judgement:
Appeals Nos. 1179 1782 of 1970.
From the Judgment & Order dated the 7th March, 1969 of the Andhra Pradesh High Court in Writ Petition Nos.
1042 1045 of 1964.
section C. Manchanda, B. B. Ahuja and R. N. Sachthey, for the Appellant (In all the Appeals).
section V. Gupte, Anwarulla Pasha, J. B. Dadachanji, A. Subba Rao and Anjali K. Varma, for the Respondents (In all the Appeals).
M. N. Phadke, A. V. Rangam, Gopal Nair and A. Subhashini, for the Interveners (In all the Appeals).
The Judgment of the Court was delivered by GUPTA, J.
These are four appeals by certificate from a common Judgment of the High Court of Andhra Pradesh at Hyderabad by which the High Court directed the appellant, Income Tax Officer, Income Tax cum Wealth Tax Circle 11, Hyderabad to refrain from proceeding against the respondent under sec.
147 (a) of the Income Tax Act, 1961.
The appellant had served on the respondent, Nawab Sahib Mir Osman Alikhan Bahadur, H. E. H., the Nizam of Hyderabad, notices under sec.
148 of the income Tax Act, 1961 stating that he had reasons to believe that income of the respondent chargeable to tax for the assessment years 1955 56, 1956 57, 1957 58 and 1958 59 had escaped assessment within the meaning of sec.
147 of the Act and proposing to reassess the income for the said assessment years.
The respondent challenged the validity of the proceedings under sec.
147 sought to be initiated by filing four writ petitions in the High Court of Andhra Pradesh at Hyderabad.
The High Court by the impugned Judgment allowed all the four petitions and prevented the Income Tax Officer from proceeding further under sec.
147 of the Income Tax Act, 1961.
In these appeals the appellant questions the correctness of the High Court 's decision.
The material facts are briefly these.
Assessments for the aforesaid four years were completed respectively on March 18, 1958, March 19, 1958, July 20, 1958 and March 28, 1961 under the income Tax Act of 1922.
After the returns in respect of the said years were filed, the Income Tax Officer called upon the respondent to state his relationship with four ladies by putting three queries to him.
The queries were as follows: "(a) The rites and ceremonies attendant on legal marriages, according to Muslim law and how they were observed in the case of each of the four ladies viz., Dulhan Pasha Begum Saheba, Mazharunnisa Begumsaheba, Laila Begum Saheba and jani Begum Saheba.
(b) What legal status is accorded to the children of Mazharunnisa Begum Saheb, Laila Begum Saheba and Jani Begum Saheba, vis a vis, the children of the late Dulhan Pasha Be gum Saheba? 466 (c) Any other factors from the point of view of the religion which distinguished the status of late Dulhan Pasha Begum Saheba from the other three ladies.
" It appears that on May 1, 1950, August 6, 1950 and December 29, 1950 the respondent had executed three trust deeds, described respectively as Family Trust, Miscellaneous Trust and Family Pocket Money Trust, for the benefit of Mazharunnissa Begum, Laila Begum, Jani Begum and the minor children of the last two.
in the aforesaid trust deeds the three ladies were described as wives of the respondent who was also referred to as the father of their minor children.
In one of these documents, viz., the family Pocket Money Trust Deed, the description of Laila Begum and Jani Begum as wives was preceded by the expression "ladies of position".
Under sec.
16 (3) of the income Tax Act of 1922, in computing the total income of any individual for the purposes of assessment, the income of the wife or minor child of the assessee arising from assets transferred by the husband to the wife or the minor child otherwise than for adequate consideration was to be included.
There is no dispute that these trust deeds were before the Income Tax Officer before he completed the assessments for the said four years.
On September 9, 1957 Shri C. B. Taraporewala, Financial Adviser and General Power of Attorney Agent of the respondent, filed a statement before the Income Tax Officer in reply to these queries.
In this reply it was stated that the late Dulhan Pasha Begum Saheba was the only legally wedded wife of the respondent, that with the other three ladies the respondent had not gone through the essential formalities of a valid marriage under Mohanunedan Law, that these three ladies who occupied high social position and who were received in his palace were "ladies of position" and in view of the special favours bestowed upon them they were referred to as wives in the said three trust deeds though in the strict legal sense the description was incorrect and the children of these ladies were not tile legitimate children of the respondent and had no legal status as such.
This explanation apparently satisfied the income Tax officer because in assessing the total income of the respondent for the said four years he did not include the income of these three ladies and their minor children arising out of the trust properties.
It is also admitted that the beneficiaries of the trusts were separately assessed on the income derived from the trusts along with their individual income.
On March 13, 1964 the notices under sec.
148 of the Income Tax Act, 1961 were issued seeking to reopen the assessments under sec.
147 of the Act.
After some correspondence with the income Tax Officer, the authorized representatives of the respondent, M/s. section G. Dastgir and Company, Chartered Accountants, filed supplemental returns for the aforesaid four years "without prejudice" to the respondent 's right to question the valid it of the notices.
The supplemental returns merely affirmed the original returns filed by the respondent.
By his letter dated April 15, 1964 addressed to M/s. Dastgir and Company, the Income Tax officer stated the reasons for reopening the 467 assessments under sec.
147(a).
Referring to two subsequent trusts named Fern Hill and Race View created by the respondent on March 21,1957 and December 5, 1957 respectively, it was stated that the material facts relating to these two documents were not brought to the notice of the Department in the course of the original assessment pro ceedings.
Fern Hill Trust was created for the benfit of the children of Laila Begum and Race View Trust for the benefit of Jani Begum and her son Imdad Jah Bahadur. 'in the Fern Hill Trust Deed Laila Begum was described as wife of the respondent and her children as the children of the respondent by her.
Similarly in the Race View Trust Deed Jani Begum was described as wife of the respondent and lmdad Jah Bahadur as his son by her.
According to the Income Tax Officer the facts that Laila Begum and Jani Begum were described as wives and their children as the children of the respondent in the Trust Deeds executed in 1957 indicated that "certain material facts relevant for the assessment years were not disclosed to the Department, that the statement given by the Financial Adviser is.
untrue and that thereby income chargeable to tax has been under assessed".
In his letter the Income Tax Officer also referred to sec.
268 of Mulla 's Principles of Mohammedan Law which enumerates the circumstances from which marriage will be presumed in the absence of direct proof and stated that the respondent having acknowledged the three ladies as his wives and their children as his children in the Trust Deeds executed in 1950 and 1957 all the circumstances mentioned in see.
268 were present.
The letter concluded by saying that it was established that the ladies and their children were the legal wives and legitimate children of the respondent.
The common counter affidavit affirmed by the Income Tax officer in answer to the writ petitions was on similar lines to the aforesaid latter.
Admittedly Fern Hill and Race View Trust Deeds executed in 1957 were not produced before the Income Tax officer when he made the original assessments for the four years in question.
in the counter affidavit it was alleged that these two Trust Deeds were "material and primary facts necessary for completing the assessments of the petitioner assessee for the relevant assessment years" and it was submitted that if the said two documents had been disclosed at the time of the original assessments, the income Tax Officer "would have certainly arrived.
at the conclusion" that he came to in his letter dated April 15, 1964.
Clause (a) of Sec. 147 of the Income Tax Act, 1961 under which the assessments were sought to be reopened, so far as it is relevant for the present purpose, provides that if the Income Tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his; assessment for any year, income chargeable to tax has escaped assessment for that year, he may assess or reassess such income for the assessment year concerned.
The High court held.
that the reasons assigned for reopening the assessments did not fall within the scope of omission or failure on the part of the assessee to disclose fully and truly all material facts, that all the material facts were before the Department 15 255 Sup.
Cl/75 468 when it made the assessments in question and the trusts created in 1957 did not "throw a different light on the matters already disclosed".
The question is whether the existence of the two trust deeds executed by the respondent in 1957 was a material fact necessary for his assessment for the relevant assessment years.
The fact that the three ladies and their children have been described in these two documents as wives and children of the respondent would have been material if the description were anything new that the Income Tax Officer happened to discover for the first time.
The three trust deeds of 1950 also contained the same description of these ladies and their children and the Income Tax Officer accepted the statement made by respondent 's Financial Adviser Shri G. B. Taraporewala seeking to explain why the ladies had been described as wives therein.
It is true that the trust deeds of 1957 were not produced at the time of the original assessment but we do not see what difference production of these two additional documents could have made which contain the same description of the ladies.
Neither the letter addressed to the respondent 's authorised representatives, M/s. section G. Dastgir and Company, by the Income Tax Officer on April 15, 1964 nor the counter affidavit filed in the High Court explains this point.
The documents of 1957 conform to those of 1950 in material particulars; the trust deeds of 1957 only repeat what the deeds of 1950 had disclosed.
Non production of the documents executed in 1957 at the time of the original assessments cannot therefore be regarded as non disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years.
The High Court was right in holding that the Income Tax officer had no valid reasons to believe that the respondent had omitted or failed to disclose fully and truly all material facts and consequently had no jurisdiction to reopen the assessments for the four years in question.
Having second thoughts on the same material does not warrant the initiation of a proceeding under sec.
147 of the Income Tax Act, 1961.
Mr. Manchanda, learned counsel for the appellant, took us through several sections of Mulla 's Principles of Mohammedan Law including sec.
268 and submitted that in the circumstances of the case it must be presumed that the three ladies were the legally wedded wives of the respondent.
The law has not changed since the original assessments were made and it was open to the Income Tax Officer to make that presumption at the time.
If he should have but did not do so then, he cannot avail of sec.
147 to correct that mistake.
In any event, we are not called upon in this proceeding to record a finding on the question whether in fact the ladies were respondent 's legally wedded wives.
We are concerned only with the question whether the condition precedent to the exercise of jurisdiction under sec.
147 exists in this case; we have found that it does not.
Mr. Manchanda also contended that the High Court exercising jurisdiction under article 226 of the Constitution had no power to investigate whether on the material before him the Income Tax Officer was justified in proceeding under sec.
147 of the Income Tax Act, 1961.
He relied, among others, on the following decisions in support 469 of his contention: section Narayanappa and others vs Commissioner of Income Tax, Bangalore, (1) Kantamani Venkata Narayana and Sons vs First Additional Income Tax Officer, Rajahmundry, (2) Commissioner of Income Tax, Gujarat vs A. Raman & Co. (3) and of course, Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District I Calcutta, (4) We do not think that these decisions help him.
In this case, the decision of the High Court is not that the material before the Income Tax Officer was insufficient or that he had failed to draw the correct conclusion from the material before him but that no fresh material had come to light justifying reopening of the assessments.
The authorities to which Mr. Manchanda referred point out that the expression "reason to believe" occurring in sec.
147 of the Income Tax Act, 1961 or the corresponding sec.
34 of the Act of 1922 does not mean a purely subjective satisfaction on the part of the Income Tax Officer, the reasons for the belief must have a rational connection or a relevant bearing to the formation of the belief, and that the High Court under article 226 of the Constitution has power to set aside a notice under sec.
147 of the Act of 1961 or sec.
34 of the Act of 1922 if the condition precedent to the exercise of jurisdiction under these sections does not exist.
In the result, these appeals fail and are dismissed with costs.
One hearing fee.
An application for intervention in these appeals made by three persons claiming to be sons of the respondent was not ultimately pressed; no order is therefore called for on this application.
Appeals dismissed.

summary/full:
In 1950, the respondent had executed three trust deeds for the benefit of three ladies who were described as his wives, and himself, as the father of their minor children.
After the returns in respect of the assessment year 1955 56, 1956 57, 1957 58 and 1958 59 were filed by the respondent, the Income tax Officer, who had the three trust deeds before him called upon the respondent for information regarding his relationship to those three ladies as well as his relationship to a fourth lady.
A statement was filed, on behalf of the respondent, before the Income tax Officer, wherein it was stated that only the fourth lady was his legally wedded wife, that the other three were merely referred to as the wives, and that their children were not the legitimate children of the respondent.
The Income tax Officer, in assessing the total income of the respondent did not include, under section 16(3) of the 1922 Act, the income of those three ladies and their minor children arising out of the trust properties.
In fact, he assessed them separately with respect to their income from the trust properties.
In 1964 the Income tax Officer issued notices under section 148 of the 1961 Act seeking to reopen the assessments under section 147 on the ground that there were two other trust deeds of 1957, which were not produced before the I. T. 0.
in which also two of the ladies were acknowledged as the wives of the respondent and their children as his children and that their marriage should be presumed because of the acknowledgement.
The respondent there upon challenged the validity of the proceedings and the High Court allowed his petition.
Dismissing the appeal to this Court, HELD : (1) Section 147(a) provides that if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for any year, income chargeable to tax has escaped assessment for that year, he may assess or reassess such income for the assessment year concerned.
The fact that the ladies and their children had been described in the 1957 documents as wives and children of the respondent would have been material if the description were any thing new that the Income tax Officer happened to discover for the first time.
But the 1950,deeds also contained the same description.
The non production of the 1957 documents at the time of the original assessment cannot therefore be regarded as non disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years.
Having second thoughts on the same material does not warrant the initiation of a proceeding under section 147.
[467G H; 468B; D E] (2) The law has not changed or since the original assessments were made and it was open to the Income tax Officer to have made the presumption that the ladies were the wives at the time when he made the assessment.
He cannot avail of section 147 to correct his mistake.
[468F G] (3) The expression 'reason to believe ' occurring in section 147 of the 1961 Act or the corresponding section 34 of the 1922 Act, does not mean a purely subjective satisfaction on the part of the Income tax Officer.
The reasons for the belief must have a rational connection or relevant bearing to the formation of the belief.
Therefore, the High Court, under article 226, has power to set aside a notice under section 147 of the 1961 Act or section 34 of the 1922 Act, if the condition precedent to the exercise of the .jurisdiction under those sections did not exist.
[469C D]


judgement:
Appeal No. 74 of 1952.
Appeal by Special Leave from the Judgment and Decree dated the 10th November 1948 of the High Court of Judicature at Bombay in Appeal from Original Decree No. 274 of 1945 arising out of the decree dated the 17th March 1945 of the Court of Revenue Judge, Bombay in Suits Nos. 7 and 23 of 1943.
C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with him), for the appellant.
M. C. Setalvad, Attorney General for India and Jamshedji Kanga,, (R. J. Kolah and Rajinder Narain, with them), for the respondents.
February 28.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The point for decision in this appeal is as to the liability of certain lands situated within the City of Bombay to be assessed to revenue under the Bombay City Land Revenue Act No. II of 1876.
These lands were originally known as Foras lands, and the rights of the occupants of 1313 those lands were settled by Bombay Act No. VI of 1851, called the Foras Act.
What these rights are, is a matter in controversy between the parties, and will be presently considered.
Between 1864 and 1867 the Government acquired these lands for the purpose of the B.B. C.I. Railway under the provisions of Land Acquisition Act No. VI of 1857.
On 22 11 1938 these lands, being no longer required for the purpose of the Railway, were sold by the Governor General to Lady Pochkhanawalla and others as joint tenants under a deed, Exhibit A.
On 28 3 1939 the survivor of the purchasers under Exhibit A conveyed the lands in trust under Exhibit B, and the respondents are the trustees appointed under that deed.
In April 1942 the appellant acting under the provisions of Bombay Act No. II of 1876, issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein, and calling for their representation.
In their reply, the respondents denied the right of the appellant to assess the lands to revenue, and followed it up by instituting two suits before the Revenue Judge for establishing their rights.
In their plaints, they alleged that under the provisions of the Foras Act the maximum assessment leviable on the lands was 9 reas per burga, and that the Government had no right to enhance it; that the effect of the land acquisition proceedings between 1864 and 1867 was to extinguish the right of the State to levy even this assessment, and that further, having purchased the properties absolutely from the Governor General under Exhibit A. they were entitled to bold them without any liability to pay revenue thereon.
They accordingly prayed for a declaration that the Government had no right to levy any assessment on these lands, or, in the alternative, that such assessment should not exceed what was payable under Bombay Act No. VI of 1851.
The appellant contested the suit.
The Revenue Judge held that as a result of the land acquisition proceedings between 1864 and 1867, the lands vested in the Government freed from any liability to pay assessment, and that when the Governor General transferred them under 1314 Exhibit A without reserving the right to assess them, the purchasers had the right to hold them without any liability to pay revenue.
He accordingly granted a declaration that the appellant had no right to levy assessment, and that the notices issued by him under Act No. II of 1876 were illegal.
On appeal by the defendants to the High Court of Bombay, it was held by Chagla, C.J., Bhagwati, J. concurring, that Act No. VI of 1851 imposed a specific limit on the right of the Government to levy assessments on the lands in question, that, further, by reason of the land acquisition proceedings the right of the Provincial Government to levy assessment even within the limits prescribed by Act No. VI of 1851 was extinguished, and that when the lands were transferred by the Central Government to Lady Pochkhanawalla and others, they got them as revenue free lands.
In the result, the appeal was dismissed.
This appeal by special leave is directed against this decision.
The statutory authority under which the appellant seeks to levy assessment on the lands is section 8 of Bombay Act No. 11 of 1876, and it is as follows: "It shall be the duty of the Collector, subject to the orders of Government, to fix and to levy the assessment for land revenue.
When there is no right on the part of the superior holder in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of Government.
When there is a right on the part of the superior bolder in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit".
It was on the footing that the respondents were 'superior holders ' as defined in the Act, that the appellant issued notices to them in April 1942.
In their reply notices and in the plaints, the respondents did not dispute that position, but only contended in terms of section 8 that they had a specific right in limitation of the right of the Government to assess the 1315 lands; and the entire controversy in the Courts below was whether they had established that right.
No contention was raised that they were not superior holders as defined in the Act, and that, in consequence, no assessment could be imposed on the lands under section 8 of the Act.
In the argument before us, the contention was sought to be raised for the first time by the learned Attorney General that the proceedings taken by the Collector under section 8 were incompetent, as that section would apply only to lands held by superior holders, that the definition of 'superior ' holier ' in section 3 (4) as meaning "the person having the highest title under the Provincial Government to any land in the City of Bombay" would take in only persons who held on a derivative tenure from the Government, that persons who acquired lands from the Government under an outright sale could not be described as 'superior holders ' within section 3 (4), and that the lands held by the respondents were therefore outside the operation of section 8.
On behalf of the appellant, the learned Solicitor General objected to this question being allowed to be raised at this stage of the proceedings, as that would involve investigation of questions of fact and of law, such as whether under the tenures in the City of Bombay, owners held the lands as superior holders, whether under Indian jurisprudence what was paid by the occupier of land was rent or revenue, whether the prerogative right of the Crown to assess lands subsisted in the Presidency Towns of Calcutta, Bombay and Madras and several other questions, for the decision of which there were not sufficient materials.
This objection must be upheld.
In view of the fact that the respondents have, at all stages, claimed immunity from assessment on the basis of section 8, we do not consider that it would be proper to allow them now to change their front, and take up a stand wholly inconsistent with what they had taken, when that involves an investigation into facts which has not been made.
We must, therefore, proceed on the footing that the respondents are `superior holders ' as defined 1316 in section 3 (4) of Act No. 11 of 1876, and that their rights are to be determined in accordance with sec tion 8 of the Act.
Construing that section, the Privy Council laid down in Goswamini ' Shri Kamala Vahooji vs Collector of Bombay(1) two propositions: that though the language of the section would more appropriately apply when the dispute was as to the quantum of assessment ', the right to levy it not being itself controverted, it was open to the superior holder under this section to plead and prove that the State had no right to levy any assessment; and that the burden was on the person who pleaded a limitation on the right of the State to assess, to clearly and unequivocally establish it.
It is, therefore, open to the respondents to plead that the lands are wholly exempt from revenue; but the onus of making it jut lies heavily on them.
The learned Attorney General has sought to establish a right in the respondents in limitation of the right of the appellant to assess the lands on three grounds: (1) the Foras Act No. VI of 1851, (2) the land acquisition proceedings under Act No. VI of 1857, and (3) the sale deed, Exhibit A. Taking first the Foras Act: For a correct appreciation of its provisions, it is necessary to refer Co the history of the lands, which are dealt with therein.
The Island of Bombay once formed part of the Portuguese Domi nions in India.
In 1661 when Princess Infant Catherine was married to King Charles 11 of England, it was ceded by the King of Portugal to the British Crown as dowry, and by a Royal Charter dated 27th March 1668 King Charles 11 granted it to the East India Company.
At that time the Island consisted only of the Fort and the town, and "outside the walls of the town it was scarcely more than rock and marsh which became a group of islands every day on high tide".
Vide Shapurji Jivanji vs The Collector of Bombay(1).
It appears from Warden 's Report on the Landed Tenures in Bombay and Le Mesurier 's Report on the Foras lands, that during the 18th Century the East India Company started (1) (1937) L.R. 64 I.A. 334.
(2) Bom.
483, 488, 1317 reclaiming these lands, and invited the inhabitants to cultivate them, at first without payment of any assessment and subsequently on favourable rates.
These payments were called "Foras".
The meaning of this word is thus explained by Westropp, J. in his note at page 40 in Naoroji Beramji vs Rogers(1): " foras ' is derived from the Portuguese word fora (Latine foras, from foris a door), signifying outside.
It here indicates the rent or revenue derived from outlying lands.
The whole island of Bombay fell under that denomination when under Portuguese rule, being then a mere outlying dependency of Bassein.
Subsequently the term foras was, for the most part, though perhaps not quite exclusively, limited to the new salt batty ground reclaimed from the sea, or other waste ground lying outside the Fort, Native Town, and other the more ancient settled and cultivated grounds in the island, or to the quitrent arising from that new salt batty ground and outlying ground".
Thus, the salt batty lands reclaimed from the sea came to be known as Foras lands by association with the assessments payable thereon called "Foras".
The nature of the interest which the occupants had in the Foras lands was the subject of considerable debate in the beginning of the 19th Century.
In 1804, the Company resumed some of the Foras lands for settling persons displaced in the Town area, and that resulted in a suit by one Sheik Abdul Ambly, wherein the right of the Company to resume the lands was challenged.
The action failed, the Court upholding the claim of the Company to resume them, but at the same time, it observed that its action in dispossessing the occupants would "appear and be felt as a grievous hardship, if not an open and downright injury".
Vide Warden 's Report on the Landed Tenures of Bombay, pages 60 and 61.
Thereafter, the Company had the matter further investigated, and there were reports on the subject by Warden in 1814 and Le Mesurier in 1843.
And finally the Company decided to recognise (1) 4 Boni.
H.C.R. 1. 1318 the rights of the 'Occupants, and that resulted in the enactment of Act VI of 1851.
The relevant provisions of the Act may now be noticed.
The preamble to the Act states that, "Whereas the East India Company are legally entitled to the freehold reversion of the several lands heretofore paying a render called foras, the outline whereof is delineated in a plan and numbered 1, subject to certain tenancies therein at will, or from year to year; whereas it is considered expedient as of grace and favour that the rights of the said East India Company in all of the lands included in the said plan should be extinguished, save as hereinafter mentioned.
It is enacted as follows:" Section 2 enacts that: "From and after the said 1st day of July, the rights of the said Company in all of the said lands mentioned in the said plan No. 1, except those mentioned in the said plan No. 2, shall be extinguished in favour of the persons who shall then hold the same respectively as the immediate rent payers to the said Company, saving the rents now severally payable in respect of such lands, which shall continue payable and recoverable by distress, or by any means by which land revenue in Bombay is or shall be recoverable, under any Act or Regulation Section 4 provides: "Nothing herein contained shall exempt such lands from being liable to any further general taxes on land in Bombay " According to the appellant, the effect of these provisions was to grant the lands to the occupants on a permanent tenure, heritable and alienable, but not further to grant them on a permanent assessment.
Reliance was also placed on the decision in Shapurji Jivanji vs The Collector of Bombay(1), where it was held generally that the Government had the right under section 8 of the Act to enhance the assessments on Foras lands.
There is some support for this contention in the provisions of the Act.
The preamble (1) Bom.
483, 488.
1319 expressly recites that the occupants were tenants at will or from year to year, and that the reversion was with the East India Company.
One consequence of that was that the Company had the right to eject the occupants.
Now, what the Company did under the Act was to give up that right as a matter of grace, because, as already mentioned, it would appear to have invited them to settle on the lands and cultivate them, and it did that by extinguishing its reversion as landlord.
In other words, it agreed to confer on the tenants the status of owners of lands.
If that was all the scope of Act No. VI of 1851, it could not be doubted that the rights of the State to enhance the assessments would not be affected, because ownership of land does not per se carry with it an immunity from enhancement of assessment in exercise of sovereign rights, and occupants of Foras lands cannot claim to be in a better position by reason of the Act than owners of lands in ryotwari tracts, the assessments on which are liable to periodic revision.
But what is against the appellant is that section 2 does not stop with merely extinguishing the reversionary rights of the Company.
It goes further, and saves expressly "the rents now severally payable in respect of such lands", rent being used here in the sense of assessment, and adds "which shall continue to be payable".
Now, the contention of the respondents is that those words conferred on the Government a right to recover only the assessment which was then payable, and that there was thus a limitation on its right to enhance it.
It is common ground that the assessment payable on these lands at that time was 9 reas per burga, and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government in land acquisition proceedings.
It is accordingly contended for the respondents that under the Act, the Government could not claim anything more than 9 reas per burga as assessment on the lands.
It is urged for the appellant that the words "now severally payable" could not be construed as impos 169 1320 ing a limitation on the right of the Government to enhance the assessment, as they occur in a saving clause, the scope of which was to reserve the rights of the Company and not to confer on the occupants rights in addition to what the body of the section had granted to them.
It is true that the setting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants.
But to adopt the construction contended for by the appellant would be to render the words "now severally payable" and "which shall continue to be payable" wholly meaningless.
Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably is that while, on the one hand, the right of the Government to recover the assessment is saved, it is, on the other hand, limited to the amount then payable by the occupants.
The contention of the respondents that under the Foras Act they acquired a specific right to hold the lands on payment of assessment not exceeding what was then payable, must, therefore, be accepted We have next to decide what effect the proceedings taken by the Government under the Land Acquisition Act No. VI of 1857 during the years 1864 to 1867 have on the rights of the parties.
Section VIII of the Act is as follows: "When the Collector or other officer has made an award or directed a reference to arbitration, be may take immediate possession of the land which shall thenceforward be vested absolutely in the Government, free from all other estates, rights, titles and interests".
The contention of the respondents which has found favour with the Courts below is that under that section the effect of the vesting of the lands in the Government was to extinguish whatever interests were previously held over them, that the right of the Government to levy assessment was such an interest, and that it was also extinguished.
It is argued that when lands are acquired under the Act, the valuation that is made is of all the interests subsisting thereon, including the 1321 rights of the Crown to assess the lands, as well as the interests of the claimants therein, that what is paid to the owners is not the full value of the lands but the value of their interests therein, deduction being made of the value of the right of the Government to assess from out of the full value, and that, in effect, there was an award of compensation for the right to assess, and that, therefore, that right equally with the rights of the claimants over the lands would be extinguished.
One of the awards has been marked as Exhibit P, and the respondents rely on the recitals therein that the compensation to the claimants was "for their interest in the said lands".
The award, it must be mentioned, directs the Government to pay the claimants the amounts specified therein, but contains no provision for payment of any sum as compensation to the Government for its right to assess the lands; nor does it even value that right.
But the respondents contended that the Government being the authority to pay must be deemed to have paid itself, and that, in any event, if they were entitled to compensation, their failure to claim it could not affect the result, which was that the right to levy assessment would be extinguished.
We are unable to accept this contention.
When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them.
If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user.
In the Matter of the Land Acquisition Act: The Government of Bombay vs Esupali Salebhai(1) Batchelor, J. observed: "In other words Government, as it seems to me, are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compen (1) Bom. 618, 686.
1322 sation based upon the market value of the whole of land, must be distributed among the claimants".
There, the Government claimed ownership of the land on which there stood buildings belonging to the claimants, and it was held that the Government was bound to acquire and pay only for the superstructure, as it was already the owner of the site.
Similarly in Deputy Collector, Calicut Division vs Aiyavu Pillay(1), Wallis, J. (as he then was) observed: 'It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government".
With these observations, we are in entire agreement.
When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own.
An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition.
The language of section VIII of Act No. VI of 1857 also supports this construction.
Under that section, the lands vest in the Government "free from all other estates, rights, titles and interests", which must clearly mean other than those possessed by the Government.
It is on this understanding of the section that the award, Exhibit p, is framed.
The scheme of it is that the interests of the occupants are ascertained and valued, and the Government is directed to pay the compensation fixed for them.
There is no valuation of the right of the Government to levy assessment on the lands, and there is no award of compensation therefor.
We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of section VIII (1) [1911] 9 I C 341. 1323 of Act VI of 1857.
But is this assumption wellfounded? We think not.
In its normal acceptation, "interest" means one or more of those rights which go to make up "ownership".
It will include for example, mortgage, lease, charge, easement and the like.
but the right to impose a tax on land is a prerogative right of the Crown, paramount to the ownership over the land and outside it.
Under the scheme of the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights comprised therein.
Section 3(b) of the Land Acquisition Act No. I of 1894 defines a "person interested" as including "all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land".
Section 9 requires that notices should be given to all persons who are interested in the land.
Under section 11, the Collector has to value the land, and apportion the compensation among the claimants according to their interest in the land.
Under section 16, when the Collector make an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance".
The word "en cumbrance" in this section can only mean interests in respect of which a compensation was made under section 11, or could have been claimed.
It cannot include the right of the Government to levy assessment on the lands.
The Government is not a "person interested" within the definition in section 3 (b), and, as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor.
It is true that there is in Act No. VI of 1857 nothing corresponding to section 3(b) of Act No. I of 1984, but an examination of the provisions of Act No. VI of 1857 clearly shows that the subject matter of acquisition under that Act was only ownership over the lands or its constituent rights and not the right of the Government to levy assessment.
The provisions relating to the issue of notices to persons interested 1324 and the apportionment of compensation among them are substantially the same.
Moreover, under section VIII the Government is to take the lands free from all other "estates, rights, title and interest", and "interest" must, in the context, be construed ejusdem generis with "estates" etc., as meaning right over lands, of the character of, but not amounting to an estate, and cannot include the prerogative right to assess the lands.
It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government, that the right of the latter to levy assessment was not the subject matter of those proceedings, and that if after the award the lands were not assessed to revenue, it was because there could be no question of the Government levying assessment on its own lands.
Then there remains the question whether the sale deed, Exhibit A, imposes any limitation on the right of the Crown to assess the lands.
The deed conveys the lands to the purchasers absolutely "with all rights, easements and appurtenances whatsoever" to be held "for ever".
It does not, however, recite that they are to be held revenue free.
But it is argued for the respondents that where there is an absolute sale by the Crown as here, that necessarily imports that the land is conveyed revenue free; and section 3 of the Crown Grants Act No. XV of 1895 and certain observations in Dadoba vs Collector of Bombay(1) were relied on as supporting this contention.
Section 3 of Act No. XV of 1895 is as follows: "All provisions restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statute or enactment of the Legislature to the contrary notwithstanding".
The contention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue.
But that will be extending the bounds of section 3 beyond its con (1) (1901] I.L.R. , 1325 tents.
The object of the Act as declared in the preamble is to remove certain doubts "as to the extent and operation of the , and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority".
Section 2 enacts that the provisions of the do not apply to Crown grants.
Then follows section 3 with a positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor.
Reading the enactment as a whole, the scope of section 3 is that it saves "provisions, restrictions, conditions and limitations over" which would be bad under the provisions of the , such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like.
But no question arises here as to the validity of any provision, restriction, condition, or limitation over, contained in Exhibit A on the ground that it is in contravention of any of the provisions of the , and there is accordingly nothing on which section 3 could take effect.
It is argued by the learned Attorney General that this limitation on the scope of the Act applies in terms only to section 2, and that section 3 goes much further, and is general and unqualified in its operation.
The scope of section 3 came up for consideration before the Privy Council in Thakur Jagannath Baksh Singh vs The United Provinces(1).
After setting out that section, Lord Wright observed: "These general words cannot be read in their apparent generality.
The whole Act was intended to settle doubts which had arisen as to the effect of the , and must be read with reference to the general context. . .
In this view, section 3 must also be construed in the light of the preamble, and so construed, it cannot, for the reasons already given, have any bearing on (1) 1326 the rights of the parties.
Moreover, that section only enacts that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor, and what is relied on is not any provision, restriction, condition or limitation over, in Exhibit A which according to its tenor entitles the respondents to hold the lands rent free, but the absolute character of the interest conveyed under Exhibit A.
Therefore, section 3 does not in terms apply.
The respondents also relied on certain observations in Dadoba vs Collector of Bombay(1) as supporting their contention.
There, the facts were that the Government had granted one parcel of land to the Free Church Mission of Scotland revenue free under a deed dated 1 10 1884.
By another deed dated 20 12 1887 they released their right of reversion on two other parcels of land held by the Mission as tenants but "subject to the payment of taxes, rates, charges, assessments leviable or chargeable in respect of the said premises or anything for the time being thereon".
On 16 1 1888 the Mission sold all the three parcels to one Janardan Gopal, and the Secretary of State joined in the conveyance for effectually releasing the reversion of the Government.
Before Janardan Gopal purchased the lands, there had been correspondence between his solicitors and the Government as to the assessment payable on the lands, and the Government had intimated that it would be 9 pies per square yard per annum.
Subsequent to the purchase, the Collector raised the assessment payable on the lands, and the point for decision was whether he could lawfully do so.
In deciding that he could not, Sir Lawrence Jenkins stated that the purchaser had paid full value for the lands in the belief induced by the Government that the assessment of 9 pies per sq.
yard would be permanent, and that on the facts, the case fell within section 115 of the Evidence Act, and that the Government was estopped from enhancing the assessment.
He was also prepared to hold that the correspondence between the purchaser and the Government prior to (1) Bom.
1327 the sale amounted to a collateral contract not to raise the assessment.
Chandavarkar, J., concurred in the decision, and in the course of his judgment observed: ". when we have regard to the nature of the transaction, viz., that Government was selling the property out and out as any private proprietor when we look to the whole of the language used . the intention of the parties must be taken to have been that the purchaser was to be liable to pay the amount of 9 pies per square yard per annum then levied as assessment and no more".
These observations have been relied on as supporting the contention that when there is an absolute sale by the Government, it amounts to an agreement not to levy more assessment than was payable at that time.
But the remarks of the learned Judge have reference to the recitals in the deed dated 20 12 1887 and the negotiations between the purchaser and the Government which are referred to in the passage, and not to the character of the transfer as an absolute sale; and the decision is based on a finding of estoppel or collateral contract deducible from the correspondence between the purchaser and the Government.
Neither section 3 of the Crown Grants Act, nor the observa tions in Dadoba vs Collector of Bombay(1) lend any support to the contention that an absolute sale of lands by the Government ipso facto confers on the purchasers a right to hold the lands free of revenue.
The question then is whether on the, terms of Exhibit A such a right could be held to have been granted.
There was some discussion at the Bar as to the correct rule of construction applicable to the deed, Exhibit A.
It was argued by the learned Solicitor.
General for the appellant that being a Crown grant, Exhibit A should be construed in favour of the Crown and against the grantee.
On the other hand, it was argued by the learned Attorney General that it should make no difference in the construction of the grant, whether the grantor was the Crown or a subject, as (1) Bom.
170 1328 the question in either case was what had been granted; and that must be determined on the language of the deed.
When closely examined, it will be seen that there is no real conflict between the two propositions.
The former is in the nature of a rule of substantive law; and its scope is that where as the transferee from a subject acquires, unless the contrary appears, all the rights which the transferor has in the property as enacted in section 8 of the , a grantee from the Crown gets only what is granted by the deed, and nothing passes by implication.
But when the grant is embodied in a deed, the question ultimately reduces itself to a determination of what was granted thereunder.
What the Court has to do is to ascertain the intention of the grantor from the words of the document, and as the same words cannot be susceptible of two different meanings, it makes no differenbe whether they occur in a grant by the Crown or by the subject.
If the words used in a grant by a subject would be effective to pass an interest, then those words must equally be effective to pass the same interest when they occur in a Crown grant.
Dealing with this question, Sir John Coleridge observed in Lord vs Sydney(1): "But it is unnecessary for their Lordships to say more on this point, because they are clearly of opinion, that upon the true construction of this grant, the creek where it bounds the land is ad medium film, included within it.
In so holding they do not intend to differ from old authorities in respect to Crown grants; but upon a question of the meaning of the words, the same rules of common sense and justice must apply, whether the subject matter of construc tion be a grant from the Crown, or from a subject; it is always a question of intention, to be collected from the language used with reference to the surrounding circumstances 'section Exhibit A has to be construed in the light of these principles.
As already stated, there is no recital in the deed that the purchasers are entitled to, hold the lands free of assessment.
On the other hand, it (1) (1859] ; , 496, 497; ; , 1000.
1329 expressly provides that the properties will be subject "to the payment of all cesses, taxes, rates, assessments, dues and duties whatsoever now or hereafter to become payable in respect thereof", which words would in their natural and ordinary sense cover the present assessment.
In Dadoba vs Collector of Bombay(1), the Court had to consider a clause similar to the above contained in a deed executed by the Government in favour of the Mission on 20 12 1887.
Dis cussing the effect of this clause on the rights of the plaintiff to hold the property permanently on an assessment of 9 pies per sq. yard, Chandavarkar, J. observed: "When that deed says that the property was sold 'subject to the payment of all taxes, rates, charges, assessments leviable or chargeable ', it leaves the question open as to what the taxes etc., are which are `leviable or chargeable '.
Extrinsic evidence of that is admissible, for it neither contradicts nor varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which, taken by themselves, are capable of explanation: see Bank of New Zealand vs Simpson (2) ".
In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it was a possible view to take that the clause in question was not decisive on that question, and that it was left open.
But here, the question is whether a right was granted to the purchasers to hold the lands free from liability to be assessed, and the clause in Exhibit A clearly negatives such a right.
Even if we are to regard the question as left open, as observed in Dadoba vs Collector of Bombay(1), it will not assist the respondents, as they have not established aliunde any right to hold the lands free from assessment.
It must, therefore, be held that far from ex empting the lands from liability to be assessed to revenue, Exhibit A expressly subjects them to it.
It was finally contended that even if the land acquisition proceedings between 1864 and 1867 had not the (1) Bom.
(2) 1330 effect of extinguishing the right of the Government to levy assessment, and that even if Exhibit A conferred on the purchasers no right to hold the land revenue free, the assessment which the Government was entitled to levy under section 8 of Act No. II of 1876 was limited to what was payable under the Foras Act No. VI of 1851, and that the appellant had no right to levy assessment at a rate exceeding the same.
The argument in support of the contention was that it was an incident of the Foras tenure under which the lands wore held, that the occupants were bound to pay only a fixed assessment, that the incident was annexed to the lands, and was inseparable therefrom, that between the dates when the lands were acquired under the Land Acquisition at No. VI of 1857 and 22 11 1938 when they were sold under Exhibit A they continued to retain their character as Foras lands, that if no assessment was paid on the lands during that period, it was because the hand to pay and the hand to receive were the same, that when they came to the respondents under Exhibit A, they became impressed with the Foras tenure, and that, in consequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851.
This contention is, in our judgment, wholly untenable.
When the lands were acquired under the Land Acquisition Act No. VI of 1857, the entire "estate, right, title and interest" subsisting thereon became extinguished, and the lands vested in the Government absolutely freed from Foras tenure, and when they were sold by the Government under Exhibit A the purchasers obtained them as freehold and not as Foras lands.
As the tenure under which the lands were originally held had become extinguished as a result of the land acquisition proceedings, it was incapable of coming back to life, when the lands were sold under Exhibit A.
In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of the respondents, the learned Attorney General relied on the following observations of 1331 Das, J. in Collector of Bombay vs Municipal Corporation of the City of Bombay and others(1): "The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose".
But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent free, they having entered into possession under a resolution of the Government that no rent would be charged.
And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title 'was the right to hold the lands revenue free.
But the question here is whe ther the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857.
If, as observed in the above passage, the liability to pay assessment was "an integral part or an inseverable incident of the title", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.
There is another difficulty in the way of accepting the contention of the respondents.
The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands.
Section I of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause.
But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed (1) ; , 52, 1332 by the respondents are not within the saving clause.
In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.
We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
In the island of Bombay certain lands were held on a tenure known as "Foras".
Under section 2 of Bombay Act VI of 1851 the occupants were entitled to hold the lands subject only to the payment of revenue then payable.
Between 1864 and 1867 the Government of India acquired these lands under the provisions of the Land Acquisition Act (VI of 1857).
On 22 11 1938 the Governor General sold them to certain persons under whom the present respondents claimed.
In April 1942 the appellant acting under the Bombay City Land Revenue Act (Bombay Act II of 1876) issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein.
The respondents thereupon instituted two suits disputing the right of the appellant to assess the lands to revenue.
They contended that under the Foras Land Act the occupants had acquired the right to hold the lands on payment of revenue not exceeding what was then payable, that the right to levy even that assessment was extinguished when the Government acquired the lands under the Land Acquisition Act, that the Governor General having conveyed the lands absolutely under the sale deed dated 22 11 1938 the respondents were entitled to hold them revenue free and that even if revenue was payable it could not exceed what was payable under the Foras Land Act.
Held, (i) that under the Foras Land Act (VI of 1851) the occupants of Foras lands acquired a specific right to hold them on payment of assessment not exceeding what was then payable.
(ii) that the right of the Government to levy assessment was not the subject matter of the land acquisition proceedings and that the effect of those proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government.
(iii) that where there is an absolute sale by the Crown it does not necessarily import that the land is conveyed revenuefree.
The question is one of construction of the grant.
The rule is that a grantee from the Crown gets only what is granted by the 168 1312 deed and nothing passes by implication.
When the grant is embodied in a deed the question ultimately reduces itself to a determination of what was granted thereunder.
Section 3 of the Crown Grants Act (XV of 1895) that "all provisions, restrictions conditions and limitations over shall take effect according to their tenor" does not apply when the question is as to the liability to pay revenue.
(iv)that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and it was incapable of coming back to life when the lands were sold on 22 11 1938 and the respondents cannot claim a right to pay assessment only at the rate at which it was payable under the Foras Land Act.
Goswammi Shri Kamala Vahooji vs Collector of Bombay ([1937] L.R. 64 I.A. 334), Shapurji Jivanji vs The Collector of Bombay ([1885] I.L.E. , 488), Naoroji Beramji vs Rogers , Deputy Collector, Calicut Division vs Aiyavu Pillay ([1911] , Dadoba vs Collector of Bombay ([1901] I.L.R. , Thakur Jagannoth Baksh Singh vs The United Provinces ([1946] F.L.J. 88) and Collector of Bombay vs Municipal Corpration of the City of Bombay and others ([1952] S.C.R. 43), referred to.


judgement:
etition No. 254 of 1974.
Petition under Article 32 of the Constitution of India.
section K. Gambhir, for the petitioner.
P. K. Chatterjee and G. section Chatterjee, for the respondent.
, The particulars of the ground of detention refer to a single incident described thus: "That on 24 5 72 at about 10 35 hrs.
you along with your associates broke BEX Wagon No. WR 75961 loaded with food grains at Mathurapur Goods sidings and decamped with 10/12 bags of wheat and rice.
Your action caused disruption of supply and services".
After the rule issued in this habeas coprus petition was served on the respondent, the State of West Bengal, the District Magistrate filed a counter affidavit in answer to the petition.
Paragraph 5 of the aforesaid affidavit says that the order of detention was passed after the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community; that the District Magistrate was satisfied that if the petitioner was not detained he was likely to act in a manner described above; and that : "The nature of act, the manner in which the same was committed, the effect and result of said activity upon the community and the question of supply of food grains were taken by me into consideration before making the order of detention".
Learned counsel appearing on behalf of the petitioner argues that the petitioner was ordered to be detained on the basis of a single, isolated incident and that no reasonable person could possibly come to the conclusion that it was necessary to detain the petitioner in order to prevent him from acting prejudicially to the maintenance of supplies and services essential to the community.
This submission, in our opi nion, is well founded and must be accepted.
in Debu Mahato vs State of West Bengal(1), the Distt.
Magistrate had passed an order directing that the petitioner therein be detained with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community.
Only one ground of detention was set out, namely, that the petitioner and his associates were found removing three bales of empty jute bags after breaking open a. railway wagon and that when challenged by the Railway Protection Force they fled away leaving the booty behind.
A Bench consisting of three learned Judges held that though it could not be laid down as &a invariable rule that in no case can a single, solitary act form the basis for reaching the satisfaction that the detenu might repeat such acts in future, in the circumstances of the particular case one solitary isolated act of wagon breaking committed by the petitioner could not possibly persuade any reasonable person to reach the satis faction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking.
This conclusion was not reached by the Court on the basis that what was stolen was empty jute bags.
The conclusion is based on the circumstance that (1) 451 what was alleged against the petitioner was his involvement in a solitary, isolated act of wagon breaking and secondly, nothing was said by the District Magistrate in his counter affidavit suggesting that wagon breaking had become so rampant that in the context of the peculiar situation, the District Magistrate arrived at the requisite satisfaction in spite of the fact that the act on which the satisfaction was founded was just one single, solitary act of wagon breaking.
No two cases can have precisely indentical facts but we are unable to see any material distinction in the facts of the case before us and the facts in Debu Mahato 's case.
A single act has been attributed to the petitioner and it consists of a theft of 10 or 12 bags of wheat and rice after breaking open a wagon.
The act was not accompanied by violence or by show of force and the District Magistrate has not stated in his affidavit that by reason of the peculiarity or enormity of the situation, he formed the requisite satisfaction as regards the necessity to detain the petitioner, even though the satisfaction was founded on an isolated incident.
Mr. Chattarjee who appears on behalf of the State of West Bengal, argues that the judgment of this Court in Debu Mahato 's case was predominantly influenced by the consideration that the District Magistrate in his counter affidavit had stated that the petitioner was "one of the notorious wagon breakers" and was engaged in systematic breaking of railway wagons.
We are unable to agree.
Two ground s were urged in Debu Mahato 's case for invalidating the detention order.
The first 'ground was that the District Magistrate could not have possibly reached the satisfaction on the basis of a single incident that unless the petitioner was detained, he would indulge in further acts of wagon breaking.
While considering this argument, no reference at all was made by the Court to the fact that in the counter affidavit, the District Magistrate had referred to circumstances which were not disclosed to the detenu.
Having held that the order was liable to be set aside on the ground that the satisfaction of the District Magistrate was truly no satisfaction at all, the Court proceeded to consider the second ground of attack , namely, that the order of detention was based on facts not disclosed to the petitioner.
That is why the judgment on the second ground of attack begins by saying : "There was also another angle from which the validity of the order of detention was challenged on behalf of the petitioner".
It is manifest from the judgment that the order of detention was held to be bad on two separate and distinct grounds and the reasons which weighed with the Court on the second aspect of the matter did not influence its decision on the first ground of attack.
Counsel for the State then urged that the sufficiency of grounds of detention is not a justiciable issue and all that the Courts can consider is whether the grounds of detention are germane to the purpose for which the detention has been ordered.
Learned counsel argues that if wagon breaking for the purpose of committing theft of foodstuffs bears nexus with the maintenance of supplies and services essential to the community, the detention must be upheld at all events and the Courts have no jurisdiction to enter into the question whether any 255SuP.Cl/75 452 other conclusion was possible on the basis of facts placed before the detaining authority.
It is true that Courts cannot sit in appeal over the propriety of detention orders.
But the argument of the State overlooks the distinction between the Court 's jurisdiction in regard to the sufficiency of grounds necessitating the detention and its jurisdiction to examine whether a reasonable person could at all reach the conclusion that unless the person w is detained he would in all probability indulge in a similar course of conduct.
We are not concerned to consider whether the District Magistrate was justified in passing the order of detention on the strength of the material available to him.
So long as the grounds of detention are germane to the purpose of detention, Courts do not weigh the evidentiary value of the data placed before the detaining authority in order to determine the sufficiency of that data as justifying the order of detention.
The point of the matter is that considering the nature of the act attributed to the petitioner and its context, and not merely the fact that the ground of detention refers to a single incident, the satisfaction reached by the District Magistrate that the petitioner, unless detained, was likely to commit similar acts in the future is such as no reasonable person could possibly reach.
The conclusion that the past conduct of the detenu raises an apprehension regarding his future behaviour must at least be rational.
Accordingly, we set aside the order of detention, make the rule in this petition absolute and direct that the petitioner shall be released forthwith.
P.H.P. Petition allowed.

summary/full:
The petitioner was detained under the Maintenance of Internal Security Act on the ground that on a particular day he along with his associates broke open a railway wagon loaded with foodgrains.
The petitioner in Writ Petition filed in this Court under article 32 contended that he was detained on the basis of a single isolated incident and that no reasonable person could possibly come to the conclusion that it is necessary to detain the petitioner in order to prevent him from acting prejudicially to the Maintenance of Supplies and Services essential to the community.
It was contended by the respondent that the sufficiency of grounds of detention is not a justiciable issue and all that the courts can consider is whether the grounds of detention are germane to the grounds on which the detention has been ordered.
If wagon breaking for the purpose of committing theft of foodstuffs bears nexus with the maintenance of supplies and services essential to the community, the detention must be upheld at all events and the courts have no jurisdiction to enter into the question whether any other conclusion was possible on the basis of facts placed before the detaining authority.
Setting aside the detention, HELD : Following the decision of this Court in Debu Mahato vs State of West Bengal, , it is true that the courts cannot sit in appeal over the propriety of a detention order.
But there is a distinction between the Court 's jurisdiction in regard to the sufficiency of grounds necessitating the detention and its jurisdiction to examine whether a reasonable person could at all reach the conclusion that unless a person was detained he would in all probability indulge in a similar course of conduct.
So long as the grounds of detention are germane to the purpose of detention courts do not weigh the evidentiary value of the data placed before the detaining authority.
In the present case, no reasonable person can come to the conclusion on the basis of a solitary act of wagon breaking that it is necessary to detain the petitioner.
Considering the nature of the act attributed to the petitioner and its context and not merely the fact that the ground of detention refers to a single incident the satisfaction reached by the District Magistrate that the petitioner, unless detained, was likely to commit similar acts in the future, is such as no reasonable person could possibly reach.
The conclusion that the past conduct of the detenu raises apprehension regarding his future behaviour must at least be rational.
[452A BD]


judgement:
minal Appeal No. 228 of 1970.
Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970.
D. N. Nijhawan, Urmila Kapoor and Kamlesh Bansal, for the appellant.
Sardar Bahadur Saharya, for the respondents.
Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites.
out of this wedlock a daughter, Respondent No. 2, was born on November 22, 1957.
On October 18, 1966, Respondent No. 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty.
During the pendency of that petition, she filed all application under section 488 of the Code of Criminal Procedure, 1898, in the court of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter, on the ground that the appellant had neglected and refused to maintain them.
At the date of the application Respondent No. 1 was employed as a stenographer on a monthly salary of Rs. 600/ .
The appellant was at that time earning about Rs. 800/ per month.
However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increased by Rs. 1501 , approximately.
By his order dated June 6,1969 the Magistrate directed the husband to pay Rs. 250/ per month i.e. Rs. 175/ for the wife and Rs. 75/ for the child for their maintenance.
While fixing the amount of maintenance for the wife, the Magistrate did not take into consideration her own independent income.
Against the order of the Magistrate, the husband went in revision to the Court of Session.
The Additional Sessions Judge was of the view that since the income of the wife was "substantial" and enough to maintain herself".
she was not entitled to any maintenance.
He was further of the opinion that Rs. 75/ p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/ p.m. for the period of the pendency of the application in the trial court and thereafter to Rs. 150/ p.m.
He referred the case to the High Court under section 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of the child be enhanced as aforesaid.
485 A learned single Judge of the High Court who heard the reference held that in "making an order for maintenance in favour of a wife under section 488 of the Code of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such a thing".
He therefore declined the refe rence pro tanto, but accepted the same in regard to the enhancement of the allowance of the child.
Aggrieved by the judgment of the High Court, the husband has now come in appeal before us.
The material part of Section 488 of the Criminal Procedure Code is in these terms: "(1) if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
(2) to (5). " The corresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1 st April 1974, reads: "125.
(1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority , where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself.
a Magistrate of the first class may, upon proof of a such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. " A comparative study of the provisions set out above would show that while in Section 488 the condition "unable to maintain itself" 486 apparently attached only to the child and not to the wife, in Section 125, this condition has been expressly made applicable to the case of wife.
Does this recasting of the old provision signify ally fundamental change in the law? Or, has this been done merely to clarify and make explicit what was formerly implict ? Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances.
The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary.
A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband.
of course, the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case.
Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision.
Sections, 488, 489 and 490 constitute one family.
They have been grouped together in Ch.
XXXVI of the Code of 1898 under the caption, "of the maintenance of wives and children".
This Chapter, in the words of Sir James Fitzstephen, provides " a mode of preventing vagrancy, or at least of preventing its consequences".
These provisions are intended to fulfil a social purpose.
Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children.
By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.
Thus, S section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties.
The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive.
As pointed out in Thompson 's case(1) "the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts".
Sub section (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights.
The stage is now set for appreciating the contentions canvassed by the learned Counsel for the parties.
Mr. Nijhawan, learned Counsel for the appellant contends that if section 488(1) is construed in the light of its primary object and.
the nature of the jurisdiction conferred by it, together with section 489(1), it would be amoly clear that in determining the wife 's claim to maintenance and its quantum, her independent income is a relevant consideration.
in support of this contention, Counsel has referred to Mohd. Ali vs Mt. (1) 6 N.W.P. 205.
487 Sakina Begum(1) Narasimha Ayyar vs Rangathayammal(2); Ploonnabalam vs Saraswathi(3); Ahmed Ali Saheb vs Sarfara linisa Begum (4) and P. T. Ramankutty A chan vs Kalyanikutty(5).
As against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of a wife to maintain herself, a condition precedent to the grant of maintenanceas it does in the case of child shows that the intention of the Legislature was that the wife 's own income or means should not be taken into account either for determining her right to maintenance or for fixing its amount.
It is further urged that the language of section 489 cannot be called in aid to construe section 488 (1).
Reliance for the main argument has been placed on Major Joginder Singh vs Bibi Raj Mohinder Kaur.(6) In Major Joginder Singh 'section case (supra), the wife had claimed maintenance under section 488, Cr. P. C. both for herself and her minor son.
The husband was a Major in the army, getting Rs. 1070/ p.m.
It is not very clear from the Report as to whether the wife was having any substantial income of her own.
However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance.
The learned Judge who decided the case, negatived the contention, thus : "It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself '.
No such condition has been imposed in the case of a wife.
Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to consider the implication of this distinction while construing the scope and effect of section 488.
In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it. " Commenting on the cases cited before him, the learned Judge further observed : "But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under section 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that also only if she has no other means or source, then I must with respect, record my emphatic dissent.
" It may be noted that the above principle spelled out from the interpretation of section 488(1) in Major Joginder Singh 's case (supra), (1) A.I.R. 1944 Lah.
(3) A.I.R. 1957 Mad. 693.
(5) A.I.R. 1971 Kerala 22.
(2) A.I.R. 1947 Mad.
(4) A.I.R. 1952 Hyd. 76 (6) A.I.R. 1960 Punjab 249.
488 was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors.
vs Cliander Kishore and Ors.(1) to deduce the proposition that the wife 's right to receive maintenance under section 488, Criminal Procedure Code is an absolute right.
In our opinion, one wrong assumption has led to another false deduction.
The mere fact that the language of section 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife 's own separate income or means of support.
There is a clear distinction between a wife 's locus standi, to file a petition under section 488 and her being entitled, on merits, to a particular amount of maintenance thereunder.
This distinction appears to have been overlooked in Major Joginder Singh 's case (supra).
Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate.
As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband.
The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family.
The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.
There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration.
Rather, there is a definite indication in the language of the associate section 489(1) that the financial resources of the wife are also a relevant consideration in making such a determination.
Section 489(1) provides inter alia, that "on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit".
The "circumstances" contemplated by section 489(1) must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife.
Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under section 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife.
(1) A.I.R. 1969 Delhi 235.
489 We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar.
It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder Singh 's case (supra) was explained and distinguished.
That case in P. T. Ramankutti vs Kalyankutty (supra) therein, the husband was getting a net salary of Rs. 240/ , while the monthly salary.
of the wife was (after deductions) Rs. 210/ .
The question, was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code.
after referring to the observations of Dua, J. in Major Joginder Singh 's case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ; "To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima facie appear to be against the language of the section because the condition "unable to maintain itself" appearing therein attaches itself only to child and not to wife.
But that condition has application only in considering the maintainability of a petition filed under s.488.
A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself.
But on her application at the time of the granting of monthly allowance to her there is nothing prohibiting the Court from considering whether she can maintain her self with her own income and if she can, granting her nothing by way of allowance.
" Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands.
It is next contended on behalf of the appellant that section 488 must be deemed to have been partially repealed and modified by section 23 of the (for short, called the Act) which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard "to the value of the wife 's property and any income derived from such property or from the claimant 's own earning or from other sources".
Clause (b) of s.4 of that Act provides "Save as otherwise expressly provided in this Act (a) x x x (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
" The question therefore resolves itself into the issue : whether there is any thing in s.488 which is in consistent withs .23 or any other provisions of the act.
This matter is no longer resititegra.
In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78 of 1956 and section 488, Criminal Procedure (1) ; 490 Code.
Both could stand together.
The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus.
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488, Cr. P. C. The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
We have said and it needs to be said again, that section 488 is intended to serve a social purpose.
It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution become a hazard to the well being of orderly society.
As against this, section 23 and other provi sions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law.
This contention therefore is meritless and we negative the same.
For the reasons aforesaid, we allow the appeal, set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance.
In the case of the wife, he shall together with other relevant circumstances, take into account her income also.
In the case of the daughter, he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance.
V.P.S. Appeal allowed.

summary/full:
The separate income and means of the wife can be taken into account in determining the amount of maintenance payable to her under section 488, Criminal Procedure Code, 1898.
[490 D] (1)(a) The section does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances.
The use of the word ,may ' in section 488(1) indicates that the power conferred on the Magistrate is discretionary, though the discretion must be exercised in a judicial manner consistently with the language of the statute and with due regard to other relevant circumstances of the case.
[486 B I] (b)The object of Ss. 488 to 490 being to prevent vagrancy and destitution, the Magistrate has to find out what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is consistent with the status of the family.
Such needs and requirements of the wife can be fairly determined only if her separate income, also, is taken into account together with the earnings of the husband and Ms commitments.
[488 D E] (c)The mere fact that the language of section 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife 's own separate income or means of support.
There is a clear distinction between a wife 's locus standi to file a petition under the section and her being (entitled to a particular amount of maintenance.
Even in the case of a neglected child the proof of the preliminary condition, namely, the inability to maintain itself, will only establish the child 's competence to file the petition; but its entitlement to maintenance and the fixation of the amount would depend upon the discretion of the Magistrate.
[485 B D] (d)There is nothing in the sections to show that in determining the maintenance the Magistrate should take into account only the means of the husband and not the means of the wife.
On the contrary, section 489(1) provides that 'on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance, the Magistrate may make such alteration in the allowance as he thinks fit; ' and 'circumstances ' must include financial circumstances.
[488 E G] P.
T. Ramankutty Achan vs Kalyanikutty, A.I.R. 1971 Kerala 22, approved.
Major Joginder Singh.
vs Bivi Raj Mohinder Kaur, A.I.R. 1960, Punjab 249, and Nanak Chand Banarsi Das and Ors.
vs Chander Kishore and Ors.
A.I.R. 1969 Delhi 235.
overruled.
(2)Section 488, Cr.P.C., provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties It provides a machinery for the summary enforcement of the moral obligation of a man towards his wife and children.
But section 23 and other provisions of the , relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives and dependents under their personal law.
There is no inconsistency between the 1956 Act 16 M 255 Sup CI/75 484 and section 488, Cr.
P.C. Both could stand together, and hence, there is no question of section 488 being partially repealed or modified by section 23 of the 1956 Act.
[490 A B] Manak Chand vs Shri Chandra Kishore Agarwal and Ors.
, ; , followed.