judgement:
Civil Appeal No. 112 of 1975.
Appeal by Special Leave from the Judgment and Order dated 3 10 1974 of the Andhra Pradesh High Court in Criminal Appeal Nos. 57 and 325/72.
P. Rama Reddy, G. section Rao and G. N. Rao for the Appellant.
A. N. Mulla and G. Narisimhalu for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal preferred by the State of Andhra Pradesh is directed against a judgment of the Andhra Pradesh High Court by which a learned Judge of that Court exercising jurisdiction under section 429 of the Code of Criminal Procedure, 1898 set aside the order of conviction and the sentences passed on the respondents before us by the Sessions Judge, Chittoor Division.
The charge against the respondents was that at about ten on the night of September 5, 1971 Venkataramaiah Chetty and Chakala Giddappa (P.W. 1) were returning to their village Sanganapalle from Kadepalle where they had gone and when they were about a mile from Sanganapalle, respondent No. 1 armed with a bill hook and respondent No. 2 with a stout stick attacked them and beat Venkataramaiah Chetty severely causing multiple injuries as a result of which he died.
The Sessions Judge accepted the evidence of P.W. 1 and the dying declaration said to have been made by Venkataramaiah Chetty in the presence of several witnesses including P.W. 1 and convicted the respondents under section 302 read with section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life.
On appeal preferred by the accused a Division Bench of the High Court rejected the dying declaration but accepted the evidence of P.W. 1 to find that the accused caused the injuries to which Venkataramaiah Chetty succumbed; the learned Judges composing the Division Bench however differed on the nature of the offence that was committed by the accused in causing these injuries.
Madhava Reddy J. held that having regard to the nature of the injuries it was not possible to find that the accused intended to cause death and that the offence committed by the accused was culpable homicide not amounting to murder punishable under section 582 304 Part I of the Indian Penal Code.
Sriramulu J. was of the opinion that in causing the injuries the accused had the common intention to kill Venkataramaiah Chetty.
He also observed that even assuming the offence did not fall under clause "Firstly" of section 302 of the Indian Penal Code, it undoubtedly fell under clause "Thirdly" of that section and on this view reached the conclusion that the Sessions Judge was justified in convicting the accused persons under section 302 read with section 34 of the Indian Penal Code.
The case was then referred to a third Judge, Ramchandra Raju J., under section 429 of the Code of Criminal Procedure, 1898.
Raju J. found on a consideration of the evidence that "there does not appear to be any motive, much less sufficient motive, for the accused to commit the offence".
The immediate motive for the offence according to the prosecution was an incident said to have taken place on September 1, 1971, four days prior to the date of occurrence, when P.W. 5, a son of the deceased, was beaten by the accused when cattle of the deceased strayed into the field of the first respondent.
According to Raju J. what happened on September 1, was a trivial incident, P.W. 5 did not sustain any injury, he did not report the matter to anyone and even when the deceased came and intervened there was no quarrel, the accused did not try to assault the deceased nor the deceased tried to beat the accused.
Pointing out certain infirmities in the evidence of the sole eye witness P.W. 1, Raju J. found that his evidence was "doubtful and suspicious".
P.W. 7 who sought to corroborate a part of the evidence of P.W. 1, according to Raju J. did not "inspire much confidence".
Raju J. did not think it "safe to find the accused guilty by placing absolute reliance on the evidence of P.W. 1 and accordingly he acquitted both the accused.
Before us Mr. P. Rama Reddy for the State of Andhra Pradesh contends that it was not open to the third Judge to upset the concurrent finding of both the learned Judges composing the Division Bench that the accused were guilty of some offence; it is argued that as the difference between the two Judges of the Division Bench was confined to the nature of the offence only, the third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure had no power to acquit the accused.
Section 429 of the Code of Criminal Procedure, 1898 reads: "When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion." 583 In support of his contention Mr. Rama Reddy relies on the judgment of this Court in Bhagat Ram vs State of Rajasthan.(1) This was a decision by a Bench of two Judges.
In that case Bhagat Ram, an Inspector of Police, was charged with having committed offences under sections 120B, 161, 218, 347 and 389 of the Indian Penal Code and also under section 5(1)(a) read with section 5(2) of the Prevention of Corruption Act.
Another accused, Ram Swaroop, who was tried along with Bhagat Ram was charged with having committed offences under sections 120B and 165A of the Indian Penal Code.
The trial court acquitted both Bhagat Ram and Ram Swaroop of all the charges framed against them.
The appeal preferred by the State of Rajasthan against the acquittal was heard by a Division Bench composed of Tyagi and Lodha JJ.
The Division Bench confirmed the acquittal of Ram Swaroop.
The acquittal of Bhagat Ram in respect of the charges under sections 347, 218, 389 and 120B was also affirmed.
The Judges however differed on the point whether the acquittal of Bhagat Ram regarding the charges under section 161 of the Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act should be maintained; according to Tyagi J. these charges had not been proved, in the opinion of Lodha J. they had been.
In view of this difference, the learned Judges passed the following order: "The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed.
The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed.
In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third Judge.
" Jagat Narayan J., the third Judge to whom the case was referred, held that Bhagat Ram was guilty of offences under Section 161 and also sections 120B, 218 and 347 of the Indian Penal Code.
This Court held in Bhagat Ram vs State of Rajasthan (supra) that it was not permissible for the third Judge to reopen the matter and convict Bhagat Ram of offences under sections 120B, 218 and 347 of the Indian Penal Code because: "The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because acquittal or conviction of Bhagat Ram had 584 been left open because of a difference of opinion between the two Judges.
Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial Judge in respect of Bhagat Ram.
On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed.
" Clearly the decision in Bhagat Ram 's case turns on the construction put on the order of the Division Bench referring "the matter" to the third Judge that he was to decide only the question on which the two Judges had differed Bhagat Ram 's acquittal in respect of the offence under section 161 Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act was justified.
The scope of section 429 was not considered in Bhagat Ram 's case, no question was raised whether the Judges of the Division Bench could restrict the powers of the third Judge under section 429, nor the notice of the Court appears to have been drawn to three earlier decisions of this Court on the point.
In Babu and others vs State of Uttar Pradesh(1) a Bench of five Judges held: "The section [section 429] contemplates that it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit" The next case is Hethubha vs The State of Gujarat(2) which was decided by a Bench of two Judges.
In that case the Sessions Judge acquitted three accused of the charge under section 302 read with section 34 Indian Penal Code but convicted them under section 304 Part II read with section 34.
Two of them were also convicted under section 323 and the third was convicted under section 323 read with section 34.
On appeal to High Court one of the two Judges composing the Division Bench held that it was the first appellant alone who inflicted the fatal injury on the victim and found him guilty under section 302, while the second and third appellants were found guilty under section 324 read with section 34.
The other learned Judge was of the view that all the accused must be acquitted as, according to him, the evidence was not satisfactory.
The case was then placed before a third Judge under section 429 of the Code of 585 Criminal Procedure, 1898 who convicted the first appellant under section 302 of the Indian Penal Code, and the second and third appellants under section 302 read with section 34.
The conviction of the first and the second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld.
In appeal to this Court it was contended that the third Judge under section 429 of the Code of Criminal Procedure, 1898 could only deal with the differences between the two Judges and not with the whole case.
Repelling this contention it was held: "This Court in Babu and Ors.
vs State of Uttar Pradesh(1) held that it was for the third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit.
Mehta.
J. here dealt with the whole case.
Section 429 of the Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion".
Two things are noticeable; first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case." In Union of India and another vs B. N. Ananti Padmanabiah etc.,(2) which was unreported when Bhagat Ram 's case was decided, a three Judge Bench of this Court confirmed the decision in Hethubha 's case.
In this case the accused who were found guilty of offences under sections 5(2) and 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 as well as sections 467 and 471 of the Indian Penal Code by the Special Judge, Gauhati, challenged the order of conviction in the High Court of Assam and Nagaland.
On difference of opinion between the two Judges of the Division Bench of the High Court, the case was referred to a third Judge.
Before the third Judge new plea was advanced that the Magistrate at Delhi had no jurisdiction to accord sanction to an Inspector of the Delhi Special Police Establishment to investigate the case in Assam.
The third Judge held that an order of a magistrate of the local jurisdiction was necessary, that only a magistrate of the district where the crime was committed and no magistrate outside the jurisdiction was competent to make an 586 order for investigation and accordingly the learned Judge quashed the proceedings before the Special Judge.
In appeal to this Court it was contended that the third Judge could only deal with the difference between the two Judges and not with the whole case.
This contention was rejected with the observation: "This question came up for consideration in the recent unreported decision in Hethubha & Ors.
vs The State of Gujarat (supra).
This Court held that the third learned Judge could deal with the whole case.
The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court.
The other noticeable feature in section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.
" In view of these authorities which were not noticed in Bhagat Ram 's case we are unable to agree that the learned third Judge in the instant case to whom it was referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did.
On the merits of the case, we have already indicated how the learned third Judge viewed the evidence; it cannot be said that the view taken was unreasonable or perverse.
The appeal is accordingly dismissed.
N.V.K. Appeal dismissed.

summary/full:
The Sessions Judge convicting the respondents under section 302 read with section 34 of the Indian Penal Code, sentenced each of them to imprisonment for life.
On appeal, a Division Bench of the High Court found that the accused caused the injuries but the Judges composing the Division Bench differed on the nature of the offence committed by the accused.
The third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure 1898, found no motive for the accused to commit the offence and held that the evidence of the chief prosecution witness was of a doubtful nature and that it was not safe to find the accused guilty relying on that evidence.
He acquitted both the accused.
In appeal to this Court by the State, it was contended that as the difference between the two Judges of the Division Bench was confined to the nature of the offence only, the third Judge to whom the case was referred in a reference under section 429 of the Code of Criminal Procedure, had no power to acquit the accused by upsetting the concurrent finding of two Judges.
Dismissing the appeal, ^ HELD: 1.
The third Judge to whom the case was referred under section 429 did not over step the limits of his jurisdiction and it cannot be said that the view taken by him was unreasonable or perverse.
[586 D E] 2.
In Bhagat Ram 's Case, the scope of section 429 was not considered, nor any question was raised whether the Judges of the Division Bench could restrict the powers of the third Judge under section 429, nor was the notice of the Court drawn to the three earlier decisions of this Court.
[584 D] 3.
What Section 429 contemplates is that it is for the third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.
[584 E] Babu and Others vs State of Uttar Pradesh ; applied.
The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of 581 Appeal shall be laid before another Judge of the same Court and that the judgment or order shall follow the opinion of the third Judge who can or will deal with the whole case.
[585 D E] Union of India and another vs B. N. Ananti Padmanabiah etc.
Hethubha vs The State of Gujarat ; ; referred to.


judgement:
Civil Appeal No. 219 of 1970.
Appeal by Special Leave from the Judgment and Decree dated 30 4 1969 of the Rajasthan High Court in section B. Civil Regular Second Appeal No. 569/65.
section M. Jain, section K. Jain and Indira Makwana for the Appellant.
R. K. Garg, V. J. Francis and Sushil K. Jain for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
A deed of adoption is alleged to have been executed by one Mansaram on August 10, 1944, stating that he had adopted the appellant, Madan Lal.
A suit to challenge that deed was dismissed by the trial Court.
The learned District Judge, Jodhpur, confirmed the judgment of the trial Court but in second appeal No. 569 of 1965, a learned single Judge of the Rajasthan High Court set aside the judgment of the Courts below and decreed the suit.
By this appeal by special leave, the defendant questions the correctness of the High Court 's judgment dated April 30, 1969.
The principal point of controversy involved in the suit was whether Mansaram was in a fit state of mind when he executed the deed of adoption.
This, substantially, is a question of fact but we find that the trial Court and the District Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influenced by inconsequential matters.
The High Court was, therefore, justified in reappreciating the evidence and in coming to its own independent conclusion on the basis of that evidence.
596 Earlier, Mansaram had allegedly executed another deed of adoption in favour of the appellant Madan Lal but the Registrar refused to register that deed by his order Exhibit 2 dated January 29, 1940 on the ground that Mansaram, who presented the deed for registration, appeared to him to be a lunatic.
The matter was remanded by the Mahakma Khas to the Registrar with a direction that Mansaram be recalled and the question whether the deed should be registered decided afresh.
The Registrar thereupon examined Mansaram and passed an order Exhibit 3 dated July 14, 1940, stating that Mansaram, no doubt, appeared to be a little better but that, while at one time he talked like a same man, he would, on occasions, fall into a reverie and was completely lost to the world.
The Registrar noted that Mansaram was unable to understand the simplest questions put to him, that he took an unreasonably long time to answer those questions and gave wholly incorrect answers to elementary questions like whom he had adopted and whether he himself was married or unmarried.
The Registrar, therefore, reaffirmed his pre remand view and refused to register the deed.
A suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption.
The Court of Joint Kotwal (No. 2), in which the suit was filed, was, concededly, a regular Civil Court of competent jurisdiction at the relevant time.
A written statement was filed in that suit by one Shri Raj Narain, advocate, on behalf of Mansaram admitting the appellant 's claim that he was validly adopted by Mansaram.
The authority of that admission having been challenged, the learned Chief Justice of the High Court, sitting in revision, made an order Exhibit 15 dated August 16, 1941, stating that the matter did not appear to him to be "absolutely clear".
He observed that Mansaram claimed to be an M.A. in English though, in fact, he did not understand a simple sentence in English.
The learned Chief Justice, therefore, examined the matter further and made an order Exhibit 18 dated December 4, 1941, directing that an issue be framed on the question whether Mansaram was of sound mind and was capable of protecting his own interest in the suit.
After the remand, the learned Joint Kotwal recorded the statement of Mansaram on December 14, 1943.
That statement is at Exhibit 5.
Mansaram 's wit and wisdom is reflected in a part of that statement wherein he said that he was 65 years of age and that his mother was about 50 years old.
When the fundamental absurdity of this hypothesis was pointed out to him, he made a feeble attempt to correct himself by saying that his mother may be of 70 years of age.
In fact, the record of the evidence given by Mansaram before the Joint Kotwal shows that he gave, at one time, an impression 597 that his mother was alive and was living with him although, admittedly, she had died long since.
In the circumstances, the Joint Kotwal passed an order on January 4, 1944 (which was the only order to pass) that he had no hesitation in holding that Mansaram was not of sound mind and was incapable of protecting his interest in the suit.
The learned Judge formed the impression, which he recorded in the proceedings, that Mansaram was tutored to make certain statements on the questions arising in the suit and that he looked like a "frightened animal".
The deed of adoption dated August 10, 1944, which is impugned in the present suit, contains a bald assertion that Mansaram had taken the appellant Madan Lal in adoption.
But, significantly, the deed does not mention the year, the date or the place of adoption.
It does not either mention, as adoption deeds generally mention, the names of persons who were present at the time of adoption.
In fact, on the record of this case there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.
We cannot accept the submission, though strongly pressed upon us by Shri Sobhagmal Jain who appears on behalf of the appellant, that what the plaintiff had challenged in the suit was the validity of the deed of adoption and not the factum of adoption.
On a broad and careful reading of the plaint we are left in no doubt that the real drift of the plaint is that Mansaram was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son.
Relying on the evidence of Somdatt D.W. 2, Shri Raj Narain D.W. 6, a lawyer, Moolraj D.W. 9 and Dr. Umraomal, D.W. 10, Shri Sobhagmal Jain argues that Mansaram was in a fit state of mind when he executed the impugned deed.
We are unable to accept this submission.
Indeed, the halting evidence of Dr. Umraomal itself throws a cloud on the mental capacity of Mansaram and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed the deed of adoption with an understanding mind.
His mental faculties were evidently too enfeebled to enable him to enter into a transaction which, in law has a religious cum spiritual significance and which, in a worldly way, affects valuable rights to property.
The High Court has examined every facet of the evidence with great care and we are in agreement with the learned Judge that Mansaram was not in a fit state of mind when he executed the deed of adoption.
He could 598 not have, possibly, understood the nature and consequences of what he was doing.
In the result, the appeal fails and is dismissed but there will be no order as to costs.
May we add that this judgment, properly understood, will not be a charter for interference by the High Courts with findings of facts recorded by the final Court of facts.
The situation, here, was of an exceptional character where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable tribunal could rationally reach.
N.K.A. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
A deed of adoption was executed by one M on August 10, 1944 stating that he had adopted the appellant.
A suit to challenge this deed was filed contending that M was not in a fit state of mind when he executed the deed.
The suit was dismissed by the Trial Court and this order was confirmed by the District Court.
In second appeal the High Court set aside the judgments of the Courts below and decreed the suit.
Earlier M had executed another deed of adoption in favour of the appellant, but the Registrar refused to register that deed on the ground that the executant appeared to him to be a lunatic.
The matter was remanded by the Mahakma Khas to the Registrar with a direction that the executant be recalled and the question decided afresh.
The Registrar thereupon examined the executant and finding him unable to understand the simplest questions put to him, and giving wholly incorrect answers to elementary questions like whom he had adopted, reaffirmed his pre remand view and refused to register the deed.
A Suit was then brought by the appellant on September 11, 1940 for the compulsory registration of the aforesaid deed of adoption.
A written statement was filed on behalf of M admitting the appellant 's claim that he was validly adopted.
The authority of that admission having been challenged, the High Court, in revision, examined the matter further and directed that an appropriate issue has been framed on the question.
After the remand, the Joint Kotwal passed an order on January 4, 1944 holding M was not of sound mind and was incapable of protecting his interest in the suit.
The High Court agreed with the findings of the Joint Kotwal.
On appeal by special leave, and dismissing the appeal, it was, ^ HELD: (1) Apart from the bald assertion that the appellant was taken in adoption, the deed does not mention the year, the date or the place of adoption.
It does not either mention the names of persons who were present at the time of adoption.
In fact there is no evidence whatsoever to show when and where the adoption took place and even whether the necessary ceremonies were performed.
[597 C D] (2) The real drift of the plaint is that M was not in a fit state of mind at the relevant time, that no adoption could have taken place in fact and that, therefore, the deed of adoption cannot confer on the appellant the rights of an adopted son.
[597 E] 595 (3) The argument that M was in a fit state of mind when he executed the deed cannot be accepted.
Indeed the halting evidence of the doctor, one of the witnesses, throw a cloud on the mental capacity of M and renders it improbable that he could perform or authorise the performance of the act of adoption or that he could have executed it with an understanding mind.
His mental faculties were evidently too enfeebled to enable him to enter into a transaction which in law has a religious cum spiritual significance and which, in a wordly way, affects valuable rights to property.
[597 F H] (4) The trial court and the District Court wholly ignored the weight of prepondering circumstances on the record and allowed their judgments to be influenced by inconsequential matters.
The High Court was, therefore, justified in re appreciating the evidence and coming to its own independent conclusion on the basis of that evidence.
[H] (5) The situation here was of an exceptional character, where evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable Tribunal could rationally reach.
This judgment will not be a charter for interference by the High Courts with findings of facts recorded by the Final Court of facts.
[598 B C]


judgement:
ivil Appeal Nos.
782 783 of 1973.
Appeals by Special Leave from the Judgment and Order dated 18 11 1972 of the Andhra Pradesh High Court in Cases Referred Nos. 50 and 52 of 1970.
P. A. Francis, K. C. Dua and Miss A. Subhashini for the Appellant.
L. A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two appeals by Special Leave are filed against a common judgment dated November 18, 1971 delivered by the High Court of Andhra Pradesh in Case Referred Nos. 50 and 52 of 1970.
Sri Bommidala Kotiratnam (hereinafter referred to as 'the statutory agent ') is a dealer in tobacco at Guntur in the State of Andhra Pradesh.
During the previous year relevant to the assessment year 1962 63, the statutory agent purchased tobacco in India and exported it to Japan, where it was sold through M/s. Toshoku Ltd. (the assessee involved in Civil Appeal No. 782 of 1973 a Japanese Company and admittedly non resident.
Under the terms of the agreement between the statutory agent and the assessee referred to above, the latter was appointed the exclusive sales agent in Japan for selling tobacco exported by the former.
The assessee was entitled to a commission of 3% of the invoice amount.
The sale price received on the sale of tobacco in Japan was remitted wholly to the statutory agent who debited his commission account with the amount of commission payable to the Japanese company and credited the same in the account of the Japanese company in his books on December 31, 1961.
The amount was remitted to the Japanese company on 589 February 1, 1962 on which date an appropriate debit entry was made in the account of the Japanese company with the statutory agent.
The statutory agent had similarly sold some tobacco during the same accounting period through another non resident business house by name 'M/s Societe Pour Le Commerce International Des Tobacs ' (the assessee involved in Civil Appeal No. 783 of 1973) carrying on business in France.
The terms of agreement were the same as in the case of the Japanese Company referred to above, the only difference being the geographical area in which each of them had to render service as a selling agent.
In this case also the statutory agent made similar entries in his books regarding the commission payable to the assessee and ultimately made a debit entry in the account of the assessee in his books when the amount was transmitted to the assessee.
During the assessment year the question whether the commission amounts sent to the Japanese company and the French business house (hereinafter referred to collectively as 'the assessees ') were assessable in terms of section 161 of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') arose for consideration before the Income tax Officer.
The statutory agent contended that the amounts in question were not taxable in view of the clarification of the legal position by the Board Circular (XXVII I) of 53 No. 26 (II/53) dated July 17, 1953 which stated: "A foreign agent of an Indian exporter operates in his own country and no part of his income arises in India.
Usually his commission is remitted directly to him and is therefore not received by or on his behalf in India.
Such an agent is not liable to Indian Income tax.
" The Income tax Officer, however, came to the conclusion that the sums in question were taxable in view of the decision of this Court in P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax(1) and assessed them under section 143(3) read with section 163 of the Act.
The appeals preferred by the statutory agent against the orders of assessment before the Appellate Assistant Commissioner of Income tax and the Income tax Appellate Tribunal were unsuccessful.
Thereafter the following common question of law was referred to the High Court of Andhra Pradesh under section 256(1) of the Act: "Whether on the facts and in the circumstances of the case the assessment on the appellant under section 161 of the Income tax, Act, 1961 is justified?" 590 The High Court held that the assessments were not justified and answered the question against the Department.
Hence these appeals under Article 136 of the Constitution.
The relevant provisions of the Act on which reliance is placed before us are sections 5(2), 9(1)(i), 160, 161 and 163.
Section 5(2) of the Act which deals with the chargeability of the income of a person who is a non resident under the Act provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived (a) which is received or is deemed to be received in India in such year by or on behalf of such person, or (b) accrues or arises or is deemed to accrue or arise in India during such year.
Explanation 1 to section 5(2) of the Act declares that an income arising abroad can not be deemed to be received in India for the purpose of that section by reason only of the fact that it is included in a balance sheet prepared in India.
Section 9(1)(i) of the Act provides that all income accruing or arising whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India shall be deemed to accrue or arise in India.
The explanation to this clause provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India and in the case of a non resident no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export.
An agent of a non resident including a person who is treated as an agent under section 163 of the Act becomes, according to section 160(1) of the Act, the representative assessee in respect of the income of a non resident specified in sub section (1) of section 9 of the Act.
Section 161 of the Act makes a representative assessee, who is an agent of a non resident personally liable to assessment in respect of the income of the non resident.
Section 163 of the Act defines persons who may be regarded as agents of non residents for the purposes of the Act.
Sections 160, 161 and 163 of the Act are merely enabling provisions which empower the authorities at their option to make assessment on and to recover tax due under the Act from the representative assessee.
It is not disputed in these cases that if the incomes in question of the assessees are taxable, the statutory agent is liable to pay the tax.
The real question which falls for determination is whether the said incomes are taxable.
The facts found in these appeals are that the statutory agent exported his goods to Japan and 591 France where they were sold through the assessees.
The entire sale price was received in India by the statutory agent who made credit entries in his account books regarding the commission amounts payable to the assessees and remitted the commission amounts to them subsequently.
One extra feature in the case of the Japanese company is that it had been appointed as an exclusive agent for Japan.
It is not disputed that the assessees rendered service as selling agents to the statutory agent outside the taxable territories.
In order to establish its case, the Revenue has strongly relied on the decision of this Court in the case of P. V. Raghava Reddy (supra).
A perusal of that decision shows that the said case is distinguishable on facts.
In that case the assessee had exported in the years 1948 49 and 1949 50 certain quantity of mica to Japan.
Mica was not exportable directly to Japanese buyers during those years as Japan was under military occupation but to a State organisation called Boeki Cho (Board of Trade).
To negotiate for order and to handle its other affairs in Japan in connection therewith the assessee engaged San Ei Trading Co. Ltd., Tokyo as its agent.
The Japanese Company was admittedly a 'non resident ' company.
Under the agreements the assessee under took to pay certain percentage of gross sale proceeds as commission to the Japanese Company.
With regard to the mode of payment of commission, the agreements provided a term which read thus: "In view of the difficulties in this country it is requested that the first party credits all these amounts to the account of the second party with them without remitting the same until definate instructions are received by the first party.
" The first party to the agreement was the assessee and the second party was the Japanese Company.
During the two accounting years a total amount of Rs. 13,319 12 4 was paid to the Japanese Company either directly or through others to whom the assessee was instructed by the Japanese Company to pay the amount.
The Court rejected the contention of the assessee that the Japanese Company was not in receipt of the amount in the taxable territories and the amount was not income within the meaning of section 4(1)(a) of the Indian income tax Act, 1922 with the following observations: "This leaves over the question which was earnestly argued, namely, whether the amounts in the two accounting years can be said to be received by the Japanese Company in the taxable territories.
The argument is that the money was not actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt cl.
(a) cannot apply.
We need not consider the fiction, 592 for it is not necessary to go into the fiction at all.
The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company.
Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee.
The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal.
The character of the money changed from a debt to a deposit in such the same way as if it was credited in a Bank to the account of the Company.
Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of section 4(1)(a).
Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way.
In our opinion, the High Court was right in answering the question against the assessee." The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on that basis.
In the cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddi 's case (supra).
It cannot be said that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non residents as the amounts so credited in their favour were not at their disposal or control.
It is not possible to hold that the non resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non resident assessees during the relevant year.
This takes us to section 9 of the Act.
It is urged that the commission amounts 593 should be treated as incomes deemed to have accrued or arisen in India as they, according to the Department, had either accrued or arisen through and from the business connection in India that existed between the non resident assessees and the statutory agent.
This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
(See Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr.(1) and M/s. Carborandum Co. vs C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income tax Act, 1922, which corresponds to section 9(1)(i) of the Act.) In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
The High Court was, therefore, right in answering the question against the Department.
For the foregoing reasons, the appeals fail and are hereby dismissed with costs.
(Hearing fee one set).
V.D.K. Appeals dismissed.

summary/full:
Dismissing the Revenue appeal by special leave, the Court ^ HELD: (1) The credit entries made in the books of a statutory agent do not by themselves amount to receipt by assessees who are non residents as long as the amounts so credited in their favour are not at their disposal or control.
[592 F] The non resident assessees in this case neither received nor could be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
[592 F G] P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax [1962] Supp. 2 S.C.R. 596, distinguished.
(2) Under clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Income Tax Act.
in the case of the business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
[593 B D] 588 In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
[593 E G] Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr. and M/s. Carborandum Co. vs C.I.T. Madras ; , referred to.


judgement:
Civil Appeal No. 3115 of 1979.
Appeal by Special Leave from the Judgment and Order, dated 6 8 1979 of the Delhi High Court in Civil Writ No. 395 of 1979.
K. K. Venugopal, H. K. Puri and section C. Dhanda for the Appellant.
A. K. Gupta for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Jawharlal Nehru University, considered to be one of the prestigious academic institutions of the country, is the appellant in this appeal by special leave of this Court under Article 136 of the Constitution.
Named after the great liberal, humanist and democrat of the century, the University was established by Act of Parliament to "embody a unique synthesis of Humanities, the Sciences and Technology" and to "endeavour to promote the study of principles for which Jawaharlal Nehru worked during his lifetime, namely, national integration, social justice, secularism, democratic way of life, international understanding and scientific approach to the problems of society". 'The Court ' is the supreme authority of the University and it has the power to review the acts of the Executive Council and the Academic Council.
The Vice Chancellor is the Principal Executive and Academic Officer of the University.
The Executive Council is the executive body of the University, in charge of the general management and administration of the University while the Academic Council is the academic body of the University, responsible for the maintenance of standards of instruction, education and examination within the University.
The Executive Council is empowered to make 'Statutes ' in the manner prescribed by the Jawaharlal Nehru University Act and to make 'Ordinances ' in the manner prescribed by the Statutes.
Ordinances have been duly made and Ordinance 13 deals with the award of M.A., B.A., (Honours) and B.A. (Pass) degrees.
The University offers Integrated Five Year Programmes of studies leading to the award of M.A. Degree in several Disciplines and Languages.
Russian is one of the languages in which such a programme of studies is offered.
The programme is spread over ten semesters, 620 in five academic years.
In the first two semesters, courses described as 'C ' level courses are given, in the next four semesters 'B ' level courses are given and in the last four semesters 'A ' level courses are given.
Each 'C ' level course carries two credits, each 'B ' level course three credits and each 'A ' level course four credits.
Paragraph 7.3 of Ordinance 13 prescribes a minimum of 144 credits in the case of Social Sciences and 176 credits in the case of languages for the Master of Arts Degree, out of which there have to be a minimum of 20 credits from 'C ' level courses, 60 from 'B ' level courses and 64 from 'A ' level courses in the case of Social Sciences and a minimum of 28 from 'C ' level courses, 84 from 'B ' level courses and 64 from 'A ' level courses, in the case of languages.
It is further prescribed that a minimum of 50% of credits but not more than 75% should be in the discipline in which the student is formally registered for the Master 's degree.
It may be mentioned here that the courses in the discipline in which the student is formally registered are known as the 'core courses ' while the other courses for which also the student has to prescribe are known as 'Tool courses ' and 'optional courses '.
Paragraph 7.5 prescribes that the courses on the basis of which a student earns his 'C ' level credits shall be atleast from four disciplines.
Paragraph 7.6 provides that a student shall be required to earn atleast a minimum of ten credits from courses in Tools, Techniques and Methodology.
Paragraph 8 of Ordinance 13 prescribes the method of evaluation.
Sessional work is to carry the same weight as the semester examination.
In each course a student is graded on a ten point scale and the final grade point is obtained by applying the formula Fg = #n Cigi/#n Ci Where F is the final grade point of the student C is the credit of the ith course, G is the grade point secured by the student in the ith course and n is the total number of courses for which the student has prescribed.
A student who fails in a course is required to repeat the course or clear another course in lieu of the course in which he has failed.
Paragraph 9 of the Ordinance prescribes the minimum standard of grade point requirements.
Every student is required to maintain a minimum cumulative grade point average of 2.0 during the first two semesters.
At the end of the sixth semester the cumulative grade point average has to be 4.0 if he is to further continue in the programme of study.
If he is to be awarded the Master of Arts degree he must have a minimum cumulative grade point average of 4.0.
Paragraph 11 of the 621 Ordinance is important for the purposes of this case and it may be extracted here.
As it stood at the relevant time, it was as follows: "The Board of the School, on the recommendation of the Centre, may remove the name of a student from the course on the basis of unsatisfactory academic performance".
The respondent B. section Narwal was admitted, in 1974, to the five year integrated programme of study leading to Master of Arts Degree in Russian Language at the Centre of Russian Studies in the Jawaharlal Nehru University.
As he was seeking a degree in Russian Language, the 'core courses ' had necessarily to be those concerned with Russian language, literature and translation.
In the first two semesters, he failed to take the sessional tests in any of the 'core courses ' in Russian and consequently he was not allowed to sit for the end semester examinations.
He thus failed to clear any of the 'core courses ' in the first two semesters.
He, however, appeared for the examinations in the 'tool ' and the 'optional courses ' in the first two semesters and prescribed for five credits in two courses, in the first semester and eight credits in three courses, in the second semester.
In the third semester the respondent requested permission of the University to repeat the courses of the first semester so as to enable him to pass them.
As a special case, he was permitted to do so, but he failed in all the five courses in respect of which he sought and obtained permission to so repeat.
The respondent, however, passed (securing B+) in an optional course for which he prescribed in the third semester.
At the end of the third semester the net result was that he had not cleared a single 'core course '.
The Centre of Russian Studies was dissatisfied with the performance of the respondent and some other students and at a meeting held on January 20, 1976, the Centre decided to recommend to the Board of Studies, School of Languages, that seven students including the respondent should be struck off the rolls of the University for unsatisfactory performance.
The recommendation of the Centre of Russian Studies was accepted by the authorities of the University and by an office order, dated January 31, 1976, the respondent and others were removed from the rolls of the University for unsatisfactory performance as recommended by the Centre.
The respondent appeared to accept the decision of the University and kept quiet for a period of two years and six months, but in August, 1978, he filed a Writ Petition in the Delhi High Court challenging the order removing him from the rolls of the University 622 on the ground that the order had been made in violation of the principles of natural justice.
The Writ Petition was opposed by the University but when the Writ Petition came for hearing on November 24, 1978, on a query by the Court whether it was feasible to readmit the respondent, the University agreed to reconsider the question sympathetically.
Thereupon, the Writ Petition was dismissed.
Pursuant to the assurance given before the High Court the Centre of Russian Studies considered the question once again and found itself unable to admit the respondent in the middle of the academic year.
The respondent was, however, informed that his case could be considered in the monsoon semester commencing from July 1979, that is, at the beginning of the academic year.
The respondent was advised to send a fresh application for admission.
The respondent being dissatisfied with the attitude of the University filed a fresh Writ Petition in the High Court, once again, challenging the order removing him from the rolls of the University.
The High Court by their judgment, dated August 6, 1979 allowed the Writ Petition firstly on the ground that the respondent was given no opportunity to show cause before action was taken against him and secondly on the ground that the University did not apply its mind to the question whether the petitioner 's performance was unsatisfactory.
The High Court quashed the order removing the respondent from the rolls of the University and gave the following directions to the University: "(1) That the petitioner B. section Narwal should be admitted in the 7th semester which is the monsoon semester of 1979; (2) that the petitioner should be permitted to complete the ten semesters by the end of the academic year 1981 so as to qualify him to get his M.A. Degree; (3) that the petitioner should be permitted to secure the required 180 credits by the end of the academic year 1981 and to make up the deficiency in the credits he has secured so far by taking up the contact hours, sessional tests and semester examination of the appropriate semester before the completion of his 10th semester; (4) that the University shall permit the petitioner to join the appropriate groups for taking up the required courses and make proper arrangements of sessional tests and semester examinations at reasonable intervals so as not to crowd too many academic requirements at one time".
The first question for our consideration is whether the respondent was entitled to an opportunity of being heard before action 623 was taken removing him from the rolls of the University.
What should be mentioned right at the outset is that this is not a case of expulsion of a student pursuant to a claim, by the authorities of a University to discipline the student at their discretion and the right of the student to freedom and justice.
The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts perhaps, are least qualified to judge.
Nor can there be any question of any opportunity to be heard being given.
One does not hear of a claim to be heard when a candidate fails to qualify at an aptitude or intelligence test, written or oral.
When duly qualified and competent academic authorities examine and assess the work of a student over a period of time and declare his work to be unsatisfactory we are unable to see how any question of a right to be heard can arise.
The duty of an academic body in such a case is 'to form an unbiased assessment of the student 's standard of work based on the entirety of his record and potential(1).
That is their function.
The very nature of the function of academic adjudication (if the use of the word adjudication is permissible in the context) appears to us to negative any right to an opportunity to be heard.
If the assessment by the academic body permitted the consideration of 'non academic ' circumstances also, a right to be heard may be implied.
But if the assessment is confined to academic performance, a right to be heard may not be so implied.
Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a student 's academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not given an opportunity of being heard.
Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as 'hearing ' an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of 'audi alteram partem '.
Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicial intervention.
The learned Counsel for the respondent relied on Regine vs Aston University Senate(2) to contend that the examining body of the University was bound to give an opportunity to a student before requiring him to withdraw from the University consequent on his 624 failure in the examination.
Admittedly, in that case, the examiners took into consideration a "wide range of extraneous factors some of which their very nature, for example, personal and family problems might only have been known to the students themselves".
Therefore.
Donaldson J., observed that in common fairness the students should have been given an opportunity.
Even so, Lord Parker C. J., did not appear to be convinced about the correctness of Donaldson J 's view and in Herring vs Templeman & Ors.
(supra), the Court of Appeal expressed the view that Donaldson J 's opinion required reconsideration on some suitable future occasion.
From the earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters.
If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring.
The complaint of the respondent, however, was that he was unable to clear the 'core courses ' in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds.
It appears that in the very first semester the respondent joined the University late and missed several classes.
The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses.
The therefore, had to attend other classes in Russian language where Russian language was taught not as a 'core subject ' but as a 'tool or optional subject '.
According, to the respondent there was none to teach Russian language to his group between October 6. 1974 and December 6, 1974.
Again, in the second semester, though there were Russian classes from 10th February to 30th March, 1975, there were no arrangements to teach Russian language to his group after 30th March.
The High Court appeared to attach great importance to the failure of the University to expressly deny the respondent 's allegation that there were no teaching facilities between October 6 and December 6.
1974 and again between 10th February and 30th March, 1975.
True the University did not in express terms deny the allegations.
But the University did mention the following facts in their counter affidavit.
In paragraph 5 it was said 625 "He joined the first semester on 22nd of August 1974 although it started from 9th August 1974.
So much so he was to be grouped together with students who had offered Russian as a non core subject and for whom the Russian classes happened to be starting from 1st September.
Again, from 8th October 1975 to 20th December 1975, he was not regular in attendance.
How could the respondent University afford a special curriculum for the sake of a particular student who does not avail of the regular course of teaching provided by the University to a class of students? It was no fault of the University if the petitioner could not attend the classes when they were conducted, and the petitioner should be blamed for his irregular attendance".
Again in paragraph 9 it was said: "In reply to paragraph 9, I say that the petitioner did not join the course on 9th August 1974 when the classes for Russian as a core subject commenced.
When the Petitioner came on 22nd August 1974 to join the course, the students who had offered Russian as a core subject and started their classes on 9th August, had made substantial progress.
The Petitioner, being a beginner in Russian language, could not be accommodated in any of those groups.
He had, therefore, to be grouped together with students who had offered Russian classes happened to be starting from September 1.
" These statements show that the University did run the necessary classes for the 'core courses ' but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for 'optional ' courses instead of classes for core courses.
The University naturally could not run a special programme for an individual student.
These statements went unnoticed by the High Court.
We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation.
We have, therefore, no option but to allow the appeal and dismiss the Writ Petition filed by the Respondent.
We may add that we would not, in any case, have confirmed the directions given by the High Court, as they appear to involve a virtual re writing of that ordinances of the University.
While allowing the appeal, 626 we leave it to the University, to consider if the career of the respondent cannot be salvaged by admitting him into some appropriate semester in accordance with the ordinances, if he chooses to submit an application for admission.
There will be no order regarding costs.
Civil Miscellaneous Petition No. 1926 of 1980 is dismissed.

summary/full:
The appellant University offered integrated 5 years programme of study leading to the award of M.A. degree in several disciplines and languages.
The programme was spread over ten semesters in 5 academic years.
The courses in the discipline in which a student was formally registered were known as the 'core courses ' while the other courses for which also the student had to prescribe were known as 'tool courses ' and 'optional courses '.
The respondent was a student of the five year integrated programme of study in the Master of Arts degree in Russian Language at the appellant University.
In the first two semesters, he failed to take the sessional test in any of the 'core courses ' in Russian and consequently he was not allowed to sit for the end semester examinations.
He, however, appeared for the examinations in the 'tool courses ' and the 'optional courses ' in the first two semesters.
In the third semester the respondent requested permission of the University to repeat the courses of the first semester so as to enable him to pass them.
The University permitted him to do so but he failed in all the five courses in which he was permitted to do so.
Dissatisfied with his performance the Centre of Russian Studies recommended to the Board of Studies that the respondent 's name be struck off the rolls and his name was accordingly removed from the rolls.
The High Court, allowed the respondent 's writ petition on the ground that: (1) no opportunity to show cause was given to him before his name was struck off the rolls, and (2) that the University did not apply its mind to the question whether the respondent 's performance was unsatisfactory.
In the appeal to this Court on the question: whether the respondent was entitled to an opportunity of being heard, before removing him from the rolls of the University.
Allowing the appeal: ^ HELD: 1.
In the absence of allegations of bias or mala fides, the declaration by an academic body that a student 's academic performance is unsatisfactory is not liable to be questioned in a Court on the ground that the student was not given an opportunity of being heard.
[623 E F] This is not a case of expulsion pursuant to a claim by the authorities of a University to discipline the student at their discretion and the right of the 619 student to freedom and justice.
The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts are least qualified to judge.
[623 A B] Herring vs Templemen & Ors. & 584; Regina vs Aston University Senata referred to.


judgement:
Civil Appeal No. 224 of 1979.
Appeal by Special Leave from the Judgment and Order dated 6 12 1978 of the Delhi High Court in C.W. No. 1361/78.
P. Parameswara Rao and R. Nagarathnam for the Appellant.
K. Parasaran, Sol.
Genl., V. Gauri Shanker, K.L. Hathi and Mrs. Hemantika Wahi for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a Division Bench judgment dated December 6, 1978 of the High Court of Delhi and arises under the following circumstances.
The appellant was inducted as a tenant by one Mithanlal who was the owner of the premises in question and the rent payable at the time of the tenancy was Rs 55 per month.
The premises were, however, purchased by the Life Insurance Corporation of India (for short, LIC) at a court auction on July 19, 1958 and the appellant in view of the same attorned to the new landlord, namely, the LIC.
The Delhi Rent Control Act of 1958 (hereinafter referred to as the 'Rent Act ') came into force on February 9, 1959 and on July 24, 1969 the new landlord gave a notice under section 106 of the Transfer of Property Act to the appellant determining the tenancy.
This notice, however, was subsequently withdrawn and after some correspondence with the appellant the rent was increased by the LIC from Rs. 55 to Rs. 125 per month.
Sometime towards the end of July 1966, the LIC gave a fresh notice under section 106 of the Transfer of Property Act purporting to determine the tenancy.
Thereafter, there were some parleys between the LIC and the appellant and ultimately the LIC agreed to accept the enhanced rent of Rs. 300 per month from the appellant with effect from December 1, 1976.
On April 23, 1977 the LIC gave another notice under section 106 superseding the previous notice and directing the appellant to vacate the premises on or before May 31, 1977.
As the appellant did not vacate the premises, the LIC filed a complaint with respondent No. 2, the Estate Officer, LIC under the provisions of the (hereinafter referred to as the 'Premises Act ').
Thereafter, the second respondent issued a notice to the appellant under section 4(1) of the Premises Act to show cause why the appellant be not evicted.
The appellant appeared before the Estate Officer and raised certain preliminary objections which having been decided against him, the appellant filed a writ petition in the Delhi High Court against the order of the Estate Officer and reiterated the preliminary objections taken by him before 501 the Estate Officer.
After considering the preliminary objections which mainly related to the question of jurisdiction of the Estate officer to proceed under the Premises Act, the High Court overruled all the objections and dismissed the writ petition in limine, though by a reasoned order.
Hence, this appeal to the Supreme Court.
Before dealing with the contention raised by counsel for the respondent we might mention that the proceedings before the Estate officer under the Premises Act have only been stayed and not yet decided on merits because the appellant wanted the Estate officer to decide the question of jurisdiction as a preliminary issue.
In support of the appeal, Mr. Parmeshwar Rao submitted three main contentions before us.
In the first place, he submitted that the provisions of the Premises Act would have no application to the present premises because the appellant could not be described as an unauthorised occupant as he had entered into possession of the premises long before they were purchased by the LIC.
It was argued that the condition precedent for the assumption of jurisdiction by the Estate officer was that the appellant must be an unauthorised occupant, and if the possession of the appellant was lawful, though the property changed hands subsequently, the appellant could not be dubbed as an unauthorised occupant.
In this connection, reliance was placed on a decision of this Court in Rajkumar Devindera Singh & Anr.
vs State of Punjab & Ors We have gone through the decision cited before us and we find that the provisions of the Punjab Act, which was the subject matter of interpretation by this Court in that case, were substantially and materially different from section 2(2)(g) of the Premises Act which defines unauthorised occupation.
Mr. Rao, however, strongly relied on the following observations made by this Court in the case supra: "If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises.
Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh.
The property was not public premises before it was sold to the Government.
" If these observations of this Court are torn from the context they may presumably support the argument of the appellant but we have to read these observations in the light of the specific provisions of the Punjab, Public Premises and Land (Eviction and Rent Recovery) Act, 502 1959 (hereinafter referred to as the 'Punjab Act ').
Relevant portion of section 3 of that Act may be extracted thus: "For purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public premises: (a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant." [Emphasis Ours] It would be seen that before a person could be said to be in an unauthorised occupation, the Act required the following conditions: (1) that the occupant had entered into possession before or after the commencement of the Act.
(2) that he had entered into such possession otherwise than under and in pursuance of any allotment, lease or grant.
That Act, therefore, lays special stress on only one point, namely, the entry into possession.
Thus, if the entry into possession had taken place prior to the passing of the Act, then obviously the occupant concerned would not be an unauthorised occupant.
What made the occupancy unauthorised was his entry into possession at a particular point of time.
It was in construing these provisions that this Court held that if the appellants in that case were in possession before the sale of the property to the Government, their entry into possession could not be said to be unauthorised.
These observations, however, would have absolutely no application to the instant case where section 2(2)(g) defines unauthorised occupation thus: "unauthorised occupation ', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." To begin with, it is manifest that section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all.
The section merely requires occupation of any public premises.
Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises.
What is germane for the purpose of interpretation of section 2(2)(g) is whether or not the person concerned was in occupation of the public premises when the 503 Premises Act was passed.
In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force and in fact accepted the LIC as his landlord.
In these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of 'unauthorised occupation ' as contemplated by section 2(2)(g).
There is yet another aspect of the matter which distinguishes the present case from the language employed in the Punjab Act.
Section 2(2)(g) is an inclusive definition and consists of two separate limbs (1) where a person is in occupation in relation to any public premises without authority for such occupation, and (2) even if the possession or occupation of the tenant continues after the lease is determined.
In the instant case, the lease was doubtless determined by the landlord by a notice under section 106 of the Transfer of Property Act whose validity for purposes of deciding the question of law has not been questioned by the learned counsel for the appellant.
Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined.
The second limb mentioned in section 2(2)(g) is conspicuously absent from the provisions of the Punjab Act.
For these reasons, we overrule the first contention raised by the counsel for the appellant and we hold, agreeing with the High Court, that the appellant was undoubtedly in unauthorised occupation of the premises.
The second contention put forward by Mr. Rao was that in view of the provisions of the Rent Act which override the provisions of the Premises Act, section 14 of the Rent Act completely bars recovery of possession of any premises except in accordance with the procedure laid down in the Rent Act.
It was contended by Mr. Rao that although the Premises Act was passed in 1971, it has been given retrospective effect from 16th September 1958 and, therefore, should be construed as a law having been passed in 1958 and as the Rent Act was passed in 1959 it overrides the Premises Act.
We are, however, unable to agree with this argument.
In the first place, the Premises Act was passed in 1971 and came into force on the 23rd of August 1971, that is to say, long after the Rent Act was passed in 1959.
The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is to say August 23, 1971.
In these circumstances, therefore, the Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act.
It was further contended by Mr. Rao that the Rent Act being a special law as compared to the Premises Act, it will override the Premises Act without going into the question as to which of the two Acts were prior in point of time.
In support of his contention the 504 counsel relied on a decision of this Court in Sarwan Singh & Anr.
vs Kasturi Lal where this Court observed as follows: "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise.
Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration." (emphasis supplied) It is true that in both the Acts there is a non obstante clause but the question to be determined is whether the non obstante clauses operate in the same field or have two different spheres though there may be some amount of overlapping.
The observations cited above clearly lay down that in such cases the conflict should be resolved by reference to the object and purpose of the laws in consideration.
In Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd.,(2) this Court made the following observations: "It is therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.
" In the light of the principles laid down in the aforesaid cases we would test the position in the present case.
So far as the Premises Act is concerned it operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government.
Thus, the Premises Act has a very limited application.
Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves.
That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Pvt. Ltd. & Anr.
vs State of Punjab & Anr.
such authorities were held to form a class and, therefore, immune from challenge on article 14 of the Constitution.
Similarly, the summary procedure prescribed by the Premises Act is also not violative of Art, 14 as held by this Court in 505 Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors.(1).
Thus, it would appear that both the scope and the object of the Premises Act is quite different from that of the Rent Act.
The Rent Act is of much wider application than the Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in section 2 of the Premises Act.
The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation nor Government or Corporate Bodies.
It would be seen that even under the Rent Act, by virtue of an amendment a special category has been carved out under section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity.
Thus, section 25B itself becomes a special law within the Rent Act.
On a parity of reasoning, therefore, there can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a Special Act and overrides the provisions of the Rent Act.
It was also suggested by Mr. Rao that in view of section 3(a) of the Rent Act, which is extracted below, it would appear that the intention of the legislature in passing the Rent Act was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate Bodies or Corporations, then section 3(a) should have been differently worded: "3.
Nothing in this Act shall apply: (a) to any premises belonging to the Government.
" This in our opinion, does not advance the case of the appellant any further because once the Premises Act becomes a special Act dealing with premises belonging to Central Government, Corporations and other statutory Bodies, the Rent Act stands superseded.
We have to consider the provisions of the two Acts, they having been passed by the same legislature, viz., Parliament, and the rule of harmonious construction would have to apply in such cases.
For these reasons, we overrule the second preliminary objection taken by the appellant.
Lastly, it was argued that apart from the Rent Act, section 19 of the (hereinafter referred to as the 'Slums Act '), which also would have to be construed as a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the 506 Rent Act and the Premises Act.
This argument appears to us to be without substance.
The Slums Act was passed as far back as 1956 and the Premises Act was subsequent to the Slums Act and would, therefore, prevail over the Slums Act.
Relevant portion of section 19 of the Slums Act may be extracted thus: "19.
(1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority, (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964 any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area;" A perusal of section 19 of the Slums Act clearly shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act.
The Premises Act being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act on the same lines of reasoning as we have indicated in the case of the Rent Act.
For these reasons, therefore, the last contention put forward by the counsel for the appellant is also overruled.
The High Court had also overruled all these preliminary objections more or less on the same reasons as given by us though not in such details.
It is, however, not necessary for us to remand the matter to the trial court for decision of the case on merits because the Solicitor General having agreed to give two years ' time to the appellant to vacate the premises on filing the usual undertaking, the appellant does not want to contest the proceedings before the Estate officer, LIC and has undertaken to give vacant and peaceful possession to the respondent on August 1, 1982.
Meanwhile, the appellant shall keep on paying the usual rent.
The appellant shall also file an undertaking accompanied by an affidavit to the effect that it shall hand over vacant and peaceful possession to the respondent on or before August 1, 1982 and shall not induct any tenant on the premises.
The undertaking shall be filed within three weeks from today.
The subject matter of the appeal is accordingly disposed of finally.
N.V.K. Appeal dismissed.

summary/full:
The L.I.C. (respondent No. 1) purchased a building at a court auction.
The appellant was inducted as a tenant by the prior owner of the premises.
The L.l.
C. gave notice under section 106 of the Transfer of Property Act directing the appellant to vacate the premises.
As the appellant did not vacate the premises the L.I.C. filed a complaint with the Estate Officer, L.I.C. (respondent No. 2) under the provisions of the Public Premises (Eviction of Unauthorised occupants) Act 1971, who issued a notice to the appellant under section 4(1) of the Act to show cause why the appellant be not evicted.
Before the Estate Officer the appellant raised preliminary objections which related to th equestion of jurisdiction of the Estate Officer to proceed under the Premises Act.
The Estate Officer decided the question against him and the High Court confirmed the order.
In appeal to this Court on behalf of the appellant it was contended: (1) The appellant could not be described as an 'unauthorised occupant ' within the meaning of section 2(2)(g) of the 1971 Act because he had entered into possession of the premises long before they were purchased by the L.I.C.; (2)(i).
The Premises Act of 1971 which had been given retrospective effect from the 16th September, 1958 should be construed as a law having been passed in 1958 and so construed the Rent Act (The Delhi Rent Control Act) passed in 1959 over rides the Premises Act; (ii) The Rent Act which is a special law would override the Premises Act and (iii) The intention of the Legislature in passing the Rent Act as seen from section 3(a) was merely to exclude from its operation only premises belonging to the Government and if the intention was to exclude other premises belonging to corporate bodies or Corporations then section 3(a) would have been differently worded.
Apart from the Rent Act section, Section 19 of the which is also a Special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the Rent Act and the Premises Act.
499 Dismissing the Appeal: ^ HELD: (1)(a) The appellant was undoubtedly in unauthorised occupation of the premises.
[503 D] (b) Section 2(2)(g) does not use the word 'possession ' or the words 'entry into possession ' at any point of time at all.
The section merely requires occupation of any public premises.
Entry into possession connotes one single terminus, viz., the point of time when a person enters into possession or occupies the property whereas occupation is a continuous process which starts right from the point of time when the person enters into possession or occupies the premises and continues until he leaves the premises.
[502 G H] In the instant case the lease was determined by the landlord by a notice under section 106 of the Transfer of Property Act.
Therefore, there can be no doubt that the appellant was in unauthorised occupation of the premises once the lease was determined.
[503 Cl Raj Kumar Devendra Singh & Anr.
vs State of Punjab and Ors. ; distinguished.
2(i) The Premises Act was passed in 1971 and came into force on 23rd August, 1971 that is long after the Rent Act was passed in 1959.
The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is August 23, 1971.
The Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act.
[503 G] (ii) The scope and the object of the Premises Act is quite different from that of the Rent Act.
The Rent Act is of much wider application, inasmuch as it applies to all private premises, which do not fall within the limited exceptions indicated in section 2 of the Premises Act.
The object of the Rent Act is to afford special protection to all the tenants or private landlords who are neither a Corporation nor Government or Corporate Bodies.
Even under the Rent Act, a special category has been carved out by section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity.
Section 25B, therefore, becomes a special law within the Rent Act.
Therefore, the Premises Act as compared to the Rent Act, is a Special Act and overrides the provisions of the Rent Act.
[505 B C] Sarwan Singh & Anr.
vs Kasturi Lal ; & Shri Ram Narain vs The Simla Banking & Industrial Co. Ltd. ; referred to.
(iii) once the Premises Act becomes a Special Act dealing with the premises belonging to the Central Government, Corporations and other statutory bodies, the Rent Act stands superseded.
[505 F] 3.
Section 19 of the Slums Act shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in section 2 of the Premises Act The Premises Act, being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act.
[506 D]