judgement:
ivil Appeals Nos.
579 to 594 of 1975.
Appeals by special leave from the judgment and order dated the 11 October 1974 of the High Court at Gauhati in Civil Rule Nos. 252, 293, 305, 640 and 730 of 1976, and 24, 405, 507 & 510/71, 515 to 517 of 1972 and 165 166 of 1975.
N. M. Lahiri with D. N. Mukherjee, for the appellants.
(in all the appeals) N. M. Lahiri with D. N. Mukherjee, for respondents in CAs 579 & 583 586/75.
section Chaudhuri for respondents in CAs 588 to 590/75 D. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587 590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591 592/75 N. M. Lahiri with D. N. Mukherjee for respondents in CAs 593 594 of 1975 Ex parte, for respondents in CAs 580 582, 593 594 of 1975 The Judgment of the Court was delivered by SARKARIA, J.
These appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard 415 to the interpretation and constitutional validity of sub clause (a) of A clause (26) of section 10 of the Income tax Act, 1961 (for short, called the 1961 Act).
The appeals will be disposed by a common judgment.
R. Takin Roy Rymbai (respondent in Civil Appeal 579 of ,1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi Jaintia Hills Autonomous District under the Sixth Schedule of the Constitution within the State of Meghalaya.
He joined service under the Government of Assam in 1941.
In the previous year relevant to the assessment year 1970 71, he was posted at Shillong as Secretary to the Government of Assam.
The Assam Secretariat building and office, which constitute his place of work was within that quarter of the town which is included in Shillong Municipality and is not a part of the area described in para 20 of the Sixth Schedule.
C The Income tax officer took the view that the assessee 's income from salary in the relevant year arose in the non scheduled area and as such, is not covered by the exemption provided under section 10(26) (a) of the Act.
The assessee claimed that his income from salary had accrued or arisen within the specified area and, as such, he was entitled to the exemption.
In the alternative, he contended that this was not a valid condition for denying him the benefit of the exemption under section 10 (26).
The Income tax officer over ruled these contentions and completed the assessment subjecting the assessee 's salary to tax.
The assessee thereupon filed a petition under Article 226 of The Constitution in the High Court for impugning the assessment orders and the notices of demand for the assessment year 1970 1971, on the ground that sub clause (a) of section 10(26) of the Act is invalid and ultra vires Article 14 of the Constitution.
The writ petition was heard by a Bench of three learned Judges of the High Court, which held that this exemption clause has been enacted for the benefit of the Scheduled Tribes residing in specified areas.
The object of this exemption clause, according to the High Court, will be frustrated and made nugatory if the income of a member of the Scheduled Tribe residing in the specified areas, is made subject to tax merely because the source of such an income is outside that area.
In its view, the classification between members of the Scheduled Tribes having income which accrues or arises to them from any source from the Tribal area or the specified territories on the one hand, and the members of Scheduled Tribe having income which accrues or arises to them from any source outside the Tribal areas or specified territories on the other, is not based on any intelligible differentia; the classification is artificial and is not based on any substantial distinction having a rational nexus to the purpose of the law.
On the contrary, the condition contained in sub clause (a) would defeat the very object of the exemption clause in section 10 (26).
For this enunciation, the High Court has sought support from this Court 's observations in section K. Dutta, Income tax officer and ors.
vs Lawrence Singh Ingty ( 1 ) .
(1) [1968] 2 S.C.R.165.
416 On the above reasoning, the High Court has struck down the aforesaid sub clause (a) as violative of Article 14 of the Constitution, allowed the writ petition and quashed the impugned notices and the orders of assessment.
The Department has now come in appeal before us after obtaining special leave under Article 136 of the Constitution.
The provisions of section 10 of the 1961 Act are in the nature of exemptions.
The various clauses of this section indicate the incomes which are to be excluded from computation of the total Income of a person under this Act.
For a proper perspective, it will be useful to have a look at the historical background of this provision.
The Indian Income tax Act, 1922 did not contain any provision specifically exempting members of the Scheduled Tribes from the levy of income tax.
It was the Finance Act 1955 that first incorporated in the Income tax Act, 1922 provisions for exemption of the Tribal people of the eastern region from payment of the tax.
These provisions relating to such exemptions were further amended and recast by section 3 of the Finance Act 1958 as follows: "section 4(3) XXI.
Any income of a member of a Scheduled Tribe defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule , to the Constitution or in the Union Territories of Manipur and Tripura, provided that such member is not in service of Government.
" J The 1961 Act then re enacted this clause as under: "10 (26) In the case of a member of a Scheduled Tribe as deemed in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government.
any income which accrues or arises to him.
(a) from any source in the area or Union Territories aforesaid, or (b) by wag of dividend or interest on securities.
" The State of Nagaland (Adaptation of Laws on Union Subjects) order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption.
The validity of the exclusion of the Government servants from the exemption given under section 10(26), as it stood before the amendment of 1970, came up for consideration before this Court in section K. Datta, Income tax officer and ors.
vs Lawrence Singh Ingty (supra).
It was held that the classification of Tribals into Government servants 417 and others for purposes of this exemption was violative of Article 14 of the Constitution and, as such, invalid.
Thereafter, Parliament passed the Taxation Laws (Amendment) Act 42 of 1970 whereby the words "who is not in the service of the Government" appearing in section 10(26), were deleted.
The North Eastern Areas (Reorganization) (Adaptation of Laws on Union Subjects), order 1974 amended this provision further with effect from January 25, 1972 so that it now reads as follows: "(26) in the case of a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area supecified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution (or in the State of Nagaland) Manipur and Tripura or in the Union Territories of Arunachal Pradesh and Mizoram or in the areas covered by Notification No. TAD/R/35/50/109, dated the 23rd February 1951, issued by the Governor of Assam under the provisions to sub paragraph (3) of the said paragraph 20 (as it stood immediately before the commencement of the North Eastern Areas (Reorganization) Act 1971 (81 of 1971) any ' income which accrues or arises to him, (a) from any source in the (area, State or Union territories) aforesaid, or (b) by way of dividend or interest, on securities".
An analysis of this provision shows that in order to entitle a person to the exemption, three conditions must co exist: (i) He should be as member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii) The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the (area, State or Union territories) aforesaid, or.
(b) by way of dividend or interest, on securities".
An analysis of this provision shows that in order to entitle a person to the exemption, there conditions must co exist: (i) He should be a member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii)The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the area, State or Union territories mentioned in the provision or (b) by way of dividend or interest, on securities".
Article 366(25) of the Constitution provides: "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution.
" H Article 342 empowers the President with respect to any State or Union Territory, and where it is a State, after consultation with the 418 Governor thereof, by public notification, to specify Tribes or Tribal communities or parts of or groups within tribes of tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes, as the case may be.
Clause (2) of this Article empowers the Parliament to exercise the some power by enacting a law The respondent belongs to Jaintia Scheduled Tribe which is one of the Scheduled Tribes notified under article 342(1).
The first condition for applicability of section 10(26) was thus indubitably satisfied.
Part II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution inter alia specifies the United Khasi Jaintia Hills District as one of the Tribal Areas.
According to the averments in the writ petition, the respondent is a permanent resident of the United Khasi Jaintia Hills autonomous District.
This allegation has not been denied by the other side.
Indeed, in the petition for special leave to appeal filed by the appellant the fact that he is a resident of a Tribal area specified in Paragraph 20 of the Sixth Schedule to the Constitution, is admitted.
The first two conditions necessary for claiming exemption under section 10(26) existed in the present case.
Whether on the facts of the case, the third condition embodied in sub clause (a) was satisfied or not, is a question which still remains to be determined.
The High Court has advisedly left it open.
The controversy has thus narrowed down into the legal issue: whether the classification made by sub clause (a) for the purpose of the exemption under section 10(26) between the income of a member of a Scheduled Tribe accruing or arising from any source in the area, State or Union Territories specified in the aforesaid Clause (26), and the income from a source outside such area, State or Union Territories is constitutionally valid? In answering this question in the negative, the High Court has propounded the proposition that the object of clause (26) of section 10 r is to grant a blanket exemption to members of Scheduled Tribes as a class residing in the specified areas, and that the condition contained in sub clause (a) is destructive of that object.
In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh Ingty 's case (supra) Mr. Lahiri appearing for the respondent, also, reiterates the reasoning of the High Court that the exemption was given to the Tribal people as a class, and not on the basis of their economic resources or sources of income.
In this connection Counsel has cited a few sentences from this Court 's judgment in Lawrence Singh Ingty 's case ,, (supra) .
With due respect to the learned Judges of the High Court, we are unable to accept this reasoning.
The matter now in controversy was, not even obliquely in issue before this Court in Lawrence Singh Ingty 's case.
Therein, the only question for decision was, whether the exclusion of the Government servants from the exemptions given in section 4(3) (XXI) of the Indian Income tax Act, 1922 and later on in section 10 (26) of the Income tax Act 1961.
was violative of Article 14 of the Constitution 419 Although sub clause (a) was very much there, its validity was not, even indirectly questioned.
The contention of the Revenue, therein, was that the exemption from income tax was given to members of certain Scheduled Tribes, due to their economic and social backwardness; that it was not possible to consider Government servants as socially and economically backward and hence the exemption was justly denied to the assessee, who was a Government servant having income from salary.
It was further urged by the Revenue that once a Tribal becomes a Government servant, he is lifted out of his social environment and assimmilated into forward sections of society and therefore he needs no more any crutch to lean on.
These arguments were found to be irrelevant and unsustainable.
In that context, the Court observed: "The exemption in question was not given to individuals either on the basis of their social status or economic resources.
It was given to a class.
Hence individuals as individuals do not come into the picture.
We fail to see in what manner the social status and economic resources of a government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer architect, etc.
To over paint the picture of a government servant as the embodiment of all power and prestige would sound ironical.
Today his position in the society to put at the highest is no higher than that of others who in other walks of life have the same income.
For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction having regard to the purpose of the law.
" The sentences which have been underlined are the sheet anchor of the arguments advanced by Mr. Lahiri.
In our opinion, they cannot be torn out of the context and used for spelling out a proposition different from what was actually decided in that case.
The ratio of that decision is that within the members of the Scheduled Tribes residing in specified areas selected by the State for the purpose of exemption, the mini classification between individuals who were government servants deriving income from salary and those who were not such government servants, was not based on intelligible differentia.
Since there was no rational whatever for this differentiation, it was held that within the range of the selection, the government servants had been unfairly discriminated against lawyers, medical practitioners, private servants, businessmen, etc.
whose income was derived from non government sources, and that the exclusion of government servants from the exemption under section 10(26) was bad and unconstitutional.
This vice of discrimination from which section 10(26) was then suffering, was removed when the Amending Act 42 of 1970 exercised the obnoxious limb of the provision.
The decision in Lawrence Singh Ingty is thus no authority for the proposition that the exemption granted under section 10 (26) to the members of the Scheduled Tribes residing in the specified areas, as a class, 420 could not be validly subjected to the condition contained in subclause (a) of the provision.
While it is true that a taxation law, cannot claim immunity from the equality clause in Article 14 of the Constitution, and has to pass like any other law, the equality test of that Article, it must be remembered that the State has in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion in the matter of classification for taxation purposes.
Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, properties, incomes and objects which it would tax, and which it would not tax.
So long as the classification made within this wide and flexible range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground of discrimination merely because it taxes or exempts from tax some incomes or objects and not others Nor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid.
It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14.
(See East India Tobacco Co. v State of Andhra Pradesh(l) Vivian joseph Ferriera vs Municipal Council of Greater Bombay;(2) Jaipur Hosiery Mills vs State of Rajasthan.(3) The validity or otherwise of the classification of income envisaged by sub clause (a), with reference to the source of income, for the purpose of the exemption under section 10(26) is to be judged in the light of the above principles.
Classification for purposes of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income tax Act.
Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern.
Section 2(45) defines total income to mean "the total amount of income referred to in section 5 computed in the manner laid down in this Act".
Section 5 makes the chargeability of income dependent upon the locality of accrual or receipt of the income.
It defines the extent total income with reference to the residence of the assessee, and thus makes the incidence of taxation dependent upon whether the assessee is a resident in India.
It is the residence in India which entails liability to tax.
A non resident is not liable in India to get his income assessed, but if any part of his income accrues or arises whether directly or indirectly through any business connection in India or from any property in India, the same would be assessable.
An ordinary resident as defined in section 6, does not attract additional chargeability but being "not ordinarily resident" entitles a person to partial exemption from (1)[1963] I S.C.R. 404.
(2) [1972] I S.C.C. 70.
(3) 421 chargeability as a resident, to which exemption a person who is "ordinarily resident" is not entitled (see Kanga and Palkhivala Vol.
I Income tax 6th Edn.
p. 162).
The 1961 Act abounds in instances whereby certain sources of income have been exempted from tax, while others are assessable.
Section 10 of the 1961 Act, itself contains no less than 30 instances of such classification for the purpose of granting exemptions from tax.
This is so, in spite of the fact that another source of the same person 's income may be assessable.
A person may have agricultural income apart from salary or business income.
The income from the former source is not to be included in the total income of the assessee (vide section 10(1) ); while income from the latter source is not so exempted.
Again, interest realised from Scheduled banks on deposits upto a certain limit is exempt, while interest realised from non banking concerns is assessable.
Sections 80A to 80U further provide exemptions from tax to incomes derived from certain sources.
A business man 's income is assessable, but if it is from a newly established industrial undertaking or priority industry, to that extent, the same is exempted.
Section 80H provides for deductions in cases of new industrial undertakings employing displaced persons etc.
It is not necessary to multiply such instances.
Suffice it to say that classification of sources of income is integral to the basic scheme of the 1961 Act.
It is nobody 's case that the entire scheme of the Act is irrational and violative of Article 14 of the Constitution.
Such an extravagant contention has not been canvassed before us.
Thus the classification made by the aforesaid sub clause (a) for purposes of exemption is not unreal or unknown.
It conforms to a well recognised pattern.
It is based on intelligible differentia.
The object of this differentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas.
If the contention advanced by Mr. Lahiri is accepted and a member of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside such areas, it will lead to potentially mischievous results and evasion of tax by assessees who do not belong to the Scheduled Tribes.
All that a non tribal assessee in India need do would be to enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him under the partnership a substantial share of the profits of the business while, in reality, pay the tribal only a nominal amount.
Moreover, but for the condition provided in sub clause (a), the exemption granted under section 10(26) is likely to operate unequally and cause inequality of treatment between individuals similarly situated.
A Tribal residing in the Scheduled areas earning large income from business located outside the specified areas, would be totally exempt while the non tribal whose source of income is a share in the same business would be taxed although with reference to the source of the income, both were similarly situated.
422 We are not persuaded to accept Mr. Lahiri 's argument that the making of the exemption conditional upon the classification envisaged by sub clause (a) would deter the members of the Scheduled Tribes from joining the mainstream of national life, or, would be inconsistent with the Directive Principle embodied in Article 46.
This Article contains a Directive Principle of State Policy for promotion of educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and Scheduled Tribes.
Its primary objective is to provide protection to the "weaker sections" of society.
Members of the Scheduled Tribes who are enterprising and resourceful enough to move out of the seclusion of the tribal areas and successfully compete with their Indian brethern outside those areas and rise to remunerative positions in service or business, cease to be "weaker sections".
In any case, the State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic interests.
In view of what has been said above, we are of opinion that the learned Judges of the High Court were in error in holding that the classification contemplated by sub clause (a) of cl.
(26) of section 10 of the 1961 Act is artificial and is not based on any intelligible differentia.
We would therefore, reverse the judgment of the High Court and hold that the aforesaid sub cause (a) is constitutionally valid Before we part with this judgment, we may note that Mr. Lahiri made a detailed survey of the history of the Tribal areas of Assam and Scheduled Tribes residing in those 'autonomous ' areas.
Counsel also argued that virtually the source of the salary received by the assessee lay in the Tribal areas forming the State of Meghalaya, notwithstanding the fact that on account of the exigencies of service, the office of the assessee was located in those Wards of Shillong which are not a part of the tribal areas.
In our opinion, it is not necessary to go into this question which, as already noticed, still remains open and undetermined.
In the result we allow these appeals, but in the circumstances ofthe case, leave the parties to pay and bear their own costs.
P.B.R. Appeals allowed.

summary/full:
Section 10(26)(a), Income tax Act, 1961 provides that a person is entitled to exemption from income tax if (1) he is a member of a Scheduled Tribe as defined in article 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned in section 10(26)(a).
and (3) the income in respect of which exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section.
The assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi Jaintia Hills Autonomous District referred to in para 20 of the Sixth Schedule to the Constitution.
He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution.
The Income tax officer held that .
the income of the assessee from his salary arose in the non scheduled area and was not covered by the tax exemption provided under section 10(26) (a).
In a writ petition under article 226 the assessee challenged the validity of 8. 10(26) (a) on the ground that the classification of members of Scheduled Tribes into those having income from a source within the specified areas and those having income from the source outside the areas was arbitrary.
The High Court struck it down as violative of article 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person was made subject to tax merely because the source of that income was outside that area.
Allowing the appeals of the Department, ^ HELD: The High Court was in error in holding that the classification contemplated by section 10(26)(a), Income Tax Act, 1961, was artificial and was not based on any intelligible differentia.
[422D] 1 (a) .
A taxation law, like any other law.
has to pass the equality test of article 14, but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax.
The mere fact that a tax falls more heavily on some in the same category, is not by itself a ground to render the law invalid.
It is only when, within the range of its selection.
the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of article 14.
[420B D] " East India Tobacco Co. vs State of Andhra Pradesh, [1963] I S.C.R. 404; Vivan Joseph Ferriera vs Municipal Council of Greater Bombay, ; and Jaipur Hosiery Mills vs State of Rajasthan, , followed.
(b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income Tax Act.
The classification made by sub cl.
(a) for the purpose of exemption is not unreal or unknown but conforms to a well recognised pattern and is based on intelligible differentia.
The object of this differentiation between income accruing or received from a source in the specified areas and 12 522SCI/76 414 the income accruing or received from a source outside such areas IS to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically.
[420F; 421E F] (c) If it is held that a member of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results.
A non Tribal assessee in India may enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amount and thus evade tax.
Also a tribal residing in the scheduled areas.
earning large profits from business located outside the specified areas would be totally exempt while a non tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated.
[421G H] (2) The decision in section K. Datta.
Income Tax officer and or$. vs Lawrence Singh Ingty; , , on which the High Court had relied is no authority for the proposition that the exemption granted under section 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in sub cl.
(a) of that provision.
The sentence that "the exemption in question was not given to individuals either on the basis of their social status or economic resources.
it was given to a class" occurring in that case could not be torn out of the contest and used for spelling out a proposition different from what was actually decided in that case.
[419H; F] (3) The State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded ` the protection and benefit in the matter of promotion of their educational and economic interests embodied in article 46 of the Constitution.
[422C]


judgement:
N: Criminal Appeal No. 181 of 1971 Appeal by special leave from the judgment and order dated the 25th and 28th September, 1970 of the Bombay High Court Nagpur Bench in Criminal Appeal No. 24 of 1968 with Crl.
A. No. 100 of 1968.
Harjinder Singh, for the appellant section B. Wad and M. N. Shroff, for the respondent The Judgment of the Court was delivered by SHINGHAL, J.
This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25/28, 1970.
The Additional Sessions 429 Judge of Khamgaon convicted them of offences under sections 325 and A 147 I.P.C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 50/ for the offence under section 325, and to rigorous imprisonment for six months and a fine of Rs. 25/ for the offence under section 147 I.P.C.
The High Court held, on appeal, that they were guilty of the offence under section 302 read with section 34 I.P.C. and sentenced them to imprisonment for life by setting aside their acquittal for " the offence of murder of Bhonaji.
Ninaji and Raoji were also convicted for an offence under s 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji 's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated on behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would confine the appeal to their conviction for the offence under section 302/ 34 I.P.C. for causing the death of Bhonaji.
We would therefore concern ourselves with the incident which resulted in Bhonaji 's death and the conviction of the appellants therefor.
Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commission of various offences in an incident which took place in mauza Narkhed in Buldana district on September 29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and ;their party on the other.
It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at `Gothan ', near the house of Bhonaji, because of the impounding of a she but also of Ananda (who was one of the nine accused in the case) by Bhonaji 's third son Madhukar and of the cow of Ninaji 's nephew Narain.
lt was alleged that the nine accused, including the present appellants, went to 'gothan '.
There was some altercation between accused Ananda and Samadhan and the parties beat each other.
r Samadhan and his relations then went to their house, which was close by.
Samadhan, who had received some injuries at 'gothan ', went inside his house to dress them up.
His father Bhonaji sat on an 'oota ' in front of the house.
It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there.
Reports of the incident were lodged at the police station.
Bhonaji succumbed to his injuries on October 2, 1966.
The police investigated and challaned nine accused including appellants Ninaji and Raoji.
The Additional Sessions Judge convicted them all, but acquitted Parashram and Ram Das.
While accused Ninaji and Raoji were convicted and sentenced as aforesaid the remaining five accused were convicted and sentenced for offences under sections 325 and 147 I.P.C. Or/ and 325/149 and 147 I.P.C. As has been stated, this appeal is by Ninaji`and Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death.
It has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present 13 L522SCI/76 430 at the incident which took place at 'gothan ', and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his 'oota '.
We have been taken through the evidence on the record, and we find that there is no justification for the argument that the fatal injury was caused to Bhonaji at 'gothan ', and not in front of his house.
We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonaji 's house was quite near the 'gothan ', there can be no doubt that the accused went to his house, after tho beating which had taken place at 'gothan '.
As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there.
The other argument of Mr. Harjinder Singh, which however requires serious consideration, is whether the appellants Ninaji and Raoji have rightly been convicted by the High Court for the offence under section 302 1[ ' read with section 34 I.P.C.
The finding of the High Court in this respect is as follows, "The evidence very clearly shows that these two persons . were responsible for assaulting Bhonaji as a result of which Bhonaji died.
It may be that they had in the beginning no common object or intention to assault Bhonaji but it does appear from the circumstances that these two persons, and i ' may be Parashram, formed a common intention at that moment and both of them dealt blows on Bhonaji which were on vital parts of the body such as head and neck.
The blows were given by sticks though the description of the sticks cannot be known because the sticks which have been recover ed in this case cannot be said to be sticks connected with the crime as such.
But from the nature of the blows which were given on the person of Bhonaji, it appears that the sticks were quite heavy and the blows of the sticks actually resulted in the death of Bhonaji.
When the blows were .
, given the accused must have intended to cause those injuries to Bhonaji.
They must be taken to have knowledge that Bhonaji was an old man and on account of the blows given by these accused his death was likely to be caused, particularly when the blows were given on vital parts of the body.
They must be taken to have knowledge that the injury they intended to cause to Bhonaji was likely to result in the death of Bhonaji.
The post mortem examination of Bhonaji shows that there were several fractures and fissures in the p head and the blows must have been dealt with quite an amount of force.
The accused Nos. 6 and 7 Ninaji and Raoji, therefore, would be guilty of an offence which would come under section 300, fourthly, because the accused Nos. 6 and 7 ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability r ;.
cause death or such bodily injury as is likely to cause death.
" 431 A perusal of the judgment shows that while the High Court took A the view, in the beginning, that the appellants had no common object or intention to assault Bhonaji, it took the view that they, and may be Parashram, "formed a common intention at that moment.
" It is not clear from the judgment at what moment of time such a common intention could be said to have been formed by them.
Moreover, the High Court has taken the view that both the appellants dealt blows on vital parts of Bhonaji 's body which resulted in his death and that when the blows were given the accused "must have intended to cause those injuries to Bhonaji" with the knowledge that he was an old man and his death was likely to be caused by those blows.
Therefore the question which requires consideration is whether it could be said that there was any evidence to show that more than one blow was inflicted on any vital part of Bhonaji 's body and whether both the assailants could be said to have inflicted the fatal injury with the knowledge that it was likely to cause death.
The High Court has stated that the post mortem examination showed that there were several fractures and assures in the head and that the "blows" must have been dealt with quite an amount of force.
Then t it has been further held by the High Court that the accused ought to p have known that their action in inflicting the injury was "so imminently dangerous" as to cause the death of an old person like Bhonaji.
As we shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law as well.
It is not disputed before us that there was an incident at 'gothan ' where there was a beating between the parties of the accused and Samadhan, and that Samadhan and his father Bhonaji returned to their house thereafter.
Samadhan (P.W.19) has himself stated that he went inside his house while his father Bhonaji sat outside, and that; when he (Samadhan) was tying a towel on his head to cover the injury which had been inflicted at 'gothan ', the party of the accused came to his door and called him out.
Sri Ram (P.W. 5) and Sukhdev (P.W. 7) have stated much to the same effect.
The evidence on record therefore showed that the common intention of the appellants was to settle their scores with Samadhan, and not Bhonaji.
In fact the High Court has also held as follows, "It does not appear that any of these persons had initially any idea of assaulting either Bhonaji or Rambhau, but they seemed to be only after Samadhan.
While Samadhan was being asked to come out of the house, the deceased Bhonaji must have abused or said something which infuriated some OF the accused persons and it is on account of this, it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji.
" It cannot therefore be said that the common intention of the accused was to cause the death of Bhonaji.
In fact the statement of Sri Ram (P.W. 5) shows that at the time when the accused came to Bhonaji 's house in search of Samadhan, Bhonaji was sitting on the platform or 432 'oota '.
Sukhdev (P.W. 7) has also stated to the same effect, and the statement of Samadhan (P.W. 19) also shows that his father was sitting in front of the steps of the house when they asked Samadhan to come out of the house.
It is therefore quite clear that the accused did not give a beating to Bhonaji even though he was sitting on the platform outside his house.
On the other hand, they passed him by, while calling Samadhan to come out.
They could not therefore be said to have the common intention or object of inflicting any injury on the person of Bhonaji till then.
It will be recalled that the High Court has not stated at what point d time they could be said to have formed the common intention of causing the death Bhonaji.
It appears from the statements of Rambhau (P.W. '1) and Tulsi Ram (P.W. 10) that on returning from 'gothan ' Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station.
That appears to be the point of time when the accused diverted their attention to him and gave him a beating, but there is nothing to show that their intention was to inflict any fatal injury.
As has been stated, the High Court has taken the view that more than one blow was given on vital parts of Bhonaji 's body and that caused several fractures and fissures in the head.
We have examined the correctness of that finding.
It has been stated by Dr. Garge (P.W. 40) that he performed the post mortem examination on the dead body of Bhonaji and that on external examination he noticed only one contusion 2" in diameter on the right temporal region of the head.
He made an internal examination and found that there was a depressed fracture of the skull, partly of the right temporal bone and right parietal bone, and fissured fractures of the left parietal, frontal and occipital bones the lines of which were "starting from the border of depressed fracture No. (1) and going away in different bones.
" The witness stated further that the depressed and fissured fractures were "due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance.
" It is therefore quite clear that there was only one blow on the head which caused Bhonaji 's death, and the High Court misread the evidence in taking the view that more than one blow was given on the head of the deceased.
This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under section 302 read with section 34 I.P.C.
Here again, we find that the evidence on the record has not been read correctly.
Kalawati (P.W. 2), Smt.
Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev (P.W. 7) have been examined as eye witness of the beating which was given to Bhonaji.
The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence.
Kalawati (P.W. 2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted.
She stated further that appellant Raoji gave a 433 blow with a stick on Bhonaji 's back, near the neck: She however admitted during her cross examination that she could not, explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonaji 's body.
Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased.
We have examined the statement of Smt.
Deoki Bai (P.W. 3) also.
She is the daughter in law of the deceased, being the wife of Rambhau.
She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji` hat fallen down on his face and the appellants were running away.
While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased.
Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a 'khunt ' near his neck.
In his cross examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji.
His statement could not also therefore prove the infliction of blows by both the appellants on the head of the deceased.
That leaves the statement of Sukhdev (P.W. 7) for consideration.
He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks.
He did not state about the infliction of any injury on the head, by any of the appellants.
It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt.
Kalawati (P.W. 2), Smt.
Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post mortem examination was inflicted by the one or the other of the two appellants.
The evidence on record therefore went to show that the, appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his 'oota ' but passed him by in search of Samadhan who was dressing his injuries inside the house.
Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station.
It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji.
Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai; The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries.
As has been shown.
there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji.
The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the 'khunt '.
They could therefore be convicted of an offence under section 325 read with section 34 I.P.C. and not section 302 read with section 34 I.P.C. 434 It may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was "likely to result" in his death, it observed at another place that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other.
On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made above.
The appeal is therefore allowed to the extent that the conviction of the appellants Ninaji and Raoji is altered from section 302/34 I.P.C. to one under section 325/34 I.P.C. and they are sentenced to rigorous imprisonment for five years thereunder.
Their sentences shall run con currently.
V.P.S. Appeal allowed in part.

dataset_name: IN-Abs

summary/full:
Nine accused were charged with offences of murder and causing hurt.
The trial Court acquitted two and convicted the others under sections 325 and 147, I.P.C. on appeal by the State, the High Court convicted the two appellants also under section 302 read with 8. 34.
I.P.C. Partly allowing their appeal to this Court, ^ HELD: The High Court has not examined the liability of the accused with due regard to the facts and circumstances of the case.
Instead of giving a categorical finding, the High Court stated at one place in its judgment that the appellants must be taken to have had the knowledge that the injury which they intended to cause to the victim was "likely to result" in his death, and in an other place, that the appellant were guilty of an offence under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim that their act must in all probability cause death or such bodily injury as is likely to cause death.
" But the evidence on record shows that the appellants did not have the common intention of giving a beating to the deceased when they reached his house but were only bent upon settling scores with his son.
It was only when the deceased asked another witness to get ready a bullock cart for making a complaint about the beating of his son that the appellants inflicted injuries on him.
But there was nothing to show that their intention was to inflict any fatal injury.
Only one of the injuries was a forceful blow on the head of the deceased and it resulted on his death.
But the other injuries were on the back of the neck, knees and right elbow of the deceased and not on any vital part of the body.
Therefore, the appellants had only the common intention of causing Grievous hurt.
Since there was no reliable evidence to show which of the two appellants gave the fatal blow, the appellants could only be convicted of an offence under section 325 read with section 34, I.P.C. [431F; 432C D, P G; 433E 434C]


judgement:
Civil Appeal No. 128 of 1971.
Appeal by special leave from the judgment and order dated the 19th September, 1969 of the Orissa High Court in O.J.C. No. 1759 of 1969.
Govind Das, for the appellants.
Ex parte for the respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment and order dated September 19, 1969, of the Orissa High Court in o.
J.C. No. 1759 of 1968 allowing the writ petition filed by respondents 1 to 3 herein and quashing the orders.
dated May 2, 1967, July 22, 1968, and December S, 1968, passed under sections 27 and 68 of the Orissa Hindu Religious Endowment Act 1951 (Orissa Act II of 1952) hereinafter referred to as 'the Act;.
Briefly stated, the facts giving rise to this appeal are: on June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub Division of Puri District filed an application before the Assistant Commissioner of Endowments Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as "Sri Lokenatheshwar Mahadev" situate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog ' to '`Lokenatheshwar Deb ' installed in the temple which is more than hundred years old and possessed about 24 acres of land endowed by The ancestors of the villagers; that a new temple in place of the old one which was in a dilapidated condition had been constructed with the labour and money contributed by the villagers.
that marfatdars, respondents l to 3 herein, were mismanaging the affairs of the institution and were not regularly performing the seva and puja etc.
of the said deity.
On July 31, 1966.
the said respondents were directed to submit returns as required under section 17 of the Act.
On August 4, 1966, the Inspector of Endowments was directed to make an enquiry and to submit a report regarding the allegations made by the said villagers; Pursuant to the said directions, the Inspector submitted his report on September 6, 1966, stating inter alia that the.
437 temple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Bantala an marfatdars came from one family and the persons managing the institution did not receive notice from him nor showed him the accounts and suggesting the names of five persons for appointment as trustees.
On November 4, 1966, a proclamation inviting objections regarding the suitability of persons suggested by the Inspector for appointment as non hereditary trustees was issued to which the aforesaid respondents objected claiming that the institution was a private one and even if it be held to be a public religious institution, they were the hereditary trustees.
After making a summary enquiry in the presence of the villagers including respondents 1 to 3, the Additional Assistant Commissioner of Religious Endowments passed an order on May 2. 1967, holding C that the institution was a public one and appointing five non hereditary trustees under section 27 of the Act.
The Additional Assistant Endowments Commissioner did not, however, record any finding whether the respondents 1 to 3 were hereditary trustees or not.
Aggrieved by this order, respondents 1 to 3 preferred on May 15.
1967 a revision application under section 9 of the Act before the 1 Commissioner of Hindu Religious Endowments, Orissa, Bhubaneswar.
On May 27, 1967, the appointed trustees filed a petition under section 68 of the Act for obtaining possession of the institution and its endowments from respondents 1 to 3.
On November 10.
1967, respondents 1 to 3 filed a petition under section 41 of the Act claiming that the institution was a private one.
It was alternatively claimed by the said respondents that even if the temple be held to be a public one they could not but be held to be hereditary trustees.
On July 22, 1968, an order directing delivery of possession of the institution and its endowments to the appointed trustees was passed under section 68 of the Act by the Assistant Commissioner of Endowments, Orissa.
On December S, 1968, the aforesaid revision application filed by respondents 1 to 3 was dismissed by the Commissioner of Hindu Religious Endowments and the Inspector of Endowments was directed to execute the writ of delivery of possession.
On December 26, 1968, the Inspector of Endowments made a report saying that the writ had been executed and possession as directed had been delivered to the appointed trustees on December 11, 1968.
On December 23, 1968 respondents 1 to 3 filed a petition under Articles 226 and 227 of the Constitution, being O.J.C. No. 1759 of 1968, before the High Court of Judicature, Orissa, challenging the aforesaid orders dated May 2, 1967, July 22, 1968 and December S, 1968 and praying that the said orders be quashed.
on the said writ petition, it was contended by respondents 1 to 3 that the aforesaid orders dated May 2, 1967 passed by the Additional Assistant Endowments Commissioner appointing non hereditary trustees of the institution under section 27 of the Act and order dated July 22.
1968 passed by the Assistant Endowments Commissioner directing delivery of possession of the institution and its properties to the non hereditary 438 trustees under section 68 of the Act encroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under section 41 of the Act as to whether the institution was a private or a public one and without further determining as to whether the respondents were hereditary trustees.
The said writ petition was contested on behalf of the appellants on the grounds that the scheme of the Act showed that provisions of section 27 of the Act were independent; that the exercise of` the power under section 27 was subject to final decision m appropriate proceedings under section 41 of the Act and that it was erroneous to contend that the provisions of section 27 could not be invoked without prior determination of the aforesaid questions under section 41 of the Act.
lt was, however, conceded on behalf of the appellants at the hearing of the writ petition before the High Court that the impugned orders could not be supported and were liable to be quashed as even a summary enquiry had not been made before appointment of non hereditary trustees under section 27 of the Act.
It was also conceded on behalf of the appellants that as an order under section 27 encroached upon the property rights of respondents 1 to 3 and even a summary 1) enquiry is required to be made by observing the principles of natural justice, the said respondents should have been given a full opportunity to substantiate their case to the effect that the institution and its properties were private and they were hereditary trustees.
It was, however, strongly contested on behalf of the appellants that the stand of respondents 1 to 3 that the orders dated May 2, 1967 and July 22, 1968 could not be passed without prior determination of the aforesaid questions under section 41 of the Act was not correct.
After examining the relevant provisions of the Act and the Rules and taking into account the , fact that respondents 1 to 3 had not been afforded an opportunity to substantiate their case and no evidence had r been taken by the Assistant Endowments Commissioner which might have prima facie gone to show that the institution was a public one and the said respondents were not hereditary trustees, the High Court held that the concession made on behalf of the appellants herein was well bounded; that it would be reasonable to confine the application of section 27 only to cases where in respect of the disputed institution, there had been a prior determination of the controversial rights mentioned in section 41 and that before the Assistant Endowments Commissioner could proceed under section 27 of the Act to appoint nonhereditary trustees in respect of the religious institution, it was necessary for him to come to a finding that the institution was a public one and there were no hereditary trustees thereof in existence and in order to come to such a finding, he should have completed an enquiry under section 41 which coupled with section 44 provided for a judicial determination of these very questions.
The High Court further held that since marfatdari right was itself property and the Act had no application to private endowments and respondents 1 to 3 were admittedly in possession of the institution and its properties, they could not be divested of the same without a finding that the institution was public and they were not hereditary.
trustees, 439 It would be advantageous at this stage to reproduce the ultimate conclusions arrived at by the High Court: "Before the Assistant Endowments Commissioner proceeds under section 27 to appoint non hereditary trustees in respect of a religious institution, he must first come to a finding that there are no hereditary trustees already in existence.
In order to come to such a finding he must first make an enquiry under section 41, which taken alongwith section 44, provides for judicial determination of this very question, involving the property rights of a citizen, by the Assistant Commissioner himself, after notice to the parties and taking evidence.
If no determination of this question is made, it will be open to the Assistant Commissioner to start an enquiry under section 41 suo motu.
It is only after the completion of the enquiry under section 41 that he can come to a finding about the existence or otherwise of hereditary trustees and only thereafter he can proceed to appoint non hereditary trustees.
It is also open to him, in the course of the proceeding under section 41, to pass interim orders for preserving the institution and its properties and also for safe guarding the rights of the aggrieved party pending final determination of the controversy.
Any order passed straightaway under section 27 which has the effect of dispossessing the hereditary trustees of their property without first resorting to an enquiry under section 41, would be illegal and contrary to the scheme of the Act.
" At the hearing of this appeal, counsel for the appellants has re iterated the stand taken by his clients in the High Court.
The short question that arises for determination in this case is whether the Assistant Endowments Commissioner had jurisdiction to proceed under section 27 of the Act without a prior decision of the disputes about the nature of the institution and the existence or other wise of the hereditary trustees.
For a proper determination of the aforesaid question.
it is necessary to refer to a few provisions of the Act and the rules made there under in so far as they are relevant for the purpose of this appeal.
Section 1 (2) makes the Act applicable to all Hindu Public religious institutions and endowments.
It excludes from its purview Hindu private religious institutions and endowments.
Section 3 (xiii) of the Act defines 'Religious Institution ' as under: "3(xiii). 'religious institution ' means a math, a temple and endowments attached thereto or a specific endowment and includes an institution under direct management of the State Government .
A 'religious endowment ' is defined in section 3(xii) as follows: "3(xii). 'religious endowment ' or endowment ' means all property belonging to or given or endowed for 440 the support of maths or temples or given or endowed for the performance of any service or charity connected there with or of any other religious charity, and includes the institution concerned and the permises thereof and also all properties used for the purposes or benefit of the institution and includes all properties acquired from the income of the endowed property." . . . . . .
Section 27 of the Act provides as under : "27 (1) .
The Assistant Commissioner shall, in cases where there is no hereditary trustee, appoint non hereditary trustees in respect of each religious institution other than maths and specific endowments attached thereto, and in making such appointments the Assistant Commissioner shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained.
" Section 41 of the Act runs thus: "41.
(1) In case of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters: (a) whether an institution is a public religious institution; (b) whether an institution is a temple or a math; (c) whether a trustee holds or held office as a hereditary trustee; (d) whether any property or money is of religious endowment or specific endowment; (e) . . . . (f) . . . . (g) . . . .
Provided that the burden of proof in all disputes or matters covered by clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment as the case may be".
Section 44 which makes provision for appeals runs thus: "44.
(1) Any person aggrieved by any order passed by the Assistant Commissioner under section 41 or sub sections (1) and (6) of section 42 or section 43 may, with in thirty days from the date of receipt of the order under section 41 or section 43 or from the date of the publication of the order under section 42 as the case may be, appeal to the Commissioner. "(2) Any party aggrieved by the order of the Commissioner under sub section (1) or under sub section (1) or 441 (6) of section 42 may appeal to the High Court within thirty days from the date of the order or publication there of as the case may be." Section 68 deals with delivery of possession of a religious institution, its record, accounts and properties to its trustee or executive officer.
Section 73 which bars the jurisdiction of ordinary courts lays down that no suit or other legal proceeding in respect of the administration of a religious institution or in respect of any matter or dispute for determining or deciding which provision is made in the Act shall be instituted in any court of law, except under, and in accordance with, the provisions of the Act.
Section 74 which relates to the procedure at enquiries and appeals and service of notice is in these terms: C "74(1) In relation to all proceedings before the Commissioner or the Assistant Commissioner, the orders in pursuance of which are under the provisions of this Act appealable to the High Court, the Commissioner or the ., Assistant Commissioner as the case may be, shall have the powers vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters: (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of documents; E (d) examining witnesses on oath, (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses.
and may summon and examine suo motu any person whose evidence appears to him to be material and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898, (2) The Commissioner and the Assistant Commissioner shall with resect to all such proceedings be deem ed to be persons acting judicially within the meaning of the Judicial officers Protection Act, 1 850.
G (3) The Court hearing on appeal from the order of the Commissioner may direct further enquiry or modify or set aside such order as the Court may deem fit; and unless the appeal is summarily dismissed the Commissioner shall be given an opportunity of being heard before the order passed by him is interfered with in any manner; provided that the operation of the order of the Commissioner shall not be stayed pending the disposal of the appeal".
442 76(1) confers on the State Government general power of making rules to carry out all or any of the purposes of the Act.
Sub section (2) of the section specifically enumerates the matters with respect to which the rules can be made and clause (d) thereof enables the State Government to make rules regarding holding of enquiries, summoning and examination of witnesses and production of documents.
Rule 43 of the Rules framed under section 76(d) of the Act provides: "In relation to all proceedings before the Commissioner or the Assistant Commissioner against whose orders an appeal lies to the High Court under the provisions of the Act, the Commissioner or the Assistant Commissioner as the case may be shall follow the provisions of the Civil Procedure Code, the Indian Evidence Act and the G.R.C.O.
Of the Orissa High Court as far as practicable and in so far as y they are consistent with the Act and the Rules.
In every other case the enquiry will always be of a summary nature and shall be conducted as in respect of suits of small cause nature with due notice to persons affected by the enquiry".
It is important to note that the Assistant Commissioner can ap point non hereditary trustees under section 27 of the Act only where two conditions are satisfied viz. (1) that the religious institution is not an excepted one and (2) that there is no hereditary trustee of the institution.
For the exercise of the power by the Assistant Commissioner under this section, it is, therefore, absolutely necessary that either there should be no dispute about the public nature of the institution and the non existing of hereditary trustees or in case, there is a dispute about any of these matters, a prior determination of such dispute under section 41 of the Act has been made.
Without such preliminary determination if an appointment of a non hereditary trustee is made under section 27 of the Act and a direction is given regarding delivery of possession of the institution etc.
under section 68 of the Act, it would be manifestly illegal and without jurisdiction.
A careful scrutiny of the provisions of the Act makes this position amply clear.
As pointed out by the High Court.
section 27 does not in terms provide that Assistant Commissioner should make an enquiry as to whether the institution is public or private and whether there are hereditary trustees of the institution or not.
These questions have to be gone into under section 41 of the Act which specifically deals of with the investigation and decision of disputes in respect thereof.
Consequently, a prior determination under section 41 that the institution is public and has no hereditary trustee is a sine qua non for appointment of trustees under section 27 of the Act.
This view also gains strength from the fact that there is a marked difference as regards the procedure to be followed in respect of proceedings under sections 27 and 41 of the Act.
Whereas an enquiry, if any, in proceedings under section 27 of the Act because of the non appealable nature of the order passed thereunder in view of section 44 of the Act is of a summary character in which the affected 443 person does not get a reasonable chance of presenting his entire case and evidence is not required to be recorded verbatim, it is otherwise in case of proceedings under section 41 of the Act where the enquiry has to be judicial and Elaborate in view of the fact that the parties are entitled as a matter of right to be heard in support of the claim and to adduce evidence in proof thereof.
(See Ramakrishna Padhy vs Ramesh Chandra Das & Ors(1).
In the latter case, because of the complicated nature of the questions involved and the appealable character of the orders that may be passed thereunder, the Commissioner or the Assistant Commissioner has to act like a Court and is required to follow, as far as practicable, the provisions of the Code of Civil Procedure, the Indian Evidence Act and the G.R.C.O.
Of the Orissa High Court in so far as they are consistent with the Act and the Rules.
This becomes clear from a conjoint reading of section 74 of the Act and Rule 43 of the Rules framed under the Act.
It would also be relevant to notice that there is no Provision in section 27 of the Act identical to the one contained in order 21, Rule 63 of the Code of Civil Procedure to the effect that the summary decision given thereunder would be subject to the decision that may be given under section 41 of the Act.
It has also to be pointed out that successive determination of questions under section 27 and 41 of the Act is not possible in view of the doctrine of res Judicata.
It is also significant that the safeguard relating to appeal both on a point of fact and law (See Sri Sadasib Prakash Brahmachari Trustee of Mahiprakash & Ors.
`The State of Orissa(2) and the intervention of the High Court which is available in respect of orders made under section 41 of the Act is not available in case of orders under section 27 of the Act.
The non availability of the valuable right of an appeal in respect of an order under section 27 of the Act is of fundamental importance and leads to the irresistible conclusion that section 27 cannot exist in isolation and determination of the aforesaid questions is necessary under section 41 of the Act before non hereditary trustees can be appointed.
There can.
therefore, be no manner of doubt that the Assistant Endowments Commissioner has no jurisdiction to appoint a non hereditary trustee of a religious institution under section 27 of the Act without prior determination of the questions that the institution is a public one and has no hereditary trustees.
We are fortified in our view by the decision of this Court in Sri Jagannnth Ramanuja Das & Anr.
vs State of Orissa.(9) .
In that case, the Bihar State Board of Religious Trusts constituted under the Bihar Hindu Religious Trusts Act, 1950 (I of 1951) passed an order in exercise of the powers conferred on it under section 59 of the Act asking the appellant to furnish to the Board a return of income and expenditure of the temple known as 'Salouna Asthal '.
The appellant replied saying that the Asthal was a private institution and not a religious one within the meaning of the Act; that the properties appertaining to the temple did not constitute a religious trust and the appellant H (1) A.I.R. 1959 Orissa 98.
(2) (3) ; 444 was not a trustee within the meaning of the Act.
On getting unfavorable answer, the appellant made an application to the High Court of Patna under Article 226 of the Constitution challenging the demand which was dismissed.
On the matter being brought.
before this Court by the appellant, the aforesaid order of the Board was quashed and the respondent was directed not to interfere with the properties appertaining to the 'Salouna Asthal ' without obtaining the necessary declaration under section 43 of the Act.
Before concluding we would like to observe that we are not at all impressed by the submission made on behalf of the appellants that if the interpretation placed on the provisions of sections 27 and 41 of the Act by the Orissa High Court is taken as correct, it would become difficult to exercise effective control on public religious institutions as proceedings under section 41 take long time.
As rightly observed by the High Court, the courts are meant to interpret the law as it stands.
It is not their function to legislate and to imagine difficulties.
The argument cannot also be countenanced as it overlooks the explanation appended to section 7 whereunder the Commissioner has been given power to pass such interim orders as he may deem necessary for the proper maintenance, administration and management religious institutions and endowments when a dispute concerning the same is pending.
We also find it difficult to accept the submission made by counsel for the appellants that in view of the fact that a duly verified application on proper court fee is necessary for determination of the questions enumerated in section 41 of the Act, no enquiry under the said pro visions of the Act can be held suo motu by the Assistant Endowments Commissioner.
The fact that it may be necessary for a private individual to make an application on proper court fee to the Assistant Commissioner for determination of any of the disputes enumerated in section 41 cannot, in the absence of a specific prohibition, debar the said authority from taking action suo motu under the said provisions of the Act.
This is, however, a matter with which we are not concerned in the present appeal as respondents 1 to 3 had made an application under section 41 of the Act in which unfortunately no proceedings were taken by the Assistant Commissioner.
For the foregoing reasons, we are satisfied that the High Court was right in holding that it was only after completion of the enquiry under section 41 of the Act and determination of the questions that the religious institution was not public and there were no hereditary trustees thereof that the Assistant Commissioner could appoint non hereditary trustees and pass orders regarding delivery of possession to them of the institution.
In the result the appeal fails and is hereby dismissed.
P.H.P. Appeal dismissed.

summary/full:
Some villages made an application before the Assistant Commissioner of Endowments, Orissa, for appointment of non hereditary trustees under section 27 of the, Orissa Hindu Religious Endowments Act, 1951, for Shiva temple which is more than 100 years old and possesses about 24 acres of land.
A new temple was constructed in place of the old dilapidated temple by the money contributed by the villagers.
It was alleged that respondents Nos. 1 to 3 were mismanaging the affairs of the temple and were not regularly performing the puja or the duty.
An enquiry was ordered pursuant to which the Inspector submitted his report stating that the temple was a public temple and that respondents Nos.
1 to 3 did not show accounts to the Inspector and that, therefore, names of 5 persons were suggested for appointment of non hereditary trustees.
A proclamation inviting objections regarding the suitability of 5 persons was issued.
After making a summary enquiry in the presence of the villagers including respondents Nos. 1 to 3 the Additional Assistant Commissioner passed an order holding that the institution was a public one and appointed 5 non hereditary trustees under section 27 of the Act.
He, however, did not record any finding whether respondents Nos.
1 to 3 were hereditary trustees or not.
A revision Application filed to the Commissioner of Hindu Religious Endowments failed.
Respondent Nos.
I to 3 filed a writ petition in the High Court contending that the order of appointment of non hereditary trustees under section 27 of the Act encroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under section 41 of the Act as to whether the institution was a private or a public one and without further determining as to whether the respondent were hereditary trustees.
The appellants contended before the High Court that the provisions of section 27 were independent and that it could be invoked without prior determination of the question under section 41.
The High Court allowed the writ petition holding that section 27 should be applied only where in respect of the disputed institution there had been a Prior determination of the controversial rights mentioned in section 41 and that before the Assistant Endowments Commissioner could proceed under section 27 of the Act to assess non hereditary trustees it was necessary for him to come to a finding that the institution was a public one and there were no hereditary trustees thereof in existence and in order to come to such a finding he should have completed an enquiry under section 41 which coupled with section 44 provided for a judicial determination of these very questions.
Under section 41 in case of a dispute the Assistant Commissioner has power to enquire into and decide whether an institution is a public religious institution and whether a trustee holds office as a hereditary trustee.
Under section 27, the Assistant Commissioner has power to appoint non hereditary trustees in respect of each religious institution in cases where there are no hereditary trustees, Dismissing the appeal, ^ HELD: 1.
The Assistant Commissioner can appoint non hereditary trustees under section 27 of the Act only where two conditions are satisfied : (i) that the religious institution is not an excepted one, and (ii) there are no hereditary trustees of the institution.
436 For the exercise of the powers under.
section 27, therefore, either there should be no dispute about the two conditions or if there is a dispute a prior determination of such dispute under section 41 of the Act has to be made.
Without such preliminary determination an appointment of non hereditary trustees under section 41 since there is no specific prohibition.
[444D E] 2.
Under section 27.
the enquiry is of a summary character in which the affected person does not get a reasonable chance of presenting his entire case and evidence is not required to be recorded verbatim.
It is otherwise in case of Proceedings under section 41 where the enquiry has to be judicial and elaborate.
[442H. 443A] 3.
It is also not correct that a duly verified application on a proper court fee is necessary for the determination of the questions enumerated in section 41 of the Act.
An enquiry can be made suo moto by the Assistant Endowments.
Commissioner for determination of any of the disputes enumerated in section 41 since there is no specific prohibition.
[444D E]


judgement:
Civil Appeal No. 475 of l973.
(Appeal by Special Leave from the Judgment and order dated the 26 4 1972 of the Bombay High Court in Special Civil Application No. 165 of 1972) 17 L522 SCI/76 494 S.B. Wad and M. section Ganesh, for the appellant.
P.H. Parekh, for the respondent.
The judgment of the Court was delivered by CHANDRACHUD, J.
The appellant owned a land, Survey No.72, at Shiroli in the district of Kolhapur.
The land was held by the appellant for the performance of miscellaneous inferior services and was classified as a Huzur Sanadi Inam land.
Respondents have been in possession of a portion of the land as tenants and were declared as purchasers under the Bombay Tenancy and Agricultural Lands Act, LXVII of 1948, (hereinafter called the Tenancy Act).
Consequent upon the declaration, the Agricultural Lands Tribunal, Hatkanagale, fixed the price of the land under section 32G of the Tenancy Act.
That decision was confirmed in appeal by the Special Deputy Collector, Kolhapur, and in revision by the Maharashtra Revenue Tribunal.
The appellant filed a petition in the Bombay High Court under article 227 of the Constitution to challenge the decision of the Revenue Tribunal bu that petition was dismissed summarily by a learned Single judge.
This appeal by special leave is directed against the order of the High Court.
The Tenancy Act provides by section 32 that on April 1, 1957, called the "tillers day", every tenant shall, subject to certain conditions, be deemed to have purchased from his landlord the land held by him as a tenant.
Section 32G requires the Agricultural land Tribunal to determine the purchase price of the land in accordance with a statutory formula.
The dispute before us is not as regards the arithmetic of the price fixation but as regards whether the respondents are qualified ar all to purchase the land under section 32 of the Tenancy Act.
The right of a tenant to opt for a compulsory purchase of the agricultural land held by him is no longer open to constitutional doubt or difficulty.
But, the respondents ' right to purchase the land is questioned by the appellant on the ground that they ceased to be tenants and have therefore no right of purchase.
This plea is founded on the provisions of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, XVII of 1955 (hereinafter called the Alienations Abolition Act).
It is argued that with the abolition of Inams effected under that Act, the old relationship of landlord and tenant between the appellant and respondents came to an end, that with the re grant of occupancy rights to the appellant a new relationship of landlord and tenant came intro existence between them and since the respondents did not exercise their right to repurchase the land within the period prescribed by section 32 O of the Tenancy Act, they have forfeited that right.
According to the appellant, the provisions of the Tenancy Act and the Alienations Abolition Act are in a material respect inconsistent and the inconsistency has to be resolved by giving precedence to the latter Act.
The merit of these contentions depends upon the validity of the basic that with the abolition of Inams which the Alienations Abolition act brought about, the relationship of landlord and tenant 495 between the appellant and the respondents came to an end.
We see no warrant for this premise.
By section 4 of the Alienations Abolition Act, all alienations in the merged territories were abolished with effect from the appointed date.
As a result of the abolition of Inams effected by section 4, all alienated lands became liable under section S to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code, 1879.
Sections 6, 7, 8 and 9 of the Alienations Abolition Act provide for the grant of occupancy rights in respect of the erstwhile Inam lands.
There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex Inamdar and his tenant would stand extinguished.
On the contrary, section 28 provides that nothing contained in the Act shall in any way be deemed to affect the application of any of the provisions of the Tenancy Act to any alienated land or, "the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are not in any way inconsistent with the express provisions of this Act".
None of the provisions of the Tenancy Act, particularly the provision contained in section 32 of the Tenancy Act under which tenants became entitled to purchase the lands held by them in that capacity on the tillers ' day, is in any way inconsistent with any of the express provisions of the Alienations Abolition Act.
Section 32 of the Tenancy Act must therefore govern the rights of the ex Inamdar and his tenants notwithstanding the abolition of the Inams brought about by the Alienations Abolition Act.
Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act, they are entitled to purchase the land under section 32.
Consequently, it was competent to the Agricultural Lands Tribunal to commence the price fixation proceedings under section 32G of the Tenancy Act.
Section 32 o of the Tenancy Act applies only to tenancies created after the tillers ' day.
It provides that in respect of such tenancies, a tenant desirous of exercising the right of purchase must give an intimation to the landlord and the Tribunal within one year from the commencement of his tenancy.
As observed by us, the relationship of landlord and tenant between the appellant and respondents did not come to an end on the introduction of the Alienations Abolition Act nor indeed is there any legal justification for the theory that on the cesser of that relationship a new relationship of landlord and tenant came into existence between the parties so as to attract the application of section 32G.
The object of the Alienations Abolition Act was "to abolish . alienations of miscellaneous character 2 prevailing in the merged territories", that is to say, to abolish the Inam grants prevailing in those territories.
The elimination of Inamdars as intermediaries, not the eviction of the tillers of the soil, was the object of that Act.
By section 4, what was abolished was all alienations, all rights legally subsisting in respect of a1ienations and all other incidents of such alienations.
A tenancy created by an Inamdar is not a right in respect of the alienation nor an incident of the alienation.
In simple words, a11 rights of the Inamdars stood determined on the 496 introduction of the Alienations Abolition Act; the rights of tenants continued to exist and were expressly protected by section 28 of the Alienations Abolition Act.
The provision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenant 's right of purchase under section 32.
Section 32G(6) provides that if any land is re granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule IlI of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re grant and such person shall, as a tenant, be deemed to have purchased the land under section 32G as if the condition that it was not transferable was not the condition of re grant.
The Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21.
Thus, even if the land, after the abolition of the Inam effected under the Alienations Abolition Act, was re granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act.
In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of nontransferability.
It is undisputed that the respondents were holding the land on.
a lease created before the occupancy rights were re granted to the appellant on the abolition of the Inam.
The questions raised before us on behalf of the appellant merited careful consideration and we would have been happy to have the benefit of a considered judgment by the High Court.
But the Revenue Tribunal was right in its decision and so the summary dismissal of the Writ Petition by the High Court has not caused any failure of justice.
In the result, the appeal fails and is dismissed.
We are thankfuI to Shri Parekh for assisting us in the case as amicus.
P.H.P. Appeal dismissed.

summary/full:
The appellant owned a land which was held for the of miscellaneous inferior services and was classified as a Huzur Sanadi Inam land.
The respondents were in possession of the land as tenarlts and were declared as purchasers under the Bombay Tenancy & Agricultural Lands Act, 1948.
The Tenancy Act provides by section 32 that on 1st April, 1957, every tenant subject to certain conditions shall be deemed to have purchased from his landlord the land held by him as a tenant.
The Bombay Legislature passed the Bombay Merged Territories Miscellaneous Alienations Abolition Act of 1955.
The appellant contended that in view of the provisions of the Abolition Act, the relationship of landlord and tenant came to an end between the appellant and the respondents and that, therefore, respondents have no right to purchase the land.
The contention of the appellant was negatived by the Agricultural Lands Tribunal which was confirmed in appeal by the special Deputy Collector and in revision by the Maharashtra Revenue Tribunal.
A writ petition filed by the appellant in the High Court of Bombay was summarily dismissed Dismissing the appeal by Special Leave, ^ HELD: 1.
By section 4 of the Abolition Act, all alienations in the Merged Territories were abolished with effect from the appointed date.
Sections 6, 7, 8 and 9 of the Abolition Act provide for the grant of occupancy rights hl respect of the erstwhile Inam Iands.
There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex lnamdar and his tenant would stand extinguished.
On the contrary, section 28 Provides that nothing contained in the Act shall in any way be deemed to effect the application of any of the provisions of the Tenancy Act to any alienated land or the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are in any way inconsistent with the express provisions of the Act.
The provisions of the Tenancy Act contained in section 32 are in no way inconsistent with any of the express provisions of the Abolition Act.
[495 A, B C, & D] 2.
Section 32(O) of the Tenancy Act applies only to tenancies created after the tiller 's day.
[495E] 3.
The object of the Abolition Act was the elimination of Inamdars as intermediaries and not the eviction of the tillers of the soil.
[495G] 4.
Section 32G(6) of the Tenancy Act shows that nothing contained in the Abolition Act can affect the tenant 's right of Purchase under section 32, even if any land is regranted to the holder under the Abolition Act on condition that it was not transferable.
[496A B]