judgement:
Appeals Nos. 155 to 160 of 1956.
Appeals from the judgments and orders of the Bombay High Court dated July 6, 1954, in Special Civil Applications Nos. 393, 395, 409 and 632 of 1954; July 19, 1954, in Special Civil Application No. 1205 of 1954; and July 30, 1954, in Special Civil Application No. 1309 of 1954.
Purshottam Trikamdas, V. M. Limaye, E. Udayaratnam and section section Shukla, for the appellants.
H. N. Sanyal, Additional Solicitor General of India, N. P. Nathwani, K. L. Hathi and R. H. Dhebar, for the respondents. 1960.
October 3.
The Judgment of the Court was delivered by WANCHOO J.
These six appeals on a certificate granted by the Bombay High Court raise a common question as to the constitutionality of the Bombay Personal Inams Abolition Act, No. XLII of 1953, (hereinafter called the Act) and will be disposed of by this judgment.
The appellants hold personal inams which are covered by Bombay Acts Nos. 11 and VII of 1863.
The Act was attacked on a number of grounds in the High Court of which only two have 945 been urged before us, namely, (i) that the property which has been dealt with under the Act is not an estate and (ii) that no compensation has been provided in the Act for taking away the property of the appellants: The writ petitions were opposed by the State of Bombay and the main contention on its behalf was that the Act was protected under article 31 A of the Constitution.
Before we deal with the two points raised before us, we should like briefly to refer to the rights which holders of personal inams had by virtue of Bombay Acts Nos.
II and VII of 1863.
Act No. 11 extended to certain parts of the Presidency of Bombay and dealt with holders of lands in those parts who were holding lands wholly or partially exempt from the payment of government land revenue.
The Act provided for the cases of holders of such lands whose title to exemption had not till then been formally adjudicated.
It laid down that if such holders of lands consented to submit to the terms and conditions prescribed in the Act in preference to being obliged to prove their title to the exemption enjoyed by them, the Provincial Government would be prepared to finally authorise and guarantee the continuance, in perpetuity, of the said land to the said holders, their heirs and assigns upon the said terms and subject to the said conditions.
The main provision of the Act in this respect was that such holders of land would be entitled to keep their lands in perpetuity subject to payment of (i) a fixed annual payment as nazrana in commutation of all claims of the Crown in respect of succession and transfer which shall be calculated at the rate of one anna for each rupee of assessment and (ii) a quit rent equal to one fourth of the assessment.
There were other provisions in the Act for those cases where the holders of such lands were not prepared to abide by the conditions of the Act and wanted their claims to be adjudicated; but we are not concerned with those provisions for present purposes.
Thus the main right which the holders of lands got by Act 11 was that they held their lands on payment of one fourth of the assessment instead of full 946 assessment plus further one sixteenth of the assessment; thus they paid in all five annas in the rupee of the full assessment and retained eleven annas in the rupee for themselves.
Act No. VII dealt with similar holders of lands in the remaining parts of the Presidency of Bombay, and made similar provisions with this difference that such holders of lands were to pay two annas for each rupee of the assessment as quit rent under section 6.
Thus those who came under Act VII paid only two annas in the rupee of the assessment and retained fourteen annas in the rupee for themselves.
We now turn to the provisions of the Act.
By section 2(c) inamdar " is defined as a holder of personal inam and includes any person lawfully holding under or through him.
Section 2(d) defines an " inam village or " inam land " while section 2(e) defines " personal inam Section 3 provides that the Act will not apply to certain inams including devasthan inams or inams held by religious or charitable institutions.
The Explanation to the section lays down that by the term " inams held by religious or charitable institu tions " will be meant devasthan or dharmadaya inams granted or recognized by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under section 53 of the Bombay Land Revenue Code, 1879 (hereinafter called the Code), or in the records kept under the rules made under the .
Thus so far as religious or charitable institutions were concerned those inams which they held from the very beginning as devasthan or dharmadaya inams and which were entered in the relevant records were out of the provisions of the Act.
Section 4 extinguishes all personal inams and save as expressly provided by or under the provisions of the Act, all rights legally subsisting on the said date in respect of such personal inams were also extinguished subject to certain exceptions which are, however, not material now.
Section 5 provides that all inam villages or inam lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code or the 947 rules made thereunder and the provisions of the Code and the rules relating to unalienated lands shall apply to such lands.
It further provides that an inamdar in respect of the inam land in his actual possession or in possession of a person holding from him other than an inferior holder (subject to an exception which we shall mention just now) would be primarily liable to the State Government for the payment of land revenue due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force.
Thus by section 5 the holder of a personal inam became for all practical purposes an occupant under the Code liable to pay full land revenue and the advantage that he had under Acts II and VII of 1863 of paying only a part of the land revenue and retaining the rest for himself was taken away.
The exception which we have refer. red to above was where the inferior holder holding inam land paid an amount equal to the annual assess ment to the holder of the personal inam, such inferior holder would be liable to the State Government and would become an occupant of the land under the Code.
Section 7 then vests certain lands like public roads, paths and lanes, the bridges, ditches, dikes and fences, the bed of the sea and harbours, creeks below high water mark and of rivers, streams, nallas, lakes, wells and tanks, and all canals, water courses, all standing and flowing water, all unbuilt village sites, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes) in the State Government and extinguishes the rights of inamdar in them.
Section 8 deals with right to trees and section 9 with right to mines and mineral products.
Section 10 provides for compensation for extinguishment of rights under section 7 while section 11 gives a right of appeal from the order of the Collector under section 10.
Sections 12 to 16 deal with procedural matters and section 17 provides for payment of compensation for extinction or modification of an inamdar 's right which may not be covered by section 10.
Sub section (5) 948 of section 17 however says that " nothing in this section shall entitle any person to compensation on the ground that any inam village or inam land which was wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code ".
Section 17 A provides for the issue of bonds while section 18 provides for the application of the Bombay Tenancy and Agricultural Lands; Act, 1948, to any inam village or. inam land or the mutual rights and obligations of an inamdar and his tenants.
Section 19 provides for making of rules and section 20 deals with repeals and amendments.
It will be seen from this analysis of the Act that the main provisions are sections 4, 5 and 7.
So far as section 7 is concerned, there is provision for compensation with respect to lands vested in the State by virtue of that section.
But no compensation is provided for the rights extinguished by as. 4 and 5.
As we have seen already the main right of an inamdar was to hold his lands on payment of land revenue which was less than the full assessment and it is this right which has been abolished by sections 4 and 5 and the inamdar will now have to pay the full assessment.
No compensation has been provided for the loss which the inamdar suffers by having to pay the full assessment.
This brings us to the first contention.
On behalf of the appellants it is urged that what sections 4 and 5 extinguish is the right of the inamdar to appropriate to himself the difference between the full assessment and the quit rent, and this is not an estate within the meaning of Art, 3 1 A of the Constitution.
The relevant provisions in article 31 A for present purposes aref these: " 31 A (1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b). . . . (c). . . . 949 (d). . . . (e). . . . shall be deemed to be void on the ground that it is in consistent with or takes away or abridges any of the rights conferred by article 14, art 19 or article 31 ; Provided. . . (2) In this article (a) the expression ' estate ' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala any janmam right; (b) the expression 'rights ' in relation to an estate shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue ".
It will be, clear from the definition of the word estate " in article 31 A(2)(a) that it specifically includes an " inam " within it.
As such it would be in our opinion idle to contend that inams are not estates within the meaning of the expression " estate " for the purpose of article 31 A.
The Act specifically deals with inams and would thus be obviously protected under article 31 A from any attack under article 14, article 19 or article 31.
It is, however, urged that the right of the inamdar to appropriate to himself that part of full assessment which was left over after he had paid the quit rent to the Government is not a right in an estate.
This contention also has no force.
Inams being estates, the right of the inamdar to retain part of the full assessment over and above the quit rent payable to the Government arises because he holds the inam estate.
The right therefore can be nothing more than a right in an estate.
Besides the definition of the expression " rights " in article 31 A(2)(b) makes the position clear beyond all doubt, for it provides that the rights in relation to an estate would include any rights or privileges in respect of land revenue 121 950 Even if it were possible to say that the right of the inamdar to appropriate to himself the difference between the full assessment and the quit rent was not a right in an estate as such, it would become a right in an estate by virtue of this inclusive definition for the inamdar 's right could only be a right or privilege in respect of land revenue.
Besides, it is clear that the right in question falls under section 3(5) of the Code and as such also it is an estate under Art.31 A.
The contention of the appellants therefore that inams dealt with by the Act are not covered by the expression " estate " in article 31 A fails.
Their further contention that their right to retain the difference between full assessment and quit rent is not a right in an estate also fails.
The Act therefore when it extinguishes or modifies the rights of inamdars in the inam estates is clearly protected by article 31 A.
The next contention is that the Act does not provide for compensation and is therefore ultra vires in view of article 31.
We find, however, that the Act has provided for compensation under section 10 so far as that part of inam lands which are vested in the State by section 7 are concerned.
Further section 17 provides for compensation in a possible case where anything has been left out by section 7 and the inamdar is entitled to compensation for it.
It is true that by sub section (5) of section 17 no compensation is to be paid for the loss to the inamdar of what he used to get because of the difference between the quit rent and the full assessment.
It is how ever clear that article 31 A saves the Act from any attack under article 31 which is the only Article providing for compensation.
In this view of the matter the constitutionality of the Act cannot be assailed on the ground that it provides no compensation for extinction of certain rights.
There is no force in these appeals and they are hereby dismissed with costs.
One set only of hearing costs.
Appeals dismissed.

summary/full:
The appellants held personal inams which were governed by Bombay Acts Nos.
II and VII of 1863 by virtue of which they held their lands on payment of land revenue which was less than the full assessment.
After.
coming into force of the Bombay Personal Inams Abolition Act, 1952, the appellants who were affected by it Challenged the validity of the Act on the grounds, inter alia, (i) that the property which had been dealt with under the Act was not an estate inasmuch as what sections 4 and 5 extinguished was the right of the inamdar to appropriate to himself the difference between the full assessment and 944 the quit rent and this was not an estate within the meaning of article 31 A of the Constitution of India, and (2) that no compensation bad been provided in the Act for taking away the property of the appellants.
Held: (i) that the right of the inamdar to appropriate to himself the difference between the full assessment and the quit rent was a right in respect of land revenue and was therefore a right in an estate by virtue of the definition in article 31 A(2)(b).
Such a right also fell under section 3(5) Of the Bombay Land Revenue Code, 1879, and as such it was an estate under article 31 A.
Accordingly, the Act when it extinguished or modified the rights of inamdars in inam estates was protected by article 31 A. (2) that sub section
(5) Of section 17 of the Act under which no compensation was to be paid for the loss to the inamdar of what he used to get because of the difference between the quit rent and the full assessment, was not invalid as article 31 A saved the Act from any attack under article 31 which was the only Article providing for compensation.


judgement:
iminal Appeal No. 68 of 1958.
Appeal by special leave from the judgment and order dated July 11, 1957, of the Allahabad High Court (Lucknow Bench), Lucknow, in Criminal Appeal No. 515 of 1955, arising out of the judgment and order dated October 31, 1955, of the Special Judge, Anti corruption, Lucknow, in Criminal Case No. 2/3/32/45 of 1953 55.
Frank Anthony, Udai Pratap Singh and P. C. Agarwala, for the appellant.
G. C. Mathur and O. P. Lal, for the respondent.
December 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This appeal by special leave Gajendragadkar j. has been filed by C. 1.
Emden (hereinafter called the appellant) who has been convicted under section 161 of the Indian Penal Code and under section 5(2) of the Prevention of Corruption Act 2 of 1947 (hereinafter called the Act).
The case against him was that he had accepted a bribe of Rs. 375 from Sarat Chandra Shukla on January 8, 1953.
The appellant was a Loco Foreman at Alambagh Loco Shed, and Shukla had secured a contract at the same place for the removal of cinders 76 594 from ash pits and for loading coal.
This contract had been given to Shukla in June 1952.
The prosecution case was that the appellant demanded from Shukla Rs. 400 per month in order that Shukla may be allowed to carry out his contract peacefully without any harassment.
Shukla was told by the appellant that he had been receiving a monthly payment from Ram Ratan who had held a similar contract before him and that it would be to his interest to agree to pay the bribe.
Shukla, however, refused to accede to this request and that led to many hostile acts on the part of the appellant.
On January 3, 1953, the appellant again asked Shukla to pay him the monthly bribe as already suggested; Shukla then requested him to reduce the demand on the ground that the contract given to him was for a much lesser amount than that which had been given to his predecessor Ram Ratan; the appellant thereupon agreed to accept Rs. 375.
Shukla had no money at the time and so he asked for time to make the necessary arrangement.
The agreement then was that Shukla would pay the money to the appellant on January 8, 1953.
Meanwhile Shukla approached the Deputy Superintendent, of Police, Corruption Branch, and gave him information about the illegal demand made by the appellant.
Shukla 's statement was then recorded before a magistrate and it was decided to lay a trap.
Accordingly, a party consisting of Shukla, the magistrate, the Deputy Superintendent of Police and some other persons went to the Loco Yard.
Shukla and Sada Shiv proceeded inside the Yard while the rest of the party stood at the gate.
Shukla then met the appellant and informed him that he had brought the money; he was told that the appellant would go out to the Yard and accept the money.
At about 3 p.m. the appellant went out to the Yard and, after making a round, came to the place which was comparatively secluded.
He then asked Shukla to pay the money and Shukla gave him a bundle containing the marked currency notes of the value of Rs. 375.
A signal was then made by Shukla and the raiding party immediately arrived on the scene.
The magistrate disclosed his identity to the 595 appellant and asked him to produce the amount paid to him by Shukla.
The appellant then took out the currency notes from his pocket and handed them over to the magistrate.
It is on these facts that charges under section 161 of the Indian Penal Code and section 5(2) of the Act were framed against the appellant.
The appellant denied the charge.
He admitted that he had received Rs. 375 from Shukla but his case was that at his request Shukla had advanced the said amount to him by way of loan for meeting the expenses of the clothing of his children who were studying in school.
The appellant alleged that since he had been in need of money he had requested Kishan Chand to arrange for a loan of Rs. 500; but knowing about his need Shukla offered to advance him the loan, and it was as such loan that Shukla paid him Rs. 375 and the appellant accepted the said amount.
Both the prosecution and the defence led evidence to support their respective versions.
The learned special judge who tried the case believed the evidence given by Shukla, held that it was sufficiently corroborated, and found that the defence story was improbable and untrue.
The learned judge also held that on the evidence led before him the presumption under section 4 of the Act had to be raised and that the said presumption had not been rebutted by the evidence led by the defence.
Accordingly, the learned judge convicted the appellant of both the offences charged and sentenced him to suffer one year 's rigorous imprisonment and to pay a fine of Rs. 500 under section 161 of the Code and two years ' rigorous imprisonment under section 5 of the Act.
Both the sentences were ordered to run concurrently.
The appellant challenged the correctness and propriety of this order by his appeal before the High Court of Allahabad.
The High Court saw no reason to interfere with the order under appeal because it held that, on the facts of the case, a statutory presumption under section 4 had to be raised and that the said presumption had not been rebutted by the appellant.
In other words the High Court did not consider the prosecution evidence apart from the presumption since 596 it placed its decision on the presumption and the failure of the defence to rebut it.
In the result the conviction of the appellant was confirmed, the sentence passed against him under section 161 was maintained but the sentence under section 5(2) of the Act was reduced to one year.
The sentences thus passed were ordered to run concurrently.
It is against this order that the present appeal by special leave has been preferred by the appellant.
This appeal has been placed before a Constitution Bench because one of the points which the appellant raises for our decision is that section 4(1) of the Act which requires a presumption to be raised against an accused person is unconstitutional and ultra vires as it violates the fundamental right guaranteed by article 14 of the Constitution.
We would, therefore, first examine the merits of this point.
The Act was passed in 1947 with the object of effectively preventing bribery and corruption.
Section 4(1) provides that where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
Mr. Anthony, for the appellant, contends that this section offends against the fundamental requirement of equality before law or the equal protection of laws.
It is difficult to appreciate this argument.
The scope and effect of the fundamental right guaranteed by article 14 has been considered by this Court on several occasions; as a result of the decisions of this Court it is well estab.
lished that article 14 does not forbid reasonable classific ation for the purposes of legislation; no doubt it forbids class legislation; but if it appears that the 597 impugned legislation is based on a reasonable classification founded on intelligible differentia and that the said differentia have a rational relation to the object Sought to be achieved by it, its validity cannot be successfully challenged under article 14 (Vide: Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar (1).
In the present case there can be no doubt that the basis adopted by the Legislature in classifying one class of public servants who are brought within the mischief of section 4(1) is a perfectly rational basis.
It is based on an intelligible differentia and there can be no difficulty in distinguishing the class of persons covered by the impugned section from other classes of persons who are accused of committing other offences.
Legislature presumably realised that experience in courts showed how difficult it is to bring home to the accused persons the charge of bribery; evidence which is and can be generally adduced in such cases in support of the charge is apt to be treated as tainted, and so it is not very easy to establish the charge of bribery beyond a reasonable doubt.
Legislature felt that the evil of corruption amongst public servants posed a serious problem and bad to be effectively rooted out in the interest of clean and efficient administration.
That is why the Legislature decided to enact section 4(1) with a view to require the raising of the statutory presumption as soon as the condition precedent prescribed by it in that behalf is satisfied.
The object which the Legislature thus wanted to achieve is the eradication of corruption from amongst public servants, and between the said object and the intelligible differentia on which the classification is based there is a rational and direct relation.
We have, therefore, no hesitation in holding that the challenge to the vires of section 4(1) on the ground that it violates article 14 of the Constitution must fail.
Incidentally, we may refer ' to the decision of this Court in A. section Krishna vs The State of Madras (2) in which a similar challenge to the vires of a statutory presumption required to be raised under section 4(2) of the Madras Prohibition Act, 10 of 1937, has been repelled.
(1) ; (2) ; 598 That takes us to the question of construing section 4(1).
When does the statutory presumption fall to be raised, and what is the content of the said presumption? Mr. Anthony contends that the statutory presumpion cannot be raised merely on proof of the fact that the appellant had received Rs. 375 from Shukla; in order to justify the raising of the statutory presumption it must also be shown by the prosecution that the amount was paid and accepted as by way of bribe.
This argument involves the construction of the words " any gratification other than, legal remuneration " used in section 4(1).
It is also urged by Mr. Anthony that even if the statutory presumption is raised against the appellant, in deciding the question as to whether the contrary is proved within the meaning of section 4(1) it must be borne in mind that the onus of proof on the appellant is not as heavy as it is on the prosecution in a criminal trial.
Let us first consider when the presumption can be raised under section 4(1).
In dealing with this question it may be relevant to remember that the presumption is drawn in the light of the provisions of section 161 of the Indian Penal Code.
In substance the said section provides inter alia that if a public servant accepts any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing to do any official act, he is guilty of accepting illegal gratification.
Section 4(1) requires the presumption to be raised whenever it is proved that an accused person has accepted " any illegal gratification (other than legal remuneration) or any valuable thing.
" This clause does not include the receipt of trivial gratification or thing which is covered by the exception prescribed by sub section
The argument is that in prescribing the condition precedent for raising a presumption the Legislature has advisedly used the word " gratification " and not money or gift or other consideration.
In this connection reliance has been placed on the corresponding provision contained in section 2 of the English Prevention of Corruption Act, 1916 (6 Geo. 5, c. 64) which uses the words "any money, gift, or other consideration ".
The use of the 599 word gratification emphasises that it is not the receipt of any money which justifies the raising of the presumption; something more than the mere receipt of money has to be proved.
It must be proved that the money was received by way of bribe.
This contention no doubt is supported by the decision of the Rajasthan High Court in The State vs Abhey Singh (1) as well as the decision of the Bombay High Court in the State vs Pandurang Laxman Parab (2).
On the other hand Mr. Mathur, for the State, argues that the word " gratification " should be construed in its literal dictionary meaning and as such it means satisfaction of appetite or desire; that is to say the presumption can be raised whenever it is shown that the accused has received satisfaction either of his desire or appetite.
No doubt it is conceded by now that in most of the cases it would be the payment of money which would cause gratification to the accused; but he contests the suggestion that the word " gratification " must be confined only to the payment of money coupled with the right that the money should have been paid by way of a bribe.
This view has been accepted by the Bombay High Court in a subsequent decision in State vs Pundlik Bhikaji Ahire (3) and by the Allahabad High Court in Promod Chander Shekhar vs Rex (4).
Paragraph 3 of section 161 of the Code provides that the word " gratification " is not restricted to pecuniary gratification or to gratifications estimable in money.
Therefore " gratification " mentioned in section 4(1) cannot be confined only to payment of money.
What the prosecution has to prove before asking the court to raise a presumption against an accused person is that the accused person has received a " gratification other than legal remuneration "; if it is shown, as in the present case it has been shown, that the accused received the stated amount and that the said amount was not legal remuneration then the condition prescribed by the section is satisfied.
In the context of the remuneration legally payable to, and receivable by, a (1) A.I.R. (2) xi.
(3) (4) I.L.R. 1950 All.
600 public servant, there is no difficulty in holding that where money is shown to have been paid to, and accepted by, such public servant and that the said money does not constitute his legal remuneration, the presumption has to be raised as required by the section.
If the word " gratification " is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption.
Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by section 161 of the Code.
In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under section 4(1).
In the context we see no justification for not giving the word " gratification " its literal dictionary meaning.
There is another consideration which supports this construction.
The presumption has also to be raised when it is shown that the accused person has received any valuable thing.
This clause has reference to the offence punishable under section 165 of the Code; and there.
is no doubt that one of the essential ingredients of the said offence is that the valuable thing should have been received by the accused without consideration or for a consideration which he knows to be inadequate.
It cannot be suggested that the relevant clause in section 4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate.
The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more.
If that is the true position in respect of the construction of this part of section 4(1) it would be unreasonable to hold that the word " gratification " in the same clause imports the necessity to prove not only the payment 601 of money but the incriminating character of the said payment.
It is true that the Legislature might have used the word " money " or " consideration " as has been done by the relevant section of the English statute; but if the dictionary meaning of the word " gratification " fits in with the scheme of the section and leads to the same result as the meaning of the word " valuable thing " mentioned in the same clause, we see no justification for adding any clause to qualify the word " gratification"; the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification.
We would accordingly hold that in the present appeal the High Court was justified in raising the presumption against the appellant because it is admitted by him that he received Rs. 375 from Shukla and that the amount thus received by him was other than legal remuneration.
What then is the content of the presumption which is raised against the appellant ? Mr. Anthony argues that in a criminal case the onus of proof which the accused is called upon to discharge can never be as heavy as that of the prosecution, and that the High Court should have accepted the explanation given by the appellant because it is a reasonably probable explanation.
He contends that the test which can be legitimately applied in deciding whether or not the defence explanation should be accepted cannot be as rigorous as can be and must be applied in deciding the merits of the prosecution case.
This question has been considered by courts in India and in England on several occasions.
We may briefly indicate some of the relevant decisions on this point.
In Otto George Gfeller vs The King(1) the Privy Council was dealing with the case where the prosecution had established that the accused were in possession of goods recently stolen and the point which arose for decision was how the explanation given by the accused about his possession of the said goods would or should be considered by the jury.
In that connection Sir George Rankin observed that the appellant did not (1) A.I.R. 1943 P.C. 211. 77 602 have to prove his story, but if his story broke down the jury might convict.
In other words, the jury might think that the explanation given was one which could not be reasonably true, attributing a reticence or an incuriosity or a guilelessness to him beyond anything that could fairly be supposed.
The same view was taken in Rex vs Carr Briant (1) where it has been observed that in any case where either by statute or at common law some matter is presumed against an accused, " unless the contrary is proved the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the bands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish " (p. 612).
In other words, the effect of these observations appears to be to relax to some extent the rigour of "the elementary proposition that in civil cases the preponderance of probability may constitute sufficient ground for a verdict " (p. 611),(Also vide: Regina vs Dunbar (2)).
It is on the strength of these decisions that Mr. Anthony contends that in deciding whether the contrary has been proved or not under section 4(1) the High Court should not have applied the same test as has to be applied in dealing with the prosecution case.
The High Court should have inquired not whether the explanation given by the appellant is wholly satisfactory but whether it is a reasonably possible explanation or not.
On behalf of the State it is urged by Mr. Mathur that in construing the effect of the clause " unless the contrary is proved " we must necessarily refer to the definition of the word " proved " prescribed by section 3 of the Evidence Act.
A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act on the supposition that it exists.
He has also relied on section 4 which provides that whenever it is directed that the (1) (2) at p. 11.
603 court shall presume a fact it shall record such fact as proved unless and until it is disproved.
The argument is that there is not much room for relaxing the onus of proof where the accused is called upon to prove the contrary under section 4(1).
We do not think it necessary to decide this point in the present appeal.
We are prepared to assume in favour of the appellant that even if the explanation given by him is a reasonably probable one the presumption raised against him can be said to be rebutted.
But is the explanation.
given by him reasonably probable ? That is the question which must now be considered.
What is his explanation ? He admits that he received Rs. 375 from Shukla but urges that Shukla gave him this amount as a loan in order to enable him to meet the expenses of the clothes for his school going children.
In support of this the appellant gave evidence himself, and examined other witnesses, Kishan Chand and Ram Ratan being the principal ones amongst them.
The High Court has examined this evidence and has disbelieved it.
It has found that Kishan Chand is an interested witness and that the story deposed to by him is highly improbable.
Apart from this conclusion reached by the High Court on appreciating oral evidence adduced in support of the defence plea, the High Court has also examined the probabilities in the case.
It has found that at the material time the appellant was in possession of a bank balance of Rs. 1,600 and that his salary was about Rs. 600 per month.
Besides his children for whose clothing he claims to have borrowed money had to go to school in March and there was no immediate pressure for preparing their clothes.
The appellant sought to overcome this infirmity in his explanation by suggesting that he wanted to reserve his bank balance for the purpose of his daughter 's marriage which he was intending to perform in the near future.
The High Court was not impressed by this story; and so it thought that the purpose for which the amount was alleged to have been borrowed could not be a true purpose.
Besides the High Court has also considered whether it would have been probable that Shukla 604 should have advanced money to the appellant.
Having regard to the relations between the appellant and Shukla it was held by the High Court that it was extremely unlikely that Shukla would have offered to advance any loan to the appellant.
It is on a consideration of these facts that the High Court came to the conclusion that the explanation given by the accused was improbable and palpably unreasonable.
It is true that in considering the explanation given by the appellant the High Court has incidentally referred to the statement made by him on January 8, 1953, before the magistrate, and Mr. Anthony has strongly objected to this part of the judgment.
It is urged that the statement made by the appellant before the magistrate after the investigation into the offence had commenced is inadmissible.
We are prepared to assume that this criticism is wellfounded and that the appellant 's statement in question should not have been taken into account in considering the probability of his explanation; but, in our opinion, the judgment of the High Court shows that not much importance was attached to this statement, and that the final conclusion of the High Court was substantially based on its appreciation of the oral evidence led by the defence and on considerations of probability to which we have already referred.
Therefore, we are satisfied that the High Court was right in discarding the explanation given by the appellant as wholly unsatisfactory and unreasonable.
That being so it is really not necessary in the present appeal to decide the question about the nature of the onus of proof cast upon the accused by section 4(1) after the statutory presumption is raised against him.
In the result the appeal fails, the order of conviction and sentence passed against the appellant is confirmed and his bail bond cancelled.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant, who was working as a Loco Foreman, was found to have accepted a sum of Rs. 375 from a Railway Contractor.
The appellant 's explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school, The Special judge accepted the evidence of the contractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under section 4 Of the Prevention of Corruption Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under section 161 Indian Penal Code and section 5 Of the Prevention of Corruption Act, 1947.
On appeal the High Court held that on the facts of the case the statutory presumption under section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted, and upheld the conviction.
The appellant contended (i) that section 4 was ultra vires as it contravened article 14 of the Constitution, (ii) that the presumption under section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, (iii) and that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation.
Held, that section 4 of the Prevention of Corruption Act did not violate article 14 Of the Constitution.
The classification of public servants who were brought within the mischief of section 4 was based on intelligible differentia which had a rational relation to the object of the Act, viz,, eradicating bribery and corruption amongst public servants.
Ram Krishna Dalmia vs Shri justice section R. Tendolkar; , , followed.
A. section Krishna vs The State of Madras, ; , referred to.
The presumption under section 4 arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration.
The word " gratification ' 593 in section 4(1) was to be given its literal dictionary meaning of satisfaction of appetite or desire ; it could not be construed to mean money paid by way of a bribe.
The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration.
State vs Pundlik Bhikaji Ahire, and Promod Chander Shekhar vs Rex, I.L.R. 1950 All. 382, approved.
The State vs Abhey singh, A.I.R. 1957 Raj.
138 and State vs Pandurang Laxman Parab, , disapproved.
Even if it be assumed that the presumption arising under section 4(1) could be rebutted by the accused giving an explanation which was a reasonably probable one the High Court was right in holding that the explanation given by the appellant was wholly unsatisfactory and unreasonable.
Otto George Gfeller vs The King, A.I.R. 1943 P.C. 211 and Rex vs Cary Briant, (1943) I K.B. 607, referred to.


judgement:
minal Appeal No. 124 of 1959.
Appeal by special leave from the judgment and order dated June 19 and 20, 1959, of the former Bombay High Court in Criminal Appeal No. 411 of 1959 arising out of the judgment and order dated March 17, 1959, of the Presidency Magistrate XX Court, Mazagaon, Bombay in Case Nos.
1952 54/P of 1958.
B. M. Mistri, Ravinder Narain, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra for the Appellants.
Nur ud din Ahmed and R. H. Dhebar, for the Respondent. 1960.
November 18.
The Judgment of the Court was delivered by IMAM, J.
The appellants were convicted under sections 65(b), 65(f) and 66(b) of the Bombay Prohibition Act of 1949, hereinafter referred to as the Act, by the Presidency Magistrate XX Court, Mazagaon, Bombay.
The appellant No. 1 was sentenced to 9 months ' rigorous imprisonment and a fine of Rs. 1,000 under section 65(b).
No separate sentence was imposed under the other sections.
Appellant No. 2 was sentenced to 6 months ' rigorous imprisonment and fine of Rs. 500 under section 65(b).
No separate sentence was imposed under the other sections.
They appealed to the Bombay High Court against their convictions and sentence.
The High Court set aside their convictions under sections 65(b) and 66(b) of the Act but maintained their conviction under section 65(f ) read with section 81 relying on the presumption against the appellants arising out of section 103 of the Act.
The High Court accordingly directed that the sentence of imprisonment and fine imposed upon the appellants by the Presidency Magistrate under section 65(b) be regarded as the sentence of imprisonment and fine imposed on the appellants under section 65(f) read with section 81.
66 518 According to the case of the prosecution, there was a search on August 2,1958, of certain premises in the occupation of appellant No. 1 on the third floor of Dhun Mansion, Khetwadi 12th Lane.
A complete working still was found there and both the appellants were working it.
Appellant No. 2 was pumping air into the cylinder with a motor pump while appellant No. 1 was holding a rubber tube attached to the tank.
An iron stand with a boiler on it was also found there.
Below the boiler there was a stove which was burning.
There was also a big jar near the still.
According to the prosecution, this big jar contained illicit liquor.
Another glass jar was used as a receiver which, according to the prosecution, also contained 20 drams of illicit liquor.
The, boiler contained four gallons of wash.
There were also 11 wooden barrels containing wash.
In the drawing room of the premises a small glass jar containing 20 drams of illicit liquor, a bottle of 1 1/2 drams of illicit liquor and a pint bottle containing 3 drams of illicit liquor were also found.
A _panchnama was drawn up concerning the recovery of these articles.
It was the case of the prosecution that the appellants were manufacturing illicit liquor and were in possession of a still and other materials for the purpose of manufacturing intoxicant and were also in possession of illicit liquor.
The Presidency Magistrate was satisfied that a working still and illicit liquor in the glass jars and the two bottles were found in the premises in question.
The High Court also was of the opinion that a working still was found there but it thought that it would not be safe to rely upon the conflicting and unsatisfactory evidence in the case to hold that illicit liquor had been found in the premises in question, as it had not been satisfactorily proved that the bottles and the glass jars had been sealed in the presence of the panchas.
The High Court was further of the opinion that there was no evidence on the record to show that the very bottles which were attached and the sample bottles in which was contained the wash were the bottles which were examined by the Chemical Examiner in respect 519 of which he made a report to the Magistrate.
Accordingly, it was of the opinion that the convictions under sections 65(b) and 66(b) could not stand.
On behalf of the appellants it was urged that no presumption under section 103 of the Act could arise as it had not been established, on the findings of the High Court, that the still was an apparatus for the manufacture of any intoxicant as is ordinarily used in the manufacture of any intoxicant.
It was further argued that no questions were put to the accused, when they were examined under section 342 of the Code of Criminal Procedure, in this connection and therefore they had been denied the opportunity to rebut the presumption.
The Presidency Magistrate had not used the provision,,; of section 103 against the appellants because he had found that in fact illicit liquor had been recovered from the premises and that the still was for manufacturing such intoxicant.
If the Presidency Magistrate had at all intended to use the presumption under section 103 against the appellants, he was bound to have given them an opportunity to rebut it.
If at the appellate stage the High Court was of the opinion that it had not been established that any illicit liquor had been recovered as a result of the search, then it ought not to have convicted the appellants on the presumption arising under section 103 without giving the appellants an opportunity to rebut the same.
In this case the offence under section 65(f) would be the using, keeping or having in possession a still or apparatus for the purpose of manufacturing any intoxicant other than toddy.
It was not established by the evidence that the still or apparatus recovered from the premises occupied by appellant No. 1 was one which is not ordinarily used for the manufacture of toddy.
It was further urged on behalf of appellant No. 2 that he could not be convicted either for being in possession of the still or under section 65(f) read with section 81, that is to say, abetment of an offence under section 65(f) of the Act.
This appellant was merely a servant of appellant No. 1.
If any one was in possession of the still it was appellant No. 1.
There was also no evidence to show that appellant No. 2 had abetted 520 appellant No. 1 in coming into possession of the still.
Appellant No. 2 was merely using the pump, presumably under the orders of his master, and as he could not be said to be in possession of the still, no presumption against this appellant could arise under section 103 of the Act.
We would deal with the case of appellant No. 2 first.
There is no evidence that he in any way aided his master to come into possession of the still.
It would be reasonable to suppose that when he was using the pump he was doing so on the orders of his master and he may not have been aware of what was being manufactured, whatever suspicion may arise from his conduct.
It cannot also be said that he was in possession of the still.
The still was in the possession of his master.
He was merely an employee in the premises and cannot be said to be in physical possession of things belonging to his master unless they were left in his custody.
It seems to us that whatever suspicion there may be against the appellant No. 2 it cannot be said that it has been established beyond reasonable doubt that he was in such possession of the still as would amount to an offence under section 65(f) of the Act.
In the circumstances, no presumption could arise under section 103 against him that he was in posses sion of the still for which he could not account satis factorily.
We would accordingly allow the appeal of appellant No. 2 and set aside his conviction and sentence.
So far as the appellant No. 1 is concerned, there can be no question that he was found in possession of a still which, having regard to the nature of the still as disclosed by the evidence, is ordinarily used for the manufacture of an intoxicant such as liquor.
Having regard to the description of the still, as found on the record, we are satisfied that the still in question is not ordinarily used for the manufacture of toddy.
Indeed, it is doubtful that any still is required for the manufacture of toddy because toddy is either fermented or not.
If the toddy is unfermented the need for a still is unnecessary.
On the other hand, if the toddy is fermented, the process of fermentation is a natural 521 one and does not require the aid of any apparatus to ferment it.
It was said, however, that by heating the toddy, a higher degree of fermentation takes place and it becomes more potent.
We have, however, no evidence on the record as to this.
Even if we assume that toddy, when heated, becomes highly fermented and therefore more potent, there is nothing to show that the heating process to achieve this required an elaborate still of the kind found in the premises of appellant No. 1.
It was, however, pointed out that no questions were put to the appellant in order to give him an opportunity to rebut the presumption arising out of section 103 of the Act.
It is, however, to be remembered that when the appellant was examined under section 342 of the Code of Criminal Procedure he had volunteered the statement that he did not know about the various contraband seized by the police.
Since this was his attitude in the matter, it is difficult 'to understand what further questions could have been put to him to explain the possession of the still and the various other articles found in the premises occupied by him.
It is not possible to say in this particular case that this appellant had been prejudiced by the failure of the Magistrate to put to him any specific questions about the still and the other articles found in the premises occupied by him.
The presumption which arises under section 103 of the Act is that an offence under the Act is committed where a person is found in mere possession, without further evidence, of any still, utensil, implement or apparatus whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant until the contrary is proved.
it is difficult to conceive that the appellant could have given any satisfactory evidence to establish that the still and other articles found in the premises occupied by him could ordinarily be used for the manufacture of toddy.
We are accordingly satisfied that there was no prejudice caused to the appellant, in the circumstances of the present case, when the High Court relied upon the presumption arising under section 103 522 to uphold his conviction under section 65(f) of the Act.
It was finally urged that the sentence should be reduced.
In our opinion, the sentence imposed cannot be said to be unduly severe having regard to the provisions of the Act.
Accordingly, the appeal of appellant No. 2 is allowed and his conviction and sentence are set aside but the appeal of appellant No. 1 is dismissed.
Appeal disposed of accordingly.

summary/full:
During the search of the premises of the appellant No. 1 a complete working still was found which was being worked by the appellant No. 1 and his servant, appellant No. 2.
The presidency Magistrate was satisfied that a working still and 516 illicit liquor were found.
The appellant No. 1 was examined under section 342 of the Code of Criminal Procedure, he volunteered the statement that he did not know anything of the contraband seized by the police ; so no specific question about the still and other articles recovered from his premises were put by the Presidency Magistrate who convicted the appellants under sections 65(b), 65(f) & 66(b) of the Bombay Prohibition Act, relying on the facts of the recovery of still and illicit liquor and did not use the provision of section 103 for presumption against the appellants.
The appellants on appeal by special leave contended, (1) that no presumption under section 103 of the Act could arise ; and that he had been denied the opportunity to rebut the presumption under section 103 of the Act, as no questions were put to them when they were examined under section 342 of the Code of Criminal Procedure (3) that as the Magistrate had not used the provision of section 103 for presumption against the appellants, the High Court ought not to have convicted the appellants on the presumption arising under section 103 of the Act without giving them an opportunity to rebut the same.
On behalf of appellant No. 2 it was further urged that he was merely a servant of appellant No. 1; if any one was in possession of the still it was appellant No. 1 and no presumption against him could arise under section 103 of the Act.
Held, that when an accused is examined under section 342 of the Code of Criminal Procedure and volunteers statement denying all knowledge of articles recovered from his possession, no prejudice is caused to him if no further questions are put to explain the possession of articles found in the premises occupied by him.
The presumption which arises under section 103 of the Bombay Prohibition Act is that an offence under the Act is committed when a person is found in mere possession, without further evidence, of any still, utensil, implement or apparatus whatsoever for the manufacture of such intoxicant until contrary is proved.
Thus no prejudice was caused to the appellant No. 1 when the High Court relied upon the presumption arising under section 103 of the Act to uphold his conviction under section 65(f) of the Act.
Held, further, that it cannot be said of merely an employee in the premises that he was in physical possession of the things belonging to his master unless they were left in his custody, Where an offence under section 65(f) of the Bombay Prohibition Act has not been established beyond reasonable doubt and the possession of still does not amount to an offence under the section no presumption could arise under section 103 of the Act against a person that he was in possession of the still for which he could not account satisfactorily.
In the instant case the still being in the possession of the master and there being no evidence that the employee in any 517 way aided his master to come into possession of the still, it could not be said that the appellant No. 2 was in such possession of the still as would amount to an offence under section 65(f) of the Act.


judgement:
Appeal No. 198 of 1954.
Appeal from the judgment and order dated October 16, 1952, of the former Nagpur High Court in Misc.
; No. 1231 of 1951.
M. section K. Sastri, for the appellant.
H. L. Khaskalam, B. K. B. Naidu and I. N. Shroff, for the respondent.
64 502 1960.
November 18.
The Judgment of the Court was delivered by IMAM, J.
This is an appeal from the judgment of the Nagpur High Court dismissing the appellants petition under articles 226 and 227 of the Constitution of India.
The High Court certified under article 132(1) of the Constitution that the case involved a substantial question of law as to the interpretation of the Constitution.
Hence the present appeal.
The appellant was the Ruler of the State of Baster.
After the passing of the Indian Independence Act, 1947, the appellant executed an Instrument of Accession to the Dominion of India on August 14, 1947.
Thereafter, he entered into an agreement with the Dominion of India popularly known as "The Stand Still Agreement".
On December 15, 1947, he entered into an agreement with the Government of India whereby he ceded the State of Baster to the Government of India to be integrated with the Central Provinces and Berar (now the State of Madhya Pradesh) in such manner as the Government of India thought fit.
Con sequently the Governments in India came to have exclusive and plenary authority, jurisdiction and powers over the Baster State with effect from January 1, 1948.
The Legislature of the State of Madhya Pradesh passed the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh Act 1 of 1951), hereinafter referred to as the Act, which received the assent of the President of India on January 22, 1951.
The preamble of the Act stated that it was one to provide for the acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provisions for other matters connected therewith.
Under section 3 of the Act, vesting of proprietary rights in the State Government takes place on certain conditions,, mentioned in that section, being complied with.
The definition of 'proprietor ' is stated in section 2 cl.
(m) and it is "in relation to 503 (i) the Central Provinces, includes an inferior proprietor, a protected thekadar or other thekadar, or protected headman; (ii) the merged territories, means a maufidar including an ex Ruler of an Indian State merged with Madhya Pradesh, a Zamindar, Ilaquedar, Khorposhdar or Jagirdar within the meaning of wajib ul arz, or any sanad, deed or other instrument, and a gaontia or a thekadar of a village in respect of which by or under the provisions contained in the wajib ul arz applicable to such village the maufidar, the gaontia, or the thekadar, as the case may be, has a right to recover rent or revenue from persons holding land in such village;".
The definition of 'mahal ' is stated in section 2(j) and it is "mahal", in relation to merged territories, means any area other than land in possession of a raiyat which has been separately assessed to land revenue, whether such land revenue be payable or has been released, compounded for or redeemed in whole or in part;".
Before the High Court the appellant contended that he was still a Sovereign Ruler and absolute owner of the villages specified in Schedules A and B of his petition under articles 226 and 227 of the Constitution.
He urged that his rights had been recognized and guaranteed under the agreements entered into by him with the Government of India.
The provisions of the Act, therefore, did not apply to him.
It was further contended that the provisions of the Act did not apply to a Ruler or to the private property of a Ruler which was not assessed to land revenue.
He relied on article 6 of the Instrument of Accession and the first paragraph of article 3 of the Merger Agreement.
The High Court held that if the petitioner 's rights under article 6 of the Instrument of Accession and article 3 of the Merger Agreement had been infringed it was clear from the provisions of article 363 of the Constitution that interference by the courts was barred in disputes arising out of these two instruments.
The High Court was also of the opinion that article 362 of the Constitu tion was of no assistance to the appellant.
504 After referring to the definition of the word 'proprietor ' in the Act, the High Court was of the opinion that the word 'maufidar ' in section 2(m) of the Act had not been used in any narrow or technical sense.
A 'maufidar ' was not only a person to whom a grant of maufi lands had been made but was also one who held land which was exempt from the payment of "rent or tax".
It accordingly rejected the contention on behalf of the appellant that the word 'maufidar ' is necessarily confined to a grantee from the State or Ruler and therefore a Ruler could not conceivably be a maufidar.
The High Court also rejected the contention on behalf of the appellant that as he was a "Ruler" within the meaning of that expression in article 366(22) of the Constitution he did not come within the expression 'ex Ruler ' as contained in the definition of the word 'proprietor ' in the Act.
The expression 'Ruler ' as defined in article 366(22) of the Constitution applied only for interpreting the provisions of the Constitution.
The expression 'ex Ruler ' given in the Act must therefore be given the ordinary dictionary meaning.
According to Shorter Oxford English Dictionary, 'Ruler ' means "one who, or that which, exercises rule, especially of a supreme or sovereign kind.
One who has control, management, or head ship within some limited sphere".
The High Court accordingly took the view that although the appellant did exercise such a rule in the past he ceased to exercise it in his former Domain after the agreements of accession and merger had come into operation.
Accordingly the appellant must be regarded as an ex Ruler and as he was also a maufidar he fell within the definition of the word 'proprietor ' in the Act.
The question whether the villages mentioned in Schedules A and B of the petition under articles 226 and 227 of the Constitution fell in any of the categories, "Estates, Mahals, Alienated lands", was also considered by the High Court.
In its opinion they did not fall within the category of Estates or Alienated lands but they did fall within the category of Mahals.
According to the definition of 'Mahal ' in section 2(j) of the Act the same must be separately assessed to land 505 revenue.
According to the appellant they had not been assessed to land revenue but this was denied on behalf of the State of Madhya Pradesh.
The High Court was of the opinion that in these circumstances it was for the appellant to establish that the villages in question had never been assessed to land revenue but no evidence had been led to this effect.
On the contrary, according to the High Court, it would appear from the documents on the record that the villages known as 'Bhandar villages ' had been assessed to land revenue.
As the rest of the villages in Schedule A and the villages in Schedule B, upto the date of the High Court judgment, had not been recognized as the private property of the appellant by the Government of India as required by the second and third paragraphs of the Merger Agreement, the appellant could not assert his ownership over them.
The High Court, accordingly, dismissed his petition under articles 226 and 227 of the Constitution.
Two questions in the main were urged before us (1) whether the appellant is a proprietor within the meaning of that expression in the Act and (2) whether the villages in question came within the definition of the word 'mahal ' contained in the Act.
On behalf of the appellant it had also been urged that the Act could not defeat the rights of the appellant guaranteed under article 3 of the Merger Agreement.
It seems clear to us, however, that in view of the provisions of article 363(1) of the Constitution any dispute arising out of the Merger Agreement or the Instrument of Accession is beyond the competence of the courts to enquire into.
The High Court rightly decided this point against the appellant.
With reference to the first point we would first consider whether the appellant is an ex Ruler for the purposes of the Act.
That he is so factually cannot be denied, since he ceded his State to the Government of India to be integrated with the Central Provinces and Berar (now the State of Madhya Pradesh) in such manner as the Government of India thought fit.
He further ceded to the Government ' of India full and exclusive authority, jurisdiction and powers in relation 506 to the governance of his State when he agreed that the administration of that State would be transferred to the Government of India as from January 1, 1948.
The question is whether his recognition for the purposes of the Constitution as Ruler by virtue of the provisions of article 366(22) of the Constitution of India continues his status as a Ruler for purposes other than the Constitution.
article 366(22) states: " "Ruler" in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler".
Article 291 refers to the privy purse payable to Rulers.
It states: "Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse (a) such sums shall be charged on, and paid out of, the Consolidated Fund of India; and (b) the sums so paid to any Ruler shall be exempt from all taxes on income.
" Article 291 refers to any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution.
The covenant or agreement referred to in this Article certainly includes the Instrument of Accession and the Merger Agreement.
The effect of the Merger Agreement is clearly one by which factually a Ruler of an Indian State ceases to be a Ruler but for the purposes of the Constitution and for the purposes of the privy purse guaranteed, he is a Ruler as defined in article 366(22) of the Constitution.
There is nothing in the provisions of article 366(22) which requires a court to recognise such a person as a Ruler for purposes outside the Constitution.
In our opinion, the High Court rightly held that 507 the appellant was an ex Ruler and that article 366(22) of the Constitution did not make him a Ruler for the purposes of the Act.
As the appellant was an 'ex Ruler ', he was within the class of persons who were by name specifically included in the definition of 'proprietor ' and therefore clearly within the scope of the Act.
That the appellant was not only an ex Ruler but a maufidar appears to us to be clear.
The ordinary dictionary meaning of maufi is "Released, exempted, exempt from the payment of rent or tax, rent free" and maufidar is "A holder of rent free land, a grantee".
It was common ground in the High Court that the villages in question were exempt from the payment of rent or tax.
In our opinion, the High Court rightly took the view that the expression 'maufidar ' was not necessarily confined to a grantee from a State or a Ruler of a State.
A maufidar could be a person who was the holder of land which was exempted from the payment of rent or tax.
In our opinion, the appellant certainly came within the expression 'maufidar ' besides being an ex Ruler ' of an Indian State merged with Madhya Pradesh.
It is, however, contended on behalf of the appellant that the most important part of the definition was the concluding portion where it was stated that in the case of a maufidar he must be a person who by or under the provisions contained in the wajib ul arz applicable to his village, had the right to recover rent or revenue from persons holding land in such village.
It was contended that even if the appellant was a maufidar, there was nothing to show that with reference to any village held by him it was entered in the wajib ul arz, that he had a right to recover rent or revenue from persons holding land in such village.
In the petition under articles 226 and 227 of the Constitution, filed by the appellant in the High Court, it was nowhere asserted that even if he was regarded as a maufidar it was not entered in the wajib ul arz with respect to any of his maufi villages that he had a right to recover rent or revenue from persons holding land in such villages.
From the judgment of the High 508 Court it would appear that no such argument was advanced before it.
In the application for a certificate under article 132(1) of the Constitution we can find no mention of this.
In the statement of the case filed in this Court also there is no mention of this fact.
There is thus no material on the record to establish that the appellant as a maufidar had no right to recover rent or revenue from persons holding land in his villages.
The burden was on the appellant to prove this fact which he never attempted to discharge.
It is impossible therefore to accept this contention on behalf of the appellant raised for the first time before us in the course of the submissions made on behalf of the appellant.
Regarding the second point arising out of the definition of 'Mahal ', the High Court definitely found that the petitioner had given no evidence to establish that the villages in question were not assessed to land revenue.
On the contrary, at least with reference to the Bhandar villages documents on the record showed that these villages had been assessed to land revenue.
Since it was a question of fact whether the villages had been assessed to land revenue, which was denied on behalf of the State of Madhya Pradesh, the High Court rightly held that the contention of the appellant in this respect could not be accepted.
As for the other villages, in Schedules A and B of the petition of the appellant under articles 226 and 227 of the Constitution the High Court, in our opinion, rightly held that the petition was not maintainable as these villages had not yet been recognised by the Government of India as the private property of the appellant.
In our opinion, the appeal accordingly fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant was the Ruler of the State of Baster which was later integrated with the State of Madhya Pradesh.
He was recognised by the President as a Ruler under article 366(22) of the Constitution.
The respondent resumed certain lands belonging to the appellant under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950.
The appellant contended that he was still a Ruler and not an ex Ruler and as such did not come within the definition of "proprietor" given in the Act.
Held, that the appellant was an ex Ruler for the purposes of the Act and was within the class of persons who were by name included in the definition of 'proprietor ' and was within the scope of the Act.
Factually the appellant was an ex Ruler.
He was a Ruler for the purposes of the privy purse guaranteed to him.
There was nothing in article 366(22) which required a court to treat such a person as a Ruler for purposes outside the Constitution.
Further, the appellant was also a maufidar in respect of the lands acquired which were exempt from the payment of rent or tax.
The expression "maufidar" was not necessarily confined to a grantee from a State or a Ruler of a State; he could be the holder of land which was exempted from payment of rent or tax.