1958 the parties cancelled the new partnership and agreement dated January 2, 1957 and entered into a fresh arrangement and executed the following four documents 650 " (1) A deed of dissolution of the new partnership between L.M.G. Colonisers and Traders (consisting of the appellant and respondent nos.
2 and I entered into on 2nd January 1957 (exhibit P. I).
(ii) A deed of cancellation of agreement of sale of land between Lila Ram and the said new partnership firm of L.M.G. Colonisers and respondent No. 1.
(iii) A new Agreement of sale of these same lands by Lila Ram in favour of respondent No. 1.
(iv) An agreement to sell 22 plots out of the land agreed to be purchased from Lila Ram under the agreement stated in (iii) above by respondent No. 1 in favour of the appellant.
" By virtue of these documents the new partnership dated January 2, 1957 'between L.M.G. Colonisers & respondent No. 1 came to an end as also the agreement dated January 2, 1957 by which Lila Ram had agreed to sell his lands to the said new partnership firm and there was a fresh agreement by Lila Ram to sell the same lands to D.L.F. Housing and Construction (Private) Ltd., respondent No. 1 at a certain price and out of the land thus to be bought, respondent No. I agreed to sell 22 plots of land to the appellant.
After about 3 years, on or about June 8, 1961, the appellant gave notice to respondent No. 1 repudiating the arrangement dated June 11, 1958 as void and claimed that the documents were not binding upon him.
The appellant alleged that the deeds executed on June, 11, 1958 were unlawful and void and inoperative against him as they were executed as a result of undue influence and coercion exercised upon him.
In the alternative the appellant prayed for a decree for specific performance of the agreement dated June 11, 1958 to sell the aforesaid 22 plots of land and for damages in addition thereto.
A preliminary objection was raised by the contesting respondent No. 1, D.L.F. Housing and Construction (P) Ltd. to the effect that the appellant having claimed that the agreement dated June 11, 1958 was void and inoperative, cannot in the same suit pray for specific performance of the same agreement.
The Subordinate Judge, First Class, Delhi rejected the preliminary objection by his order dated February 26, 1962.
Respondent No. 1 filed a Civil Revision Application No. 228 D of 1962 in the Circuit Bench of the Punjab High Court at Delhi.
By his order dated February 14, 1964, Dulat, J. allowed the Revision Application holding that the appellant having sued for a declaration that the agreement of June 11, 1958 was void, cannot in the alternative be permitted to sue for specific performance of the agreement and therefore the suit must fail so far as the relief for specific performance was concerned.
6 51 This appeal is brought by special leave from the order of the Punjab High Court dated February 14, 1964 in Civil Revision Application No. 228 D of 1962.
In support of this appeal it was argued, in the first place, that under 0.7 r. 7, Civil Procedure Code the appellant was entitled to claim a relief in the alternative on the facts stated in the plaint and it was open to him to pray to the Court that a decree for specific performance should be granted if the Court did not accept his case that the impugned agreement dated June 11, 1958 was illegal and void.
It is true that under 0. 7, r. 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent reliefs.
But it must be shown by the plaintiff that each of such pleas is maintainable.
So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act.
In this connection reference may be made to section 37 of the Specific Relief Act (Act No. 1 of 1877) which is to the following effect : "A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the, alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically may direct it to be rescinded and delivered up accordingly.
" It is expressly provided by this section that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided.
It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance.
Section 35 of the states the principles upon which the rescission of a contract may be adjudged.
But there is no provision in this section or any other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance.
In our opinion, the omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff.
This view is borne out by the following passage in "Fry on Specific Performance, 6th Edn. ', p. 493" : "It remains to remark that the plaintiff, bringing an action for the specific performance of a contract, may claim in the alternative that, if the contract cannot be enforced, it may be rescinded and delivered up to be cancelled, provided that the alternative relief is based on the same state of facts, 'though with different conclusions as to law.
When the action is brought by the 652 vendor, and the purchaser has been in possession, this alternative claim may embrace an account of the rents and profits.
Bu t, for the reason already stated, a suit to set aside a transaction for fraud or, in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery.
And notwithstanding the provisions of the Rules of the Supreme Court as to alternative claims for relief, it seems probable that the same conclusion would still be arrived at, on the ground that the claims were inconsistent and embarrassing.
" The same principle is enunciated in Cawley vs Poole(1) in which it was held by the Court of Chancery that in a case where a bill alleges a judgment obtained by fraud, and a subsequent compromise, and seeks to set aside the whole transaction on the ground of fraud, or in default to have the compromise carried out, and the Court is of opinion that the case of fraud fails, it will not enforce the compromise, but the whole bill must be dismissed.
There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract.
It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract.
In the present case, no such averment is made in the plaint.
On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him.
For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action.
The legal position has been stated 'by Lord Blanesburgh in pronouncing the opinion of the Judicial Committee in Ardeshir Mama vs Flora Sassoon(2) as follows : "Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he 'thereby elected to treat the contract as at an end and himself as discharged from its obligations.
No further performance by him was either contemplated or had to be tendered.
In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting.
He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part.
Failure to make good that averment brought with it the inevitable dismissal of his suit.
Thus it was that the commencement (1) ; (2) 55 1. A. 360, at p. 372. 653 of an action for damages being, on the principle of such cases as Clough vs London and North Western Rly.
Co. (1871) L.R. 7 exhibit 261, and Law vs Law [(1904) 1 Ch.
140], a definite election to treat the contract as at an end, no suit for specific performance, whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff.
He had, by his election precluded himself even from making the averment just referred to, proof of which was essential to the success of his suit.
The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon.
" It was pointed out by Lord Blanesburgh that the Indian law on the subject as contained in the is not different from the English law.
At page 375 of the same Report Lord Blanesburgh states : "Although, so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England [section 24(b) is the nearest, it seems invariably to have been recognized, and, on principle, their Lordships think rightly, that the Indian and the English requirements in this matter are the same : see, e.g., Karsandas vs Chhotalal , 1050).
" In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract.
In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.
It was next contended on behalf of the appellant that in any event the High Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned.
We do not think there is any substance in this argument.
The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action.
As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs.
We accordingly reject the argument of the appellant on this aspect of the case.
654 Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial court under section 115 of the Civil Procedure Code.
It was said that the finding of the trial court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial court on issue No. 4, whether the relief for specific performance was open to the appellant in the alternative.
In our opinion, there is no warrant for the argument put forward on behalf of the appellant.
It is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of.
law and so had acted with material irregularity or illegality in the exercise of its jurisdiction within the meaning of section 1 15 (c) of the Civil Procedure Code.
It was therefore competent to the High Court to interfere, in revision, with the order of the trial court on this point.
To put it differently, the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended.
The question was therefore one which involved the jurisdiction of the trial court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.
For these reasons we hold that there is no merit in this appeal which is accordingly dismissed with costs.
Y.P. Appeal dismissed.

summary/full:
The appellant find a suit for a declaration that a certain contract against him was void and inoperative having been obtained by undue influence, and in the alternative prayed For a decree for specific performance of certain terms in the same contract.
The first respondent objected that the appellant having claimed the agreement to be void and inoperative could not in the same suit pray for specific performance of the same agreement.
The trial court rejected the preliminary objection, but the High Court, in revision, held that the appellant could not in the alternative be permitted to sue for specific performance of the agreement, and therefore the suit must 'fail so far as the relief for specific performance was concerned.
Dismissing the appeal, this Court : HELD : Under 0. 7, r. 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent 'reliefs.
But it must be shown by the plaintiff that each of such pleas is maintainable.
So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act.
Section 37 of the Act provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not pro vided.
Section 35 of the Act states the principles upon which the rescission of a contract may be adjudged.
But there is no provision in this ,section or any other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance.
The omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff.
It was therefore not open to the appellant to sue for rescission of the agreement and in the alternative sue for specific performance.
[651 C G] Cawley vs Poole, ; , applied.
Further, in a suit for specific performance, the plaintiff should allege that be is ready and willing to perform his part of the contract.
In the present case no such averment is made in the plaint.
On the other hand, the appellant has alleged that the agreement was a result of fraud and undue influence and not binding upon him.
[652 D E] Ardeshir Mama vs Flora Sassoon, 55 I.A. 360, referred to.
The appellant had not made out a cause of action so far as the relief of specific performance was concerned and hence the appellant was not entitled to be put to election with regard to the two alternative reliefs.
[653 H] 649 In holding that the appellant was entitled in the alternative to ask for the relief of specific performance the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its jurisdiction within the meaning of section 115(c) of the Code of Civil Procedure.
It was therefore competent to the High Court to interfere, in revision, with the order of the trial court on ' this point.
[1654 B D]


judgement:
Appeal No. 937 of 1965.
Appeal from the judgment and order dated September 13.
1963 of the Punjab High Court in Civil Writ No. 841 of 1962 and Civil Appeal No. 938 of 1965.
Appeal from the order dated September 13, 1963 of the Punjab High Court in Civil Writ No. 526 of 1963 and Civil Appeal No. 1195 of 1967.
Appeal from the order dated August 6, 1964 of the Punjab High Court in Letters Patent Appeal No. 136 of 1964.
D. R. Prem, R. N. Sachthey and section P. Nayar, for the appellants (in C.A. No. 937 of 1965).
R. N. Sachthey, and section P. Nayar, for the appellants (in C.A. s Nos. 938 of 1965 and 1195 of 1967).
section V. Gupte, Bhawani Lal and B. P. Jha, for respondent Nos. 1 to 3 (in C.A. No. 937 of 1965).
R. V. Pillai, for the respondent (in C.A. No. 938 of 1965).
H. L. Mittal and Naunit Lal, for the respondents (in C.A. No. 1195 of 1967).
657 Civil Appeal No. 937 of 1965 The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by certificate, from the judgment of the Punjab High Court dated September 13, 1963 in Civil Writ No. 841 of 1962.
Nanak Chand owned agricultural lands in Bahawalpur Statenow forming part of West Pakistan.
He also owned some property at Kot Kapura, Tehsil Faridkot, District Bhatinda now located in India.
Nanak Chand had in normal course of business come to Bhatinda where he died in June, 1947 leaving behind three sons, Om Parkash, Sat Narain and Ram Parshotam who are the respondents in this appeal.
As a result of the partition of India the land originally owned by Nanak Chand and after his.
death by his sons in Bahawalpur State had to be abandoned.
After the partition of India the three respondents migrated to India and filed separate claims in accordance with law and obtained allotment of certain area in village Kot Kapura, district Bhatinda in lieu of the land abandoned by them in Pakistan.
The Revenue Authorities allotted an area measuring 206.8 1/2 standard acres in village Kot Kapura, District Bhatinda.
After the allotment was made one Rur Singh filed a complaint before the Managing Officer that these respondents had received double allotments in villager Kot Kapura.
The complaint was examined by Shri Shankar Das Katyal, Managing Officer who held that Shri Rur Singh failed to substantiate the allegation of double allotment.
But the Managing Officer came to the conclusion that Nanak Chand although he had died long before the partition of the country must be treated as a displaced land holder for the purpose of allotment of land.
The reason given was that his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan.
In consequence of this finding a large portion of the land allotted to, the three respondents was cancelled by the Managing Officer by his order dated September 18, 1961.
The three respondents pre ferred an appeal before the Assistant Settlement Commissioner and a revision petition before the Chief Settlement Commissioner Punjab but the appeal and the revision petition were both dismissed.
In dismissing the revision petition the Chief Settlement Commissioner relied, upon paragraph 17 of Tarlok Singh 's Land Resettlement Manual, 1952 Edition, page 180 which was to the following effect : "Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased.
In the fard taqsim, 'therefore, the entry will be in the name of the deceased land holder.
Possession is ordinarily given to the heirs but there must be regular 658 mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs.
" It was held by the Chief Settlement Commissioner that this paragraph related to all persons who continued to be shown as owners in the revenue records irrespective of the fact whether they had died before or after migration.
In other words, the Chief Settlement Commissioner took the view that the land could only be allotted in the name of Nanak Chand even assuming that he had died in June, 1947.
Against the order of the Chief Settlement Commissioner the respondents filed a Writ Petition (Civil Writ No. 841 of 1961) before the Punjab High Court.
The Writ Petition was allowed by the High Court by its order dated September 13, 1963 and the orders of the Chief Settlement Commissioner ,dated June 8, 1962, of the Assistant Settlement Commissioner dated December 26, 1961 and of the Managing Officer dated September 18, 1961 were all quashed by the grant of a writ in the nature of certiorari.
It is necessary at this stage to set out the provisions of the relevant statutes.
Section 2(b) of the East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act No. XIV of 1947) defines an "evacuee" as meaning "a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Province of East Punjab, who on account of civil disturbances, or the fear of such disturbances, or the partition of the country : (i) leaves or has since the first day of March 1947, left the said territories for a place outside India, or (ii) cannot personally occupy or supervise hi,; property or business.
" Section 4 of that Act provided that "All evacuee property situated within the Province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until the Provincial Government by notification otherwise directs." In pursuance of the powers conferred by the rules made by the State Government under cls.
(f) and (ff) of section 22(2) of the East Punjab Evacuees, (Administration of Property) Act, 1947, the Custodian issued a notification No. 4892/S on July 8, 1949 regarding the conditions on which he was prepared to grant allotment of land vested in him under the provisions of the said Act to displaced persons.
Para 2(e) of this notification states " "Displaced person" means a land holder in the territories now comprised in the province of West Punjab or a person of Punjabi extraction who holds land in the Provinces of North Western Frontier Province, Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1st day of March , 1947, abandoned or been made to abandon his land in the 659 said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country.
" Section 2(d) of the East Punjab Refugees (Registration of Land, Claims) Act.
1948 (East Punjab Act No. XII of 1948) states "2.
Interpretation.
In this Act unless there is anything repugnant in the subject or context, (d) 'refugee ' means a landholder in the territories now comprised in the Province of West Punjab, or who or whose ancestor migrated as a colonist from the Punjab since 1901 to the Provinces of North West Frontier Province, Sind or Baluchistan or to any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1 st day of March, 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country;" Section 2(c) defines a "landholder" to mean "an owner of land.
or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 (XVI of 1887) or a tenant as defined in section 3 of the Colonization of Government Lands Act, 1912 (Punjab Act V of 1912) and such other holder or grantee of land as may be specified by the Provincial Government;".
Section 2(c) of the East Punjab Displaced Persons (Land Resettlement) Act,1949 (East Punjab Act No. XXXVI of 1949) defines a "displaced person" as follows : " 'displaced person ' means a land holder in the territories now comprised in the Province of West Punjab or a person of Punjabi extraction who holds land in the Provinces of North West Frontier Province, Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1st day of March 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country".
Section 2(b) of this Act defines an "allottee" as follows " allottee ' means a displaced person to whom land is allotted by the Custodian under the conditions published with East Punjab Government notification No. 4892/S, dated the 8th July, 1949, and includes his heirs,.
legal representatives and sub lessees".
660 The main question to be considered in this appeal is whether Nanak Chand was a 'displaced person ' as defined in para 2 (e) of the notification dated July 8, 1949 ,or a "refugee" as defined under section 2(d) of Act No. XII of 1948 and whether he was entitled for allotment of land.
It is manifest that the expression "displaced person" or the word "refugee" has been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country.
Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word "refugee" under the relevant statutory enactments.
It is manifest in the present case that Nanak Chand died in June, 1947 long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country.
It was, however, contended by Mr. D. R. Prem on behalf of the appellants that even though Nanak Chand never became a refugee or a displaced land holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records.
Reference was made in this connection to paragraph 17 of Tarlok Singh 's Land Resettlement Manual which has already been quoted.
It was contended by Mr. Prem that the instructions contained in this paragraph would apply even though Nanak Chand had never become a refugee or a displaced land holder and the allotment has to be made in his name by the revenue authorities because his name still stands in the revenue records received from West Punjab.
, We are unable to accept this argument as correct.
It is not disputed that paragraph 17 of Tarlok Singh 's Manual has no statutory authority but it merely embodies executive or administrative instructions for general guidance.
If there is a conflict between the provisions contained in this paragraph and the statutory enactments already referred to it is manifest that the statutory provisions must take precedence and must prevail over the directions contained in para 17 of Tarlok Singh 's Manual.
In this context it is essential to emphasise that under our constitutional system the authority to make the law is vested in the Parliament and the State Legislatures and other law making bodies and whatever legislative power the executive administration possesses must be derived directly from the delegation of the legislature and exercised validly only within the limits prescribed.
The notion of inherent or autonomous law making power in the executive administration is a notion that must be emphatically reject 661 ed.
As observed by Jackson, J. in a recent American case Youngstown Sheet & Tube Co. vs Sawyer(1) "With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
" In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court.
The rule of law rejects the con ception of the Dual State (2 ) in which governmental action is placed in a privileged position of immunity from control by law.
Such a notion is foreign to our basic constitutional concept.
In our opinion, however, it is possible to give a restricted interpretation to paragraph 17 of Tarlok Singh 's Manual so as to make it consistent with the requirements of the statutory enactments.
The intention of para 17 is that it is applicable only to such persons who are land holders at the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour.
In other words, the paragraph applies to a displaced land holder who dies after having become a "displaced person" within the meaning of the relevant statutory enactments referred to above.
The paragraph does not apply to a case of, a person who was not a displaced land holder at the time of his death.
In the present case it is admitted that Nanak Chand never became a displaced land holder.
On the other hand, Nanak Chand died before he became a displaced land holder and therefore para 17 of Tarlok Singh 's Manual has no application to the facts of the present case.
For these reasons we hold that this appeal has no merit and it must be dismissed with costs.
Civil Appeals Nos.
938 of 1965 & 1195 of 1967 The question arising in these two appeals is identical with the question of law in Civil Appeal No. 937 of 1965.
For the reasons given in that judgment we hold that the decision of the High Court challenged in these appeals is correct and these appeals must be dismissed with costs.
R.K.P.S. Appeals dismissed.
(1) ; , 655.
(2) This term is derived from Fraenkel, The Dual State (1941).

dataset_name: IN-Abs

summary/full:
N owned agricultural lands in Bahawalpur State now forming part of Pakistan and also owned some property in Punjab in India.
He died in June 1947 while on a visit to India in the normal course of business, leaving behind three sons, the respondents in the appeal.
On the partition of India, the land in Pakistan originally owned by N and after his death by his sons, had to be abandoned.
After migrating to India, the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab.
Thereafter a complaint was filed before the Managing Officer that these respondents had received double allotments.
The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the partition, must be treated as a displaced land holder for the purpose of allotment of land as his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan.
In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by an order of the Managing Officer dated September 18, 1961.
Appeals made by the respondents to the Assistant Settlement Commissioner as well as revision petitions before the Chief Settlement Commissioner Punjab, were dismissed.
In dismissing the revision petitions, the Chief Settlement Commissioner relied on para.
17 of "Tarlok Singh 's Land Resettlement Manual" 1952 edition Page 180, to the effect that "Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased".
He therefore upheld the view 4 at the land could only be allotted in the name of N.
The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed.
On appeal to this Court, HELD:Dismissing the appeal, The definition of a "displaced person" in para 2(e) of the Notification of July 8, 1949, issued by the Custodian in accordance with provisions of the East Punjab Evacuees (Administration of Property) Act 1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act 12 of 656 1948, show that these expressions have been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country.
Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word "refugee" under the relevant statutory enactments.
N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country.
[660 A D] There was no force in the contention that even though N never became a refugee or a displaced land holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records.
The rule in para 17 of "Tarlok Singh 's Manual" consistently with the statutory enactments, would be applicable only to such persons who were land holders 'it the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour.
It does not apply to a person like N who was not a displaced land holder at the time of his death.
[661 D F]


judgement:
Appeal No. 157 of 1967.
Appeal from the judgment and decree dated January 7, 1960 of the Patna High Court in Misc.
Judicial Case No. 693 of 1958.
C. K. Daphtary, Attorney General, D. P. Singh, R. K. Garg, section C. Agarawala, K. M. K. Nair and section P. Singh, for the appellants.
Sarjoo Prasad and D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
This appeal is directed against an order allow ing a writ petition under article 226 of the Constitution.
Maharaja Pratap Singh Bahadur was the proprietor of the estates collectively known as the Gidhaur estate, in Monghyr district.
On the publication of a notification under section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) on July 24, 1953 the Gidhaur estate and the interests of the Maharaja therein vested in the State of Bihar.
The Maharaja was receiving a permanent malikana allowance of Rs. 5743/14/6 annually in two equal six monthly instalments as shown in annexure "A" to the writ application.
The registers and rolls of the recipients of the malikana maintained by the Collector of the district since a long time past show that the successive proprietors of the Gidhaur estate were receiving the malikana for a long time past.
The State of Bihar stopped payment of the malikana allowance from April 1, 1958 on the ground that the proprietary interests of the Maharaja in the Gidhaur estate vested in the State and consequently his right to the malikana was extinguished.
The Maharaja alleged in 'the writ petition that the permanent malikana was payable irrespective of his proprietary rights in his estates notified under sec.
3 and was not income or rent from those estates nor a charge or encumbrance on them.
He alleged that 'the stoppage of the payment of the malikana was illegal and asked for a writ directing the State to make payment of the malikana. ' The State did not file any return to the petition.
The High Court held that the Maharaja 's right to the malikana was not an intermediary interest in the Gidhaur estate and did not cease with the extinction of his proprietary right in the estate.
Accordingly, the High Court issued a writ in the nature of mandamus commanding the State of Bihar to pay the malikana due to the Maharaja from April 1, 1958.
The State of Bihar has filed this appeal on a certificate granted by the High Court.
Section 2 of the Bihar Land Reforms Act is the definition section.
Section 2(i) defines an estate to mean any land included under one entry in any of the general registers of revenue paying 736 and revenue free lands and includes a share of or in any estate.
Section 2(jj) defines an "intermediary" in relation to any estate or tenure to mean a proprietor, tenure holder, under tenure holder and trustee.
Section 2(jjj) defines an "intermediary interest" as meaning the interest of an intermediary in an estate or tenure.
Section 2(o) defines "proprietor" to mean a person holding in trust or owning for his own benefit an estate or part of an estate.
Section 2(r) defines a "tenure holder" to mean a person who has acquired from a proprietor or another tenure holder the right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and includes inter alia the holder of a tenure created for maintenance of any person.
Section 2(q) defines tenure to mean the interest of a tenure holder or under tenure holder.
Under section 2A the expressions "proprietor or tenure holder" and "estate or tenure" mean and include "intermediary" and the "intermediary interest" respectively.
Section 3(1) states that the State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, specified in the notification, have passed to and become vested in the State.
Sections 4(a) and 23(1) are as follows : " 4.
(a) Consequences of the vesting of an estate or tenure in the State.
Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under sub section (1) of section 3, or sub section (1) or 2 of section 3A the following consequences shall ensue, na mely (a) Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars hats, bazars mela and ferries and all other sairati interests as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of this Act.
" 737 .lm15 Section 24A(1) Determination of compensation of any intermediary of temporarily settled estate (1) In the case of such intermediary of a temporarily settled estate, the Compensation Officer shall determine the compensation payable in respect of the transference to the State of the interest of the intermediary in such temporarily settled estate, whether let in farm or held in khas, at a sum equal to twenty times of the malikana payable to him during the previous agricultural year and, where the intermediary has taken out the engagement of the lands comprised in such estate for a fixed period on the payment of a fixed jama, also a sum equal to the pro rata refund of the fixed jama paid by him for the unexpired period of the engagement.
" It may be noted that sections 2(ii), 2(iii), 2A and 24A were in serted in the parent Act by the Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act XX of 1954).
Section 4 was also amended by the same Act.
Learned Attorney General contended (1) that the right to the malikana was an interest in the estates called the Gidhaur estate specified in the notification of July 24, 1953 and on the issue of the notification the right to malikana stood extinguished and (2) alternatively, the Maharaja was an intermediary of temporary settled estates in respect of which the malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under see.
24A. Regulation VIII of 1793 (sec.
43) described malikana as an allowance to proprietors in consideration of their proprietary rights.
Baden Powell 's Lands Systems of British India, Vol.
p. 717 said that malikana in Bengal and places other than the Punjab usually means an allowance to an ex proprietor by way of solatium for a lost right.
The custom of 'Paying malikana allowance to displaced pro prietors may be traced back to the Moghul period.
"The claims of the ancient zemindars and village headmen, when thus displaced were usually recognised to the extent of giving them an allowance for subsistence, and sometimes they continued to receive this allowance in the shape of payments from the new occupants called russoomi zemindaree." (See Phillips on Law Relating to the Land.
Tenures of Lower Bengal, p. 126).
It was said that "Malikana is the unalienable right of proprietorship." (see the answer of Ghulam Hosein Khan, Appendix No. 16 to Mr. Shore 's Minutes of 2nd April 1788 quoted in C.D. Field 's Regulations of the Bengal Code p. 717).
The Regulations from 1788 onwards recognised this custom/. Regulation VIII of 1793, secs.
43 to 738 47 provided that in the event of the proprietor refusing to accept a reasonable settlement his lands were to be let in farm or held khas.
When the lands were let in farm, the farmer was to engage to pay 10% of the jama as malikana to the excluded proprietors in addition to the jama and the Government was to be considered ,as guarantees for the payment.
The malikana was realisable from the farmer as arrears of revenue.
When the lands were held in khas 10% of the net collections was to be paid as malikana from the treasury.
Section 5 of Regulation VII of 1822 repealed the existing regulations regarding malikana and substituted fresh provisions for such allowance.
The new provisions were declared by section 11 of Regulation IX of 1833 to be prospective only and to be applicable solely to the settlements made under them.
(see Clarke, Regulations Vol.
I p. 71).
Regulation VII of 1822 was ,originally enacted for the ceded and conquered Provinces, Cuttack, Pataspur and its dependencies.
It was extended to other Provinces by sec.
2 of Reg.
IX of 1825.
Later it was repealed as regards the North Western Provinces by Act XIX of 1873 and fresh provisions for allowance to displaced proprietors were substituted.
The malikana was for a term of years when the proprietors were dispossessed from management temporarily.
It was a permanent grant when the proprietors ' rights in their lands were ,completely extinguished.
The decisions under the Limitation Acts relating to the malikana turned on the particular language of those Acts.
Clause 12 of section 1 of the Limitation Act of 1859 seemed to make it imperative on the courts to deal with malikana as an interest in land and to treat a claim for it as barred if not made within a period of 12 years after the last receipt by the proprietor.
(see Herranund Shoo vs Mst.
Ozeerun & Ors.
(1),, Govinda Chunder Roy Choudhuri vs Ram Chunder Chowdhury(2).
But under the Limitation Act of 1877 the non receipt of malikana for 12 years did not extinguish the right and malikana could be sued for within twelve years from the time when it became due.
(see Hurmuzi Begum vs Hirday Narayan(3).
In Jaggo Bai vs Utsava Lal(1) the courts below treated malikana as immovable property and since the point as to its not being immovable property was not taken earlier, the Privy Council did not allow the point to be taken before it for the first time.
Nevertheless the Privy Council held that a suit to establish a right as to malikana was not a suit for possession within the meaning of article 141 and was governed by article 120 ,of the Limitation Act of 1908.
Though malikana is not a charge ,on immovable property the explanation to article 132 of that Act declared that for the purposes of that article, it was "deemed" to be money charged on immovable property.
(1) (2) (3) 1.
(4) 51 Allahabad 439.
739 Malikana is not rent.
(see Bhoalee Singh vs Mst.
Neemoo Behool(1) and Syed Shah Najamuddin Hyder vs Syed Zahid Hos sein(1).
It is not rent or revenue derived from land and not assessable as agricultural income.
(Maharaja P. section Bahadur vs State of Bihar(3).
In Deo Kuar vs Man Kuar (4) malikana was described as a grant of a portion of a land revenue.
For purposes of the because sec.
3 of the Act interpreted the expression "grant of money or land revenue" to include anything payable on the part of the Government in respect of a right.
The Privy Council held that malikana was something payable on the part of Government in respect of a right and therefore a suit relating to malikana was not cognizable by the court without a certificate from the Collector.
The plea of bar under the Pensions, Act is not taken in the present appeal.
Malikana is not an incumbrance on the estate of the proprie tor liable to pay it and is not extinguished on the sale of that estate for recovery of arrears of land revenue under Act XI of 1859.
(see Mahendra Narayan Roy Chowdhuri vs Abdul Gafur Choudhury (5) .
The person in receipt of a permanent malikana is, not a proprietor of the estate for which malikana is payable and has no title to the alluvial accretion to the estate, (see Soudamini Dassya vs Secretary of State for India (6) The proprietors of the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a century.
The origin of this malikana allowance is not known.
From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex proprietors in lieu of their lost proprietary right.
Phillips in his Law Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the proprietors of the soil in Biharuniversally claimed and possessed a right of malikana and he endeavoured in vain to trace its origin in Bihar.
The malikana right of the excluded proprietors in Bihar was acknowledged in the Regulations passed on August 8, 1788.
At the time of Per manent Settlement, the new grantees were forced to acknowledge this right.
(see Baden Powell, Land System of British India, Vol.
516, 517).
The Bihar Board of Revenue Misc.
Rules 1939, article 342 p. 166 divides ' malikana into two classes.
Malikana of the first class is for a term of Years only, that is, during the currency of a settlement.
Malikana of the second class is permanent.
It states that "the Bihar malikana falls under this class and is a compensation permanently granted to the proprietors .
It is of a pensionary nature and does not depend upon col lections.
" The permanent malikana is payable at the treasury on (1) 12 W. (2) 8 C. L. J. 300 at 450.
(3) 18 Patna, 101 8.
(4) 21 1.
A. 148,160,161.
(5) (6) ,538, 545.
740 April 1, and October 1, every year on presentation of pay orders issued by the Collector accompanied by a life certificate of the recipient.
There can be no doubt that the malikana payable to the pro prietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them.
The proprietors retained certain estates.
On the publication of the notification under section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished.
But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.
Annexure A to the writ application shows that cess was deducted from the malikana.
Under secs.
5 and 421 of the Cess Act.
, 1880 cess is charged on immovable property and is payable by the holder of an estate or tenure or chaukidari chakran lands and by a cultivating raiyat.
It is not known under what circumstances cess used to be deducted from the malikana.
From the fact that cess was so deducted it is not possible to hold that malikana is an interest in the estates held by the Maharaja.
In this Court the appellant raised the second contention for the first time.
The learned Attorney General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates, and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja 'became entitled to compensation only under sec.
24A of the Bihar Land Reforms Act, 1950.
The State of Bihar has filed a petition asking for an ,order admitting certain documents as additional evidence.
We have allowed this petition.
The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin.
The second document is the khewat of those tauzis.
They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis.
The petition states that all these estates have been notified under sec.
3 and have now vested in the State Government.
The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Govern ment.
On the publication of the notification under sec.
3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all incumbrances.
But the Maharaja is not a proprietor, tenure holder or an intermediary of those estates.
The malikana is not rent or income derived from the estates.
Nor is his Tight to the malikana an incumbrance on them.
The Maharaja 's right to the malikana is not an intermediary interest in the estates 741 and did not vest in the Government.
Consequently he has no right to claim compensation for the malikana under section 24A.
That section provides for determination of compensation payable to the intermediary of a temporarily settled estate is respect of the transference to the Government of the interest of the intermediary in such estate.
The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under sec.
In State of Uttar Pradesh vs Kunwar Sri Trivikram Narain Singh (1) this Court held that an allowance of a fixed sum of money computed on the basis of 1/4th share of the net revenue of certain estates payable by the Government to the ex jagirdars as compensation for abandonment of their right in those estates was not a right or privilege in respect of land in any estate or its land revenue within the meaning of section 6 (b) of the Uttar Pradesh Zemindari Abolition and Land Reforms Act, 1951, and on the issue of a notification vesting those estates in the Government the right to the allowance did not cease.
The allowance in that case was described as a pension.
It may be that the allowance was not strictly a malikana.
Nevertheless the case is instructive.
It shows that an allowance paid to ex jagirdars in consideration of the extinction of their rights in land is not an interest in the land.
The permanent malikana stands on the same footing.
It is an allowance paid to ex proprietors for extinguishment of their right to the estate formerly held 'by them.
It is not an interest in that estate, nor an incumbrance on it, and does not cease on the vesting of the estate in the Government.
In the result, the appeal is dismissed with costs.
G.C. Appeal dismissed.
(1) ; , 226 228.

summary/full:
The respondent was the proprietor of certain estates in Bihar.
He was also in receipt of a permanent malikana allowance from the Government.
After the passing of the Bihar Land Reforms Act 1950 followed by a notification under section 3 thereof the estates of the respondent vested in the State of Bihar.
In 1958 the State of Bihar stopped payment of the malikana allowance on the ground that it was a proprietary interest which had vested in the State.
The respondent thereupon filed a petition under article 226 ,of the Constitution.
The High Court held that the respondent 's right to the malikana was not an intermediary interest and did not cease with the extinction of his proprietary rights in the estate.
The State of Bihar appealed to this Court.
The contentions raised on behalf of the appellant were : (i) that the right to malikana was an interest in the estates belonging to the respondent which on the issue of the notification under section 3 became extinguished and (ii) alternatively, the respondent was an intermediary of temporary settled estates in respect of which malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under section 24A.
HELD : (i) The history of the malikana allowance showed that it was a permanent grant of money in lieu of the proprietor 's rights in lands originally held by him.
The proprietors retained certain estates and it was only the interest in these estates that was lost on the publication of the notification under section 3.
The malikana payable to the respondent in the present case was not an interest in such estates and did not cease on the issue of the notification.
[740 B] (ii) The respondent was not a proprietor, tenure holder or an intermediary of the estates in respect of which malikana was paid to him.
The malikana was not rent or income derived from those estates.
Nor was the malikana an incumbrance on them.
The respondent 's right to the malikana was not an intermediary interest in the estates for which compensation was payable under section 24A and it did not therefore vest in the Government.
[740 H] Herranund Shoo vs Mst.
Ozeerun & Ors., , Gobinda Chunder Roy Choudhuri vs Ram Chunder Chowdhury, , Hurmuzi Begum vs Hirday Narayan, and Jaggo Bai vs Utsava Lal, 51 AN. 439, distinguished.
Bhoalee Singh vs Mst.
Neemoo Behoo, , Syed Shah Najamuddin Hyder vs Syed Zahid Hossein, 8 C.L.J. 300, Maharaja P. section Bahadur vs State of Bihar, 18 Pat.
1018, Deo Kuar vs Man Kuar, 21 I.A. 148 and Mahendra Narayan Roy Chowdhuri vs Abdul Gafur Choudhry, referred to.
State of Uttar Pradesh vs Kunwar Sri Trivikram Narain Singh, ; , relied on.


judgement:
minal Appeal No. 193 of 1965.
Appeal by special leave from the judgment and order dated October 19, 1965 of the Bombay High Court in Criminal Revi sion Applications Nos. 193 and 194 of 1965.
767 K. Hingorani and N. H. Hingorani, for the appellants.
P. K. Chatterjee and section P. Nayyar, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave in which the main question for decision is whether the appellants were rightly convicted for offences under sections 304A and 337 of the Indian Penal Code.
The facts lie within a narrow compass.
The appellants held licences under the Indian , hereinafter called the Act, and the Rules framed thereunder to manufacture, possess and sell fire works and gun powder not exceeding 200 pounds and to possess and sell safety fuses.
It appears that the appellants had a factory for manufacturing explosives in a house on Shad Road in Latur town.
It is said that an explosion occurred in that place on May 5, 1962 at about 12 O 'clock as a result of which 11 persons died and 7 persons were injured.
The appellants along with one B. G. Kamble were tried for offences under the various provisions of the Act and the Rules as also for offences under sections 304A and 337 of the Code.
The trial judge acquitted B. G. Kamble but convicted the appellants of the various charges framed against them and imposed fine for offences under the provisions of the Act and awarded a sentence of one year under section 304A and three months under section 337 of the Indian Penal Code with a direction that they were to run concurrently.
The learned Additional Sessions Judge dismissed the appeal preferred by the appellants against their conviction and sentence.
The appellants then moved the High Court on the revisional side.
The order of conviction was confirmed by the High Court as also the sentence on all the counts except that under section 304A the substantive sentence was reduced to one of rigorous imprisonment for six months but for the reasons mentioned in the judgment of the High Court the appellants were directed, in addition, to pay a line of Rs. 1,500 each.
Now there can be no manner of doubt and it has been so found that in the explosion which took place the persons who were working in the so called factory of the appellants where crackers etc. were being manufactured died or were injured.
According to the courts below the appellants had, in their possession, unauthorised explosives in contravention of the Act and the rules and had committed a number of breaches of those rules and the conditions of the licences issued to them.
The principal contention on behalf of the appellants is that even on the facts found it is not possible to hold that they were responsible for the explosion or had done anything which could be regarded as a direct and immediate cause of the explosion.
Thus criminal 768 liability could not be imposed on them under sections 304A and 337 of the Code as it has not been established that the deaths or injuries caused were the direct result of any rash or negligent act on the part of the appellants or that any such act had been proved which was the proximate and efficient cause of the explosion without the intervention of another 's negligence.
In the High Court emphasis was laid on the absence of any positive evidence pointing to the presence of the appellants at the material time.
The High Court while holding that there was no direct evidence in respect of the immediate cause of the explosion referred to the conclusion of the courts below that the appellants had committed a number of hazardous breaches of the rules framed under the Act and the conditions of the licences issued to them, particularly the storage of prohibited explosives and employment of children below the, age of 18.
This, it was pointed out, showed a callous disregard for the safety of the employees.
It was noticed that the Assistant Inspector of.
Explosives had also attributed the explosion to the storage of prohibited explosives of a high degree.
Therefore the appellants were found to have been rightly convicted under sections 304A and 337 of the Indian Penal Code.
Our attention has been invited by the learned Counsel for the appellants to certain decisions of this Court.
In Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra(1) a factory was licensed on certain conditions to manufacture paints.
The manager and the working partner did not have a license for manufacturing wet paints but nevertheless the factory manufactured them.
Certain burners were used for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.
While this process was going on froth overflowed out of the barrel and because of heat, varnish and turpentine which were stored at a short distance caught fire and resulted in the death of seven persons working in the factory.
The question was whether the manager and the working partner of the firm which ran the factory was guilty under sections 304 A and 285 of the Indian Penal Code.
It was held that the mere fact that the burners were allowed to be used in the same room in which varnish and turpentine were stored even though it might be a negligent act would not be enough to make the appellant before this Court responsible for the fire which broke out.
The cause of the fire, it was observed, was not merely the presence of burners in the room in which the varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which broke out.
The requirement of section 304A was the causing of death by doing any rash or negligent act and this meant that the death must be the direct or proximate result of the rash or negligent (1) ; 769 act.
It was found that the direct or proximate cause of the fire which resulted in seven deaths was the act of a labourer who acted in a hurry and who did not wait until the bitumen or rosin cooled down and thus it was his negligence which was the direct and proximate cause of the fire breaking out.
The appellant, namely, the manager and the working partner of the firm could not be held to have committed the offence under section 304A of the ' Code.
The ratio of the above decision was applied in Suleman Rahiman Mulani & Another V.
The State of Maharashtra(1).
In that case the question was whether the first appellant who had only a learner 's licence and was driving a jeep which knocked down the deceased had been rightly convicted of an offence under section 304A of the Code read with certain provisions of the Motor Vehicles Act.
On the material on the record the court found it impossible to discover under what circumstances the accident had taken place.
This Court held that it was not known what was the proximate cause of the accident and the possibility that it had been caused due to the fault of the deceased could not be ruled out.
The mere fact that the appellant in question held a learner 's licence did not establish that he did not know driving.
His proficiency might furnish a defence which the learner could not have but the absence of proficiency did not make him guilty.
His conviction under section 304A was therefore set aside.
The facts of the present case are somewhat different and distinguishable from those of the above two cases as will be clear from a close examination of the material evidence relating to the substances which were being used in the manufacture of the fire works etc.
in the factory of the appellants.
It appears that soon after the explosion the Inspector of Explosives, West Circle, Bombay, proceeded to Latur for investigation.
He took into possession certain substances from the scene of the accident.
By means of a letter, dated May 11, 1962 sent from the office of the Inspector of Explosives these substances were forwarded to the Chemical Examiner, Government of Maharashtra for examination, the samples were as follows: 1.
A white substance in a packet suspected to be potassium chlorate.
An orange yellow substance suspected to be arsenic sulphide.
A round stone piece containing smears with orange yellow chemical adhering to it.
(This was to (1) Cr. A. 50 of 1965, decided on 1 12 67. 770 be examined for the presence of arsenic sulphide and potassium chlorate).
A contraption to test the explosibility of a mixture of potassium chlorate and sulphur.
Dindeshchandra P. W. 10 Assistant Inspector of Explosives also went to the scene of the explosion along with the Inspector on May 9, 1962 and various samples were collected from the shops of the appellants as well.
All these were forwarded to the Chemical Examiner for examination.
The report of the Chemical Examiner (exhibit 87) which is to be found on the original record gives the following analysis in respect of the above substances "Exhibit (1) is potassium chlorate.
Exhibit (2) is arsenic sulphide.
Exhibit (3) has sediment containing arsenic sulphide and sulphur adhering to it.
Exhibit (4) has Potassium Chlorate and Sulphur in its cavity." "Apart from the original record these facts stand established from the evidence of Dindeshchandra P. W. 10 and the report (exhibit 38) which he had submitted on November 2, 1962 which was duly proved by him when he appeared as a witness.
He has further stated that when he inspected the premises of the factory on May 9, 1962 he noticed half burnt raw material like sulphur white powder the ingredients of which he could not ascertain.
There were grinding stones as also empty tubes for manufacturing exhibition fire works.
As regards the cause of the explosion his opinion may be given in his own words "Probable cause of the explosion must have been the large quantities of the raw materials gun powder and finished fireworks and the raw materials for the same were stored in the premises.
At the time of the explosion there were large quantities of the fireworks, finished as well as in the process of preparation, loose compositions and the gun powder.
There were being dried in the open court yard of the premises.
Some of the items contained very sensitive explosive compositions which might have exploded due to the spark, percussion or friction or fire.
" Although there was no direct evidence of the immediate cause of the explosion but indisputably the explosives the possession of which was prohibited under the notifications issued under the Act were found in the shops or the premises where the appellants carried on their business and on the substances that have been :,mentioned which were of a highly hazardous and dangerous 771, nature were apparently being used in the manufacture of the fire works since they were found at the scene of the explosion, (vide the evidence mentioned before and the finding of the trial court and the Additional Sessions Judge).
As stated by Dindeshchandra P. W. 10 these explosives had sensitive compositions and even friction or percussion could cause explosion.
It is further proved that in the factory itself where the explosion took place the persons who were employed were mostly women who brought their small children with _them and young __children below the age of 18 had been employed in the manufacture of the fire works etc.
The factory was situate in close proximity to residential quarters.
It became therefore all the more incumbent on the appellants to,, have completely avoided the use of highly sensitive compositions of the nature mentioned above.
The decision which is apposite to the present case is the one recently delivered by this Court on April 3, 1968 in Rustom Sherior Irani vs State of Maharashtra(1).
There the chimney of a bakery had collapsed and 11 persons were killed and certain persons were injured.
The appellant had submitted no plan for the alteration of the chimney for the third time and had asked just a mason to remove the iron pipe which had corroded and to bring the height of the chimney to 65 feet.
The mason had told Mm that while the work was being executed it was unnecessary to completely keep the bakery closed except during the period the repair work was being done.
After the chimney fell down a number of officers visited the spot and inspected the bakery.
The Chief Inspector of Boilers was of the opinion that the cause of the collapse of the chimney was the explosion which occurred in it because of the products of combustion and gases not being permitted to escape freely as a pipe of 6 inches diameter had been put instead of 12 inches diameter.
It is unnecessary to refer to, the detailed discussion of the evidence.
It was established that the construction of the new chimney had been done without ther advice of a properly qualified person.
The argument raised was on the lines similar to the one which had been advanced in Kurban Hussein Mohammedall Rangwalla vs State of Maharashtra(2).
It was maintained that no negligence on the part of the appellant had been established and it was on account of the, negligence of the mason that the chimney had fallen down.
This Court was of the view that the proximate and efficient cause of the deaths was the negligence of the appellant in choosing a pipe of 6 inches diameter and asking a mason (who was apparently not a qualified person) to carry out the alterations and also continuing working at least one oven there during the period while the alterations to the chimney were being made.
(1) Cr. A. No. 72/65.
(2) ; 772 In another recent decision, Balachandra Waman Pathe vs The State of Maharashtra,(1) this Court referred with approval to what was said by Straight, J. in Empress of India vs Indu Beg(2) that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
In Queen Empress vs Bhutan(1) the lessee of a government ferry having the exclusive right of conveying passengers across a certain river was held to be guilty under section 304A when he had committed the negligent act of putting a boat in the ferry which was in an unsafe condi tion and which sunk resulting in some of persons getting drowned.
The Punjab Chief Court found a person guilty under sections 304A and 338 in Kamr ud din vs King Emperor(4) when he had consigned two boxes containing fire works to the Railway falsely declaring them to contain iron locks with the result that in loading one of the boxes exploded killing one coolie and injuring another.
The inadvertence to the results of concealing the true character of the contents of the box which was the failure of duty to the public at large and the knowledge of the dangerous nature of the contents which must be inevitably presumed coupled with the consequences were regarded as constituting a complete offence under the sections.
Adverting to English law, the case of Regina vs David Dant(5) is highly instructive.
This is what Erle, C.J. observed "The defendant turned a dangerous animal on to a common where there was a public footpath.
This has been found by the jury to be culpable negligence, and the child 's death was caused by it.
Ordinarily speaking these are all ' the requisites of manslaughter.
It is.
contended, however, that no offence was committed, be cause as we must take it, the child was not on the path.
the jury having found that it was very near, but that they could not say whether it was on or off.
In my opinion the defendant is responsible for having brought so great a danger on persons exercising their right to cross the common; and it is not a ground of acquittal that the child had strayed from the path.
" In another case, Rex vs Pittwood(6) the prisoner was charged with manslaughter on the ground that he had been negligent in not (1) Cr. A. 62 of 1965 decided on 20 11 67.
(2) 1.
L. R. III All. 776.
(3) 1.
L. R. XVI All.
(4) 1905 P. R. 22.
(Cr.) (5) 169 English Reports (C. C. ) 1517.
(6) 773 closing a gate when a train passed which it was his duty to do with the result that White who was in a hay cart was killed while the cart was struck by the train which came when it was crossing the line.
Wright, J. was of the opinion that the prisoner had been guilty of gross and criminal negligence as he was paid to keep the gate shut when the train came and protect the public.
It was a clear case of misfeasance as the prisoner directly contributed to the accident and he was guilty of manslaughter.
All the above cases show that criminal negligence can be found on varying sets of circumstances.
The tests which have been applied appear to be fully applicable to the facts of the present case including the one of direct and efficient cause.
The appellants had, undoubtedly displayed a high degree of negligence by allowing or causing to be used dangerous and prohibited compositions and substances which must be held to have been the efficient cause of the explosion.
The appellants were therefore rightly convicted and sentenced under sections 304A and 337 of the Indian ' Penal Code.
As no other point has been pressed or arises for consideration, the appeal is dismissed.
The appellants shall forthwith surrender to their bail bonds.
Y.P. Appeal dismissed.

summary/full:
In an explosion which took place, the persons who were working in the factory of the appellants where crackers were being manufactured died or were injured.
The appellants were convicted under sections 304A and 337 I.P.C.
In appeal to this Court, the appellants contended that criminal liability could not be imposed upon them under sections 304A and 337 as it had not been established that the deaths or injuries caused were the direct result of any rash or negligent act on the part of the appellants or that any such act had been proved which was the proximate and efficient cause of the explosion without the intervention of another 's negligence.
HELD: The appellants were rightly convicted.
[773 C] Although there was no direct evidence of the immediate cause of the explosion but the explosives the possession of which was prohibited under the notifications issued under the Indian Explosives Act were found in the shops or the premises where the appellants carried on their business and the substances which were of highly hazardous and dangerous nature were apparently being used in the manufacture of the fire works.
since they were found at the scene of the explosion.
These explosives had sensitive composition and even friction or percussion could cause explosion.
In the factory itself where the explosion took place the persons who were employed were mostly women who brought their small children with them and young children below the age of 18 had been employed in the manufacture of fire works.
It became therefore, all the more incumbent on all appellants to have completely avoided the use of highly sensitive compositions.
The appellants had, undoubtedly displayed a high degree of negligence by allowing or causing to be used dangerous and prohibited compositions and substances which must be held to have been the efficient cause of the explosion.
[771 A C; 773 C] Rustom Sharior Irani vs State of Maharashtra.
A. No. 72/65; Balachandra Waman Pathe vs The State of Maharashtra, Cr. A. 62 of 1965 decided on 20 11 1967.
followed.
Regina vs David Dant., 169 English Reports (C.C.) 1517; Rex vs Pittwood. , applied.
Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra, ; ; Suleman Rahiman Mulani & Another vs The State of Maharashtra Cr.
A. 50 of 1965 decided on 1 12 1967, distinguished.