judgement:
ivil Appeal No. 1617 of 1968.
Appeal by special leave from the judgment and decree dated March 19, 1968 of the Allahabad High Court in Second ' Appeal No. 2296 of 1961.
1. P. Goyal and A. G. Ratnaparkhi, for the appellant.
C.B.Agarwala and R. Mahalingier, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
The question of law that arises for decision in this appeal by special leave is not free from difficulty.
That question is whether a decree for eviction obtained in a suit instituted after obtaining the permission of the Commissioner under sub section
3 of section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (to be hereinafter referred to as the Act) becomes unenforceable if the State Government acting under section 7(F) of that Act revokes the permission granted by the Commissioner after the decree is passed ? The appellant was a tenant of the respondent in respect of a shop in Balugani in Agra.
On January 2, 1959, the respondent applied to the District Magistrate under section 3(1) of the Act for permission to institute a suit against the appellant for evicting him from the shop in question.
That application was rejected by the District Magistrate as per his order of July 9, 1959.
The respondent took up the matter in revision to the Commissioner under sub section 2 of section 3.
The Commissioner reversed the order of the District Magistrate and granted the permission asked for on October 16, 1959.
As against that order the appellant moved the State Government under section 7(F) on November 17, 1959.
On January 299 1, 1960, the respondent served on the appellant a notice under section 106 of the Transfer of Property Act.
The appellant replied to that notice on January 6, 1960.
In that reply he informed the respondent that he had already moved the State Government to revoke the permission granted by the Commissioner.
On February 13, 1960 the respondent instituted suit No. 115 of 1960 in the Court of Munsiff, Agra seeking the eviction of the appellant from the suit premises.
The appellant filed his written statement in that case on May 7, 1960.
Therein again he took the plea that the permission granted by the Commissioner is not final as he had moved the Government to revoke the same.
The suit was decreed by the learned Munsiff on November 2, 1960.
The appellant went up in appeal as against that order to the Civil Judge, Agra.
On January 27, 1961, the State Government revoked the permission granted by the Commissioner during the pendency of the appeal.
Relying on this order the Civil Judge of Agra allowed the appeal of the appellant on February 9, 1961.
As against that decision the respondent went up in second appeal to the High Court.
The High Court allowed the second appeal on 19th March 1968 following the Full Bench decision of the Court in Bashi Ram vs Mantri Lal(1).
This appeal is directed against that decision.
The Act was intended as a temporary measure as could be gathered from its title as well as the preamble.
It is deemed to have come into force on the 1st day of October 1946 though it was passed in 1947.
Under the Act as originally stood, the decision of the District Magistrate under section 3 was neither appealable nor revisable.
As per the amendments effected in 1952 a Limited power of revision was conferred on the Commissioner.
By the Amending Act 17 of 1954, the power conferred on the Commissioner was enlarged and section 7(F) was incorporated in the Act which says that: "the State Government may call for the records of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in section 3 . . and make such order as appears to it necessary for the ends of justice.
" The only sections in the Act material for the purpose of this appeal are sections 3 and 7(F).
Section 3 reads thus.
: "Restrictions on evictions.
Subject to any order passed under sub section ( 3 ), no suit shall: without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (1) (1965) 1 A11.
300 (a) that the tenant is in arrears of rent for more than three months and has ,failed to pay the same to the landlord within one month of the service upon him of a notice of demand; (b) the at the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation; (c) that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion the court, has materially altered the accommodation or is likely substantially to diminish its value; (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlord 's interest therein; (e) that the tenant has on or after the 1st day of October, 1946, sub let the whole or any portion of the accommodation without the permission of the landlord; (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the accommodation as a part of his contract of employment under the landlord and his employment has been determined.
Explanation.
For the purposes of sub section (e) lodging a person in a hotel or a lodging house shall not be deemed to be sub letting.
(2) Where any application h:as been made to the District Magistrate/or permission to sue a tenant for eviction from any accommodation and the District Magistrate grants or refuses the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him, apply to the Commissioner to revise the order.
(3) The Commissioner shall hear the application made under sub section (2), as far as may be, 301 within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or revise his order, or make such other order as may be just and proper.
(4) The order of the Commissioner under subsection (3) shall, subject to any order passed. ' by the State Government under section 7 (F) be We have earlier quoted the relevant portion of section 7 (F).
Conflicting opinions were expressed by different Benches of the Allahabad High Court as to the scope of section 3, till the decision of the Full Bench in Bashi Ram 's case(x).
The Full Bench held that a decree obtained in a suit for eviction instituted after obtaining the requisite permission will not become unenforceable even if the State Government revoked, after the decree is passed, the permission granted, in exercise of its powers under section 7(F).
Majority of the Judges in that case further held that once a suit is instituted after obtaining the permission of the District Magistrate, any further order made either by the Commissioner or the State Government cannot affect the course of that suit or the decree passed therein.
Dwivedi J. the other Judge did not express any opinion on that question but even according to him in the appeal filed against the decree, the appellate court cannot receive in evidence the order made by the State Government which means that the decree cannot be reversed on the ground that the State Government had revoked the permission granted.
The correctness of the Full Bench decision is challenged by the appellant in this appeal.
In support of his interpretation of sections 3 and 7(F) he placed reliance on the decision of a Division Bench of the High Court of Allahabad in Dr. S.L. Khoparji vs State Government(a).
He also sought support from the decision of a Single Judge of that Court in Basant Lal Sah vs Bhagwan Prasad Sah(3).
It is not necessary to refer to the various decisions of the Allahabad High Court on this question.
Suffice it to say that in that Court there was serious cleavage of opinion on the question that we are considering in this appeal till the decision of the Full Bench in Bashi Ram 's case(x).
We were given to understand that Dhavan, j. had doubted the correctness of the decision of the Full Bench and had requested the Chief Justice to constitute a larger Bench to consider the correctness of the decision in Bashi Ram 's case(1) but in view of the pendency of this appeal, the constitution of a larger bench was not considered necessary.
(1) (1965) 1 All.
(3) A.I.R. 1964 All p. 210.
(2) 302 The contention of Mr. Goyal, the learned Counsel for the appellant was that the Act generally speaking, ' has restricted the right of the landlord to evict his tenant, to one or other of the grounds mentioned in cls.
(a) to.
(g) of section 3(1 ); but in order to meet any exceptional case, it is provided in section 3 (1 ) that a suit for eviction may be instituted on any ground other than those mentioned in cls.
(a) to (g) if the permission of the District Magistrate is obtained; the order made by the District Magistrate is revisable both by the Commissioner as well as the State Government; the only order that is final is that made by the State Government.
If a landlord chooses to institute a suit on the basis of the permission granted by the District Magistrate or the Commissioner without waiting for the decision of the State Government he takes the risk; if the State Government revokes the permission granted by the District Magistrate or the Commissioner then the suit must be deemed to have been instituted without permission and consequently not maintainable.
Mr. Goyal urged that if the decision in Bashi Ram 's case(1) is accepted as correct then so far as the tenant is concerned, generally speaking, he cannot invoke the powers of the State Government under section 7(F) because immediately after the decision of the Commissioner, if the same is in his favour, the landlord is likely to institute a suit for eviction and thus nullify the power of the State Government under section 7(F).
He urged that as section 7(F) empowers the State Government to revise the order made by the subordinate authorities whether the same is in favour of the landlord or the tenant we should not place an interpretation on section 3 which would affect the power of the State Government to do justice to the tenants for whose benefit the Act has been enacted.
On the other hand it was urged by Mr. C.B. Aggarwal, learned Counsel for the respondent that the landlord has a right to sue for the eviction of his tenant under the provision of the Transfer of Property Act subject to the restrictions stipulated therein.
That is a statutory right.
The provisions contained in the Act to the extent they encroach upon the rights of the landlord either specifically or by necessary implication further control the rights of the landlord.
In other respects the landlord 's rights under the Transfer of Property Act remain unaffected.
According to him the only restriction placed on the landlord in the matter of instituting a suit for eviction on grounds other than those mentioned in cls.
(a) to (g) of section 3(1) is to obtain the prior permission of the District Magistrate subject to the order made under sub section
(3) of section 3 by the Commissioner; once a suit is validly instituted in accordance with those provisions, no order of the State Government can either interfere with the course of that suit or invalidate the decree obtained therein.
He urged that if the position is as (1) 1965) 1 Ali.
545 303 contended by the.
learned Counsel for the appellant, curious results are likely to follow.
Section 7 (F) does not fix any period within which the State Government must act.
It can exercise its power under that provision at any time it pleases may be after 10 years or 20 years; the power conferred on the State Government is extremely wide as observed by this Court in Shri Bhagwan and anr.
vs Ram Chand and anr.(1).
Therefore it can revoke the permission granted after the decree for eviction is confirmed by the High Court or even the Supreme Court and thus make a mockery of the judicial process; this could not have been the intention of the legislature.
According to Mr. Aggarwal from the very scheme of the Act and from the very nature of the power conferred on the State Government, it cannot be exercised after a suit is instituted after complying with the requirements of subs.
(1 ) of section 3.
His further contention was that on a proper construction of sub section
( 1 ) of section 3, it would be seen that the suit instituted after obtaining the required permission being a validly instituted suit, its progress cannot be interrupted; the permission required under section 3 (1 ) is the permission of the District Magistrate subject to any order under section 3(3) by the Commissioner; in other words the permission given by the District Magistrate is not final till affirmed by the Commissioner; till then it remains tentative; once the Commissioner affirms the same or grants the permission asked for it becomes final and thus amounts to a valid permission to sue; hence a suit filed on the basis of that permission is a validly instituted suit unless the permission granted was revoke by the State Government before the institution of the suit.
Proceeding further he stated that it is true that the order of the Commissioner though final yet it is subject to any order that may be passed by the State Government; but section 3 (1 ), the provision dealing with the permission to file a suit for eviction does not refer to the order under section 7(F); it only speaks of the permission granted by the District Magistrate subject to the order of the Commissioner and not further subject to any orders made by the State Government.
In this connection he invited our attention to the fact that as against the order passed by the District Magistrate under subs.
( 1 ) of section 3, a revision petition can be filed before the Commissioner within 30 days of that order and not thereafter.
The Commissioner has not even the power to condone the delay in filing the revision petition.
Further under subs.
(3) of section 3, the Commissioner is required to hear the application made under sub section
(2) of section 3, as far as may be, within six week from the date of making it.
All these provisions indicate that the legislature was of the opinion that the proceedings under section 3 should be carded_on expeditiously and the decision of the Commissioner should be considered as final.
According to Mr. Aggarwal the question of granting or refusing to grant the permission under s, 3 are primarily to be (1) [1965] 3 S.C.R.218, 304 dealt with only by the District Magistrate and the Commissioner.
They are the only tribunals in the hierarchy of the tribunals constituted for that purpose.
The power given to the Government under section 7(F) is merely a supervisory power.
That is why no limitation is imposed on the exercise of that power either in the matter of time within which it should be exercised or the circumstances under which it can be exercised.
Such a power according to him is a reserve power and therefore has to be exercised before the court 's jurisdiction is invoked, He particularly laid emphasis on the fact that sub section
(1) of section 3, the compliance of which is necessary before validly instituting the suit does not at all refer to an order under section 7(F).
After examining the provisions of this Act, we are constrained to observe that the drafting of this Act leaves considerable room for improvement despite the fact that it was amended twice over.
Though it was intended to be a temporary measure when it was originally enacted it has now reminded in the statute book for over 20 years and there is no knowing how long the same will continue to be in force.
Therefore it is but appropriate that the provisions of this Act should be clear and unambiguous.
From sub section
(1 ) of section 3 it is not possible to find out the contents of the powers of the District Magistrate.
No guide lines are laid down therein to regulate the exercise of the powers of the District Magistrate.
It is not possible to find out from that provision under what circumstances the District Magistrate can grant the permission asked for and under what circumstances he can refuse the same.
It is likely that different District Magistrates are exercising that power in different ways.
One consideration may appeal to one District Magistrate and a totally different consideration may influence another District Magistrate.
It would have been appropriate if the legislature had defined the scope of the powers of the District Magistrate or at least laid down certain guide lines for regulating his discretion.
Sub section
(3 ) of section 3 says that if the Commissioner is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate, he may alter or reverse the order of the District Magistrate or make such other order as may be just and proper.
It is not possible to find out on what basis the Commissioner can determine the correctness, legality or propriety of the order made by the District Magistrate.
As seen earlier, no restrictions are placed on the powers of the District Magistrate in granting or refusing to grant the permission asked for under section 3 (1 ).
Therefore the only thing the Commissioner can do is to exercise his discretion in preference to the discretion exercised by the District Magistrate.
Now coming to the power conferred on the State Government under section 7 (F), it would be seen that it is a power of wide amplitude.
It can be exercised by it in any way it pleases.
No restriction either as to the time 305 within which it can be exercised or as to the circumstances under which it can be exercised is placed on the State Government.
Under these circumstances the anomalies pointed out by Mr.Goyal as well as by Mr. Agarwal are inevitable.
Therefore in construing this Act, no useful purpose will be served by taking into consideration the hardship to the parties.
In whatever way we may construe sections 3 and 7(F) hardship to one party or the other is inevitable.
Neither Counsel suggested to us any interpretation which could steer clear of the anomalies pointed out at the bar.
Therefore we have to fall back on the grammatical construction of sub section
(1 ) of section 3 and leave out of consideration all other rules of construction for finding out the intention of the legislature.
Section 3(1) does not.
restrict the landlord 's right to evict his tenant on any of the grounds mentioned in cls.
(a ) to (g) of that sub section.
But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub section
(3) of section 3 by the Commissioner.
These are the only restrictions placed on the power of a landlord to institute a suit for eviction of his tenant.
If a landlord files a suit for the eviction of his tenant without obtaining the permission of the District Magistrate that suit is not maintainable but if he files a suit after obtaining the permission of the District Magistrate and if the Commissioner revokes the permission granted by the District Magistrate in a properly instituted application under section 3(2) then the suit instituted by him will be considered as having been filed without the permission of the District Magistrate because section 3 (1 ) in specific terms says that the permission given by the District Magistrate is subject to any order passed under sub section
In other words the permission given by the District Magistrate does not acquire any finality until either the period fixed for filing an application under sub section (2) of section 3 expires and no application under that section was filed within that time or if an application had been filed within that time, the same had been disposed of by the Commissioner.
The permission to file a suit for eviction assumes finality under section 3 (1 ) once the Commissioner decides the revision petition pending before him.
In fact sub section
(4) of section 3 says that the order of the Commissioner is final.
It is true that that order despite the fact that it is final is subject to any order passed by the State Government under section 7(F).
There is no provision in the Act providing that a suit validly instituted after getting the required permission under section 3 (1 ) ceases to be maintainable because of any order made by the State Government under section 7(F).
Similarly there is no provision in the Act invalidating a decree passed after the Act came into force in a validly instituted suit.
Section 14 provides : 306 "no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant be executed against him 'as long as this Act remains in force except on any of the grounds mentioned in section 3: Provided that the tenant agrees to pay to the landlord "reasonable annual rent" or the rent payable by him before the passing of the decree whichever is higher ." This provision applies only to decrees passed before the date of the commencement of the Act.
A decree of a Court in a suit validly instituted is binding on the parties to.
the same.
It is true that the finality or the force of a decree can be taken away by a statute, but the Court will not readily infer that a decree passed by a competent Court has become unenforceable unless it is showy that a provision of law has specifically or by necessary implication made that decree unenforceable.
No such provision was brought to our notice.
On an examination o/the relevant provisions of the Act our conclusion is that when the Commissioner sets aside the order passed by the District Magistrate granting permission to file a suit for ejecting a tenant, the order of the Commissioner prevails.
If he cancels the permission granted by the District Magistrate there is no effective permission left and the suit instituted by the plaintiff without awaiting his decision must be treated as one filed without any valid permission by the District Magistrate.
To this extent we are in agreement with the decision of Upadhyaya, J. in Munshi Lal and anr.
vs Shambhu Nath Ram Kishan(1).
From this it follows that the Full Bench decision in Bashi Ram 's case(2) to the extent it held that a suit filed by the landlord after obtaining the permission of the District Magistrate cannot become infructuous even if the Commissioner revokes the permission, is incorrect.
But we agree with the Full Bench that a suit validly instituted after obtaining a permission as required by section 3 (1 ) does not cease to be maintainable even if the State Government revokes after the institution of the suit, the permission granted.
If the State Government revokes the permission granted before the institution of the suit then there would be no valid permission to sue.
In other words the State Government 's power to revoke the permission granted under section 3(1) gets exhausted once the suit is validly instituted.
For the reasons mentioned above, this appeal fails and the same is dismissed.
But in the circumstances of the case, we make no order as to costs.
R.K.P.S. Appeal dismissed.

summary/full:
The appellant was a tenant of the respondent in respect of a shop in Agra, Uttar Pradesh.
The respondent applied to the District Magistrate under section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 for permission to institute a suit against the appellant for evicting him from the shop.
The application was rejected by the District Magistrate, but the Commissioner, by order under section 3(3 ), granted the permission.
The appellant thereupon moved the State Government under section, 7(F) of the Act, but it was only after the respondent had flied a suit and ,obtained a decree that the State Government passed an order revoking the permission granted by the Commissioner.
The first Appellate Court, in view of the order under 7(F) act aside the decree of the trial Court.
However in second appeal the High Court, relying upon a Full Bench decision of that Court in Bashi Ram vs Mantri Lal (1965) 1 All 545, decided in favour of the respondent.
In appeal before this Court by.
special leave, the question for consideration was whether a decree for eviction obtained in a suit instituted after obtaining the permission of the Commissioner under section 3(3) of the Act becomes unenforceable if the State Government acting under section 7(F) of the Act revokes the permission granted by the Commissioner after the decree is passed.
HELD: The order of the District Magistrate is by section 3(1) specifically made subject to the order of the Commissioner in revision under section 3(3 ), but the Commissioner 's order according to section 3 (4 ) is final though subject to the order of the State Government under section 7(F).
There is no provision in the Act providing that a suit validly instituted after getting the required permission under section 3 (1 ) ceases to be maintainable because of any order made by the State Government under section 7(F).
[305 G H] Similarly there is no provision in the Act invalidating a decree passed after the Act came into force in a validly instituted suit.
The finality or the force of a decree can be taken away by a statute, .but the Court will not readily infer that a decree passed by a competent Court has become unenforceable unless it is shown that a provision of law has specifically or by necessary implication made that decree unenforceable.
[305 H 306 C D] On an examination of the relevant provisions of the Act the conclusion must be that when the Commissioner sets aside the order passed by the District Magistrate granting permission to file a suit for ejecting a tenant, the order of the Commissioner prevails.
If he cancels the permission granted by the District Magistrate, there is no effective permission left and the suit instituted by.
the plaintiff without awaiting his decision must be treated as one filed without any valid permission by the District Magistrate.
To this extent the decision in Munshi Lal and ant.
Shambhu Nath Ramkishan, was correct.
[305 D F] Sup.
C1/69 2 298 It follows that the Full Bench decision in Bashi Ram 's case to the extent it held that a suit filed by the landlord after obtaining the permission of the District Magistrate cannot become infructuous even if the Commissioner revokes the permission, was incorrect.
[306 F] Bashi Ram 's case was however correctly decided in so far as it held that a suit validly instituted after obtaining a permission as required by section 3(1) does not cease to be maintainable even if the State Government revokes, after the institution of the suit, the permission granted.
if the State Government revokes the permission granted before the institution of the suit, then there would be no valid permission to sue.
In other words the State Government 's power to revoke the permission granted under section 3(1) gets exhausted once the suit is validity instituted.
[306 G] Bashi Ram vs Mantri Lal, (1965) 1, All. 545 and Munshi Lal and ant.
vs Shambhu Nath Ram Kishan, (1958) A.L.J., p. 584; considered.
Dr. S.L. Khoparji vs State Government, (1958) A.LJ., p. 724; Basant Lal Sah vs Bhagwan Prasad Sah, A.I.R. 1964 All.
p. 210 and Shri Bhagwan and ant.
vs Ram Chand and anr.
; , ; referred


judgement:
Criminal Appeal No. 130 of 1966.
Appeal by special leave from the judgment and order dated April 24, 1985 of the Madhya Pradesh High Court, Gwalior Bench in Criminal Appeal No. 55 of 1964.
290 R.L. Kohli, for the appellant.
I. N. Shroff for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by Special Leave from the judgment and order of the Madhya Pradesh High Court, Gwalior Bench on April 24, 1965 in Criminal Appeal No. 55 of 1964.
The said appeal was heard and disposed of along with two other appeals Nos. 44 and 45 of 1964.
The appellant before us, Harnath Singh, was the appellant in Appeal No. 55 of 1964 while Narayan Singh and Chhotelal were the appellants in the other two appeals.
Narayan Singh and Harnath Singh were, convicted by the Additional Sessions Judge, Morena, under section 395 of the Indian Penal Code while Chhotelal was convicted in the same trial under section 395 read with section 75 of the Indian Penal Code.
The prosecution case was as follows.
There was a dacoity at the house of one Dhudilal in village Chhota Kheda on the night of December 10, 1962 in which the inmates of the house were beaten and property, to wit, Rs. 350 in currency notes, some silver ornaments etc., belonging to one Raghunath were taken away by the dacoits from the said house.
Ramkumar (P.W. 1 ) raised an alarm which brought the neighbours on the scene and one of the dacoits, Chhotelal, was caught on the spot and handed over to the police.
The first information report was lodged by Dhudilal at about 9 a.m. on the following morning.
During investigation Rs. 335 in currency notes besides some silver articles and small change were found on the person of Chhotelal.
Some articles were also produced by Narayan Singh on December 12, 1962.
On the same day, on a personal search of the appellant Harnath Singh, four George V silver rupee coins, one Victoria silver rupee coin, one silver half rupee coin and one old square coin with vermillion on them were found and seized.
On December 25, 1962 there were test identification parades of the accused and all the appellants were identified by some of the eye witnesses The appellant, Harnath Singh, was identified by Ramkumar (P.W. 1), Panabai (P.W. 13) and Hari Shankar (P.W. 15).
The articles seized from the accused were also identified.
Chhotelal admitted his presence in the village of the night of the incident and the seizure of Rs. 335 from his person but claimed them as his own.
He denied the seizure of the other articles from his possession.
Narayan Singh denied the recovery of any articles from his house while the appellant Harnath Singh, admitted the seizure of the five rupee coins and the square coin from his person but claimed them as his own.
The Sessions Judge found all the accused guilty and sentenced them as stated.
291 So far as the appellant Harnath Singh is concerned, the High Court held that he had been "identified as one of the dacoits by Ramkumar (P.W. 1), Panabai (P.W. 13) and Hari Shankar (P.W. 15)" and they had also "identified him earlier in a test identification parade.
" Discussing the question as to whether the evidence with regard to the test identification parade was admissible in view of the fact that it was conducted by a Magistrate of the Third Class who was not empowered to record statements under section 164 of the Criminal procedure Code, the High Court was of the view that "the test identification parade . cannot be disregarded as of no value under the circumstances of the case.
" The High Court then went on to consider the evidence against the appellant as to his being concerned in the dacoity.
It relied the testimony of Ramkumar, P.W. 1, that the appellant was standing near his sister, Tulsabai and had a Gajkundi and was firing crackers.
Ramkumar had also given a description of the appellant to the police and stated in his evidence that he was able to identify him from his facial features.
Panabai, another of the identifying witnesses, had stated that the appellant was wearing a black coat and was flashing a torch.
The third identifying witness, Hari Shankar, could give no special reason for identifying the appellant but stated that he was standing near his aunt, Tulsabai.
All these witnesses stated that they had identified the appellant in the identification parade.
Tulsabai did not identify the appellant but had stated that the person standing near her had a black coat on.
The High Court held on the evidence that there was no sufficient reason to discard the testimony of these persons on the point of their identifying the appellant as one of the dacoits although there were some minor discrepancies in their statements.
The High Court also found that the evidence of the witnesses was amply corroborated from other evidence on record.
One of the circumstances which corroborated the testimony of the witnesses, according to the High Court, was the unexplained possession of the appellant of some of the articles taken away by the dacoits from the scene after the incident.
In the first information report there had been specific mention of the loss of four George V rupee coins, one Victoria rupee coin and a gilt half rupee piece.
These correspond with the recovery from the appellant along with one square coin probably of brass all bearing marks of vermillion.
This mark was explained by Raghunath, the claimant of the coins as having been used in the Diwali pooja.
The High Court did not accept the appellants version of his having carried them on his person because they used to be worshipped by his father and grand father.
The High Court held that the 292 presence of the square piece in his possession showed his complicity in the offence.
According to Raghunath this coin was kept separately from the other coins but all bore vermillion mark because of their use in the pooja.
The second circumstance incriminating the appellant as found by the High Court was his unexplained absence from duty in the Chambal Canal Project from December 9, 1962.
While the appellant admitted his absence from duty he tried to account for it by saying that he was ill but offered no independent witness to establish his statement.
Accordingly, the High Court found itself unable to disturb the conviction of the appellant under section 395 and dismissed the appeal.
Before us learned counsel for the appellant contended that the conviction of the appellant could not stand in view of the reliance of the High Court on the record of the test identification parade.
In our opinion, the learned Judges of the High Court did not affirm the conviction relying merely or mainly on the said report.
The elaborate discussion on this point appears to have been prompted by the two judgments in Appeal No. 218/1963 and Appeal No. 35/1964 of the same High Court on which reliance was placed by counsel for the accused.
As noted already, the view of the High Court was that the test identification parade could not be discarded as of no value in the circumstances of the case.
It was only after recording the said view that the High Court proceeded to consider the evidence of the witnesses and the circumstances which corroborated their testimony.
These were only two as discussed above.
It appears therefore that although the High Court did not reject the testimony of the Naib Tehsildar, Dinkar Rao who presided at the parade, it really upheld the conviction of the appellant on other evidence on the record.
Relying principally on the judgment of the Judicial Committee of the Privy Council in Nazir Ahmad vs King Emperor(1) and to certain observations of this Court in Ramkrishan Mithanlal Sharma vs The State of Bombay(2) counsel for the appellant attacked the identification proceedings as being without jurisdiction and as such inadmissible in evidence.
It was further argued that if the High Court had rejected the said evidence, it would not have maintained the conviction of the appellant.
In order to appreciate the foundation for this argument, it is necessary to take a brief note of the reason for holding identification proceedings and the scope thereof.
During the investigation of a crime the police has to hold identification parades for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to identify the persons who are concerned therein.
They have thus a two fold object: first, to satisfy the investigating (1) A.I.R. 1936 P.C. 253.
(2) ; 293 authorities that a certain person not previously known to the witnesses was involved in the commission of the crime or a particular property was the subject of the Crime.
It is also designed to furnish evidence to corroborate the testimony which the witness concerned tenders before the court.
The process of identification proceedings and the legal basis of evidence adduced thereat were considered ' by this Court in Ramkrishan Mithanlal Sharma vs The State of Bombay(1).
It was there said (at p. 920): ". it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the persons identified were concerned in the offence.
This statement may be express or implied.
The identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in 'answer to a question address to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified.
was the subject matter of the offence or the person identified was concerned in the offence.
All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. .The distinction. between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers. .The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification . ." On the above logic the Court pointed out that identifications by a police officer would be hit by section 162 of the Code of Criminal Procedure.
It being hardly practicable to have identification proceedings conducted by private citizens they are as a rule held by Magistrates at the request of the investigating police 'authorities.
Usually the record of the proceedings is made on certain forms and one such, exhibit P 1, was used in this case.
This form contains 9 columns, the first being for the serial number, the second for the names of the witnesses who identified the accused, the third for names of the accused who are to be identified, ' the fourth for the number of persons who were mixed in the identification parade, the fifth being headed "correctly identified"; the sixth reading "wrongly identified", the seventh for "statement of the witnesses (1) ; 294 about identification", the eighth for the signature of the identifying witnesses and the ninth and last being for remarks.
The note at the end of the form shows how the parade was conducted, where it was held, how many persons were mixed up with the accused in the case, what precautions were taken so that the witnesses could not see the steps being taken for mixing the accused persons etc.
The last sentence of the form reads: "From their gestures it appeared that the witnesses had correctly identified the accused persons.
" In Nazir Ahmad 's case(1), the appellant .was convicted mainly, if not entirely, on the strength of a corffession said to have been made by the appellant to a Magistrate who was examined at the trial.
The Magistrate however did not record the confession under section 164 of the Criminal Procedure Code which provides that a Magistrate of the class therein mentioned may record any statement or confession made to him in the course of an investigation in the manner prescribed and after complying with the formalities therein laid down.
The Judicial Committee found that though the Magistrate was manifestly acting under Part V of the Criminal Procedure Code, he neither purported 'to follow nor in fact followed the procedure of sections 164 and 364 of the Code.
To quote the words of the judgment to show absence of non 'compliance with secs.
164 and 364 of the.
Criminal Procedure Code: ". there was no record in existence at the material time (at the time the alleged confession was made), there was nothing to be shown or to be read to the accused, and nothing he could sign or refuse to sign.
" The Magistrate gave no explanation as to why he adopted this procedure.
It was argued on behalf of the appellant that by necessary implication in the Code of Criminal Procedure the Magistrate must either proceed under section 164 of the Code or not at all.
Considering the position of the accused persons and the position of the magistracy, the Judicial Committee observed that it was most undesirable that Magistrates and Judges should be in the position of witness insofar it could be avoided.
According to the Judicial Committee: ". it would be particularly unfortunate if Magistrate were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be 'at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under section 164.
In the result they would indeed be relegated to the ,position of ordinary citizens as witnesses and then would be.
(1) A.I.R. 1936 P.C. 253.
295 required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever," In the result it was held that the Code of Criminal procedure did not sanction any departure from the mode in which the confeSsions were to be dealt with by.
the Magistrates when made during an investigation.
This decision of the Judicial Committee was considered by this Court in Deep Chand vs The State of Rajasthan(1) and the ' above observations were adopted In this case, one Suraj Bhan had been abducted by certain persons and according to the prosecution case he was taken first to the house of Deep Chand and kept blind folded and confined in a small room for 17 days.
During this period after temporary removal of the bandage over his eyes he was made to write letters to his father asking for moneys to be paid for releasing him.
He was thereafter removed to the house of one Lachman.
As regards the identification of Deep Chand 's house, the High Court accepted the evidence of Suraj Bhan that he had been able to note certain features of it through a chink in the wall of his room.
Suraj Bhan 's evidence was corroborated by the evidence of one Devi Singh, a Magistrate who had taken Suraj Bhan along with him to the house of Deep Chand.
The Magistrate had inspected the house and got a plan prepared under his supervision and recorded a memorandum in which his observations and the statements made by Suraj Bhan were noted down.
The Magistrate gave evidence at the trial describing the building of Deep Chand and proved the memorandum prepared by him.
Objection was taken by the appellant to the verification proceedings conducted by the Magistrate on the strength of Nazir Ahmad 's case(9) and it was argued that the High Court had gone wrong in acting upon the memorandum are the Magistrate.
It was pointed out by this Court prep by . that the decision in Nazir Ahmad 's case(a) did not preclude a Magistrate from deposing to relevant facts if no statute precluded him from doing so either expressly or impliedly.
It was also said that neither the evidence Act nor the code of Criminal procedure prohibited a Magistrate from deposing to relevant facts within the meaning of section 9 of the.
Evidence Act.
Reference was made by this Court to the observation in Amiruddin Ahmad vs Emperor(a) in relation to identification proceedings that "the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted.
" In that case, the High Court had further observed that the verifying Magistrate should not be permitted to speak to statements said to have been made to.
him in the course of the proceedings.
The High Court observed that (1) (1962) 1 S.C.R.662 (2) A.I.R. 1936 P.C. 253.
(3) I.L.R. 45 Calcutta 557.
296 "additional statements being statements made in the course of an investigation, when not recorded in the manner provided in section 164 of the Code of Criminal Procedure. are inadmissible.
" According to this Court, the above decision was "an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence, though he could not speak to statements made by the accused or a witness recorded by him in contravention of section 164 of the Code of Criminal Procedure.
" Deep Chand 's case(1) goes to show that a Magistrate when called upon in a case like this to conduct verification proceedings should confine his attention only to the steps to be taken to ensure that the witnesses were able to identify certain persons alleged to have been concerned in the commission of the crime or to identify certain things which were said to be the subject matter thereof.
The Code of Criminal Procedure does not sanction his transgression of this limit and recording of other statements which may have a bearing in establishing the guilt of the accused except in accordance with section 164 of the Code.
In this case the Magistrate gave evidence to the effect that he was a Naib Tehsildar at Sirpur on 26th December 1962 on which date he had executed the proceedings of identification parade of the three accused including the appellant.
He also stated that he had the power of a Third Class Magistrate.
After stating how the parade was conducted he recorded statements in support of the identification of the three accused by different persons.
He also surported to give evidence of what the witnesses had said after identifying a particular accused.
Learned counsel for the appellant contended that as he had purported to record statements made in the course of investigation, the entire evidence of the Magistrate including the record of the identification proceedings became inadmissible because he was a Third Class Magistrate not empowered to proceed under section 164 Cr.
P.C. We find ourselves unable to accept this argument.
The Magistrate was called upon only to conduct the identification proceedings.
He was not required to record any confession or to interrogate witnesses to elicit any other facts or call upon them to make any statement beyond mere identification.
The statements in column 7 would therefore be inadmissible in evidence.
This would not however be applicable to the record under column 5.
The High Court did not refer to the statements in column 7 at all.
It would therefore be clear that the judgment does not suffer from the infirmity complained of and the appeal must fail.
It is therefore dismissed.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant who was suspected of having taken part in a dacoity was put .up 'for identification by the witnesses in a test identification parade which was conducted by a Magistrate of the Third Class.
The Magistrate noted in Co1.
5 of the prescribed form the fact of identification by a witness, in Co1. 7 he recorded further statements made by the witness after he had purported to identify the accused.
Later the appellant was tried for the offence under section 395 at the Indian Penal Code, and convicted.
His appeal to the High Court failed.
In this Court it was urged on behalf of the appellant that the record of the test identification parade was inadmissible in evidence as the statements the rein were recorded by a Magistrate of the Third Class who was not empowered under section 164 of the Code of Criminal Procedure to record such statements.
HELD: A Magistrate when called upon to conduct verification proceedings should confine his attention only to the steps to he taken to ensure that the witnesses were able to identify certain persons alleged to have been concerned in the commission at the crime or to identify certain things which were said to be the subject matter thereof.
The Code of Criminal Procedure does not sanction his transgression of this limit and recording at other statements which may have a bearing in establishing the guilt of the accused except in accordance with section 164 of the Code.
[296 C D] In the present case the Magistrate was called upon only to conduct the ' identification proceedings.
He was not required to record any confession or to interrogate witnesses to elicit any other facts or call upon them to make any statement beyond mere identification.
The statements in Co1. 7 would therefore be inadmissible in evidence.
This would however not be applicable to the record under Col. 5 [296 G] As the High Court had not taken into consideration the statements in Col. 7 its judgment could not be said to suffer 'from the infirmity of having relied on inadmissible evidence.
[296 H] Deep Chand vs State of Rajasthan, ; , applied.
Nazir Ahmad vs King Emperor, A.I.R. 1936 P.C. 253 and Ramkrishan Mithanlal Sharma vs State o/Bombay; , , referred to.


judgement:
ivil Appeal No. 1049 of 1965.
Appeal from the judgment and order dated July 31, 1964 of the Gujarat High Court in Special Civil Application No. 1054 of 1963.
Soli Sorabjee, D.M. Damodar, B. Datta and J.B. Dadachanji, for the appellant.
V. A. Seyid Muhammad and S.P. Nayar, for the respondents.
P.R. Mridul, Janendra Lal and B.R. Agarwala, for intervener No. 1.
J.B. Dadachanji, for interveners Nos. 2 and 3.
Ramaswam, J.
This appeal is brought by certificate from the judgment of the High Court of Gujarat, dated July 31, 1964 in Special Civil Application No. 1054 of 1963.
The appellant is the sole proprietor of Messrs Gordhandas and Co. carrying on business as a dealer in textiles in Bombay.
Under an agreement between the appellant on the one hand and the Gandevi Vanat Udhoog Sahkari Mandli Ltd. (hereinafter referred to as the 'Society ') the Society manufactured cotton fabrics during the period between June, 1959 and September 1959 and from October 1, 1959 to January 31, 1961 for the appellant on certain terms and conditions which were later reduced to writing on October 12, 1959.
Under these terms, the Society agreed to carry out weaving work on behalf of the appellant on payment of weaving charges fixed at 19 nP. per yard which included expenses the Society would have to incur in transporting yarn from Bombay and cotton fabrics woven by the Society to Bombay.
The appellant was to supply yarn to be delivered at Bombay to the Society and the Society was to made its own arrangement to bring the yarn to its factory at Gandevi.
Clause 11 provided that the yarn supplied by the appellant, remaining either in stock or in process or in the form of ready made pieces would be in the absolute ownership of the appellant and the Society, as the bailee of the yarn, undertook to 255 take such care of it as it would normally take if the yarn belonged to it.
The Society also undertook to have the yam insured against fire, theft and all other risks including transit risks and further undertook to reimburse the appellant in case it failed to do so.
The terms of the agreement though recorded on October 12, 1959 were to be deemed to be effective as from April 21, 1959 and the agreement was terminable by either party by giving one month 's notice.
The Society was a cooperative society carrying on its work at Gandevi and was registered on or before May 31, 1961 and consisted of members who owned powerlooms.
The Society started the weaving work for the appellant some time in May or June 1959 and supplied to the appellant between June 1, 1959 and January 3, 1961 cotton fabrics measuring 3,19,460 yards.
The Society had obtained L 4 licence as required by the (hereinafter referred to as the 'Act ').
By letters, dated August 29, 1959 and October 27, 1961 the Excise Department had granted exemption from excise duty payable on cotton fabrics manufactured by the Society under the notification issued by the Central Government.
On November 10, 1961 the excise authorities issued a notice.
the appellant demanding a sum of Rs. 1,69,263.44 payable as excise duty.
It was alleged that the duty was.
payable by the appellant as it had got the goods manufactured through the Society and had got them removed from the Society 's factory at Gandevi without payment of duty.
On January 10, 1962 the Superintendent of Central Excise:, Bulsar sent another notice to show cause why penalty should not be imposed upon the appellant for contravention of rule 9 and why duty should not be charged for the cotton fabrics so removed by the appellant.
The appellant showed cause and on November 26, 1962 the Assistant Collector of Central Excise and Customs, Surat held that the appellant was liable to pay excise duty to.
the extent of Rs. 2,20,574.74, being the total amount of basic duty and a penalty of Rs. 250 was levied for contravention of rule 9.
The appellant preferred an appeal to the Collector of Central Excise Baroda but the appeal was dismissed.
Thereafter the appellant moved the High Court of Gujarat for grant of a writ under article 226 of the Constitution.
The High Court dismissed the writ petition by its judgment, dated July 31, 1964 but gave a direction that the: respondent was to work out the excise duty on the footing that the appellant was entitled to exemption from duty altogether in respect of goods supplied for the period from June 1, 1959 to September 30, 1959.
As regards the two other periods i,e., October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 31, 1961, the High Court dismissed the writ petition and directed the respondent to charge duty at the rate of 29.3 nP per square meter.
256 Clause (d) of section 2 of the Act defines "excisable goods" as meaning goods specified in the First Schedule as being subject to a duty of excise.
Item 19 in the First Schedule provides for excise duty at different rates depending upon the variety of cotton fabrics.
Section 3 which is the charging section, provides for the levy.
and collection of duties specified in the First Schedule on all excisable goods which are produced or manufactured in India.
Rule 8 authorises the Central Government to exempt any excisable goods from the whole or any part of duty payable on such goods.
Clause (1) of rule 9 provides that no excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed.
Clause (2) of that rule provides that if any excisable goods are, in contravention of sub rule (1 ), deposited in, or removed from any place specified therein, the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer and shall also be liable to a penalty which may extend to two thousand rupees and such goods shall be liable to confiscation.
In pursuance of the power under rule 8, the Central Government issued notifications from time to time granting exemptions on cotton fabrics, though such goods were excisable goods under tariff item 19.
The first relevant notification is dated January 5, 1957.
By this notification certain classes of cotton fabrics were exempt from payment of excise duty.
of the items exempted the seventh item is as follows: "Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants) in which less than 5 powerlooms in all are installed;" The next relevant notification is notification No. 74/59, dated July 31, 1959 which reads.
as follows: "G.S.R. 899 In pursuance of sub rule (1) of rule 8 of the Central Excise Rules, 1944, as in force in India and as applied to the State of Pondicherry, ' the Central Government hereby exempted cotton fabrics produced by any cooperative society formed of owners of cotton powerlooms, which is registered or which may be registered on or before the 31st March, 1961 under any law relating to co operative societies from the whole of the duty leviable thereon, subject to the following conditions : 257 (a) that every member of the co operative society has been exempt from excise duty for three years immediately preceding the date of his joining such society; (b) that the total number of cotton powerlooms owned by the co. operative society is not more than four times the number of members forming such society; (c) that a certificate is produced by each member of the co operative society from the State Government concerned or such officer as may be nominated by the State Government that he is a bona fide member of the society and that the number of cotton powerlooms in his ownership and actually operated by him does not exceed four and did not exceed four at any time during the three years immediately preceding the date of his joining the society, and that he would have been exempt from excise duty even if he had not joined the co operative society;. . .
The Central Government issued another notification, dated April 30, 1960 by which the earlier notification, dated July 31, 1959 was superseded.
By this notification the Central Government exempted cotton fabrics produced on power looms owned by any co operative society or owned by or allotted to the members of the society from the whole of the duty leviable thereon subject .to the four conditions.
therein set out.
The notification,dated April 30, 1960 is to the following effect: "In pursuance of sub rule (1 ) of rule 8 of the Central.
Excise Rules, 1944, as in force in India and as applied to the State of Pondicherry, and in supersession of the Notification of the Govt.
of India, Ministry of Finance (Department of Revenue) No. 74/59 Central Excise, dated the 31st July 1959, the Central Government hereby exempts cotton fabrics produced on powerlooms owned by any cooperative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before the 31st March, 1961 under any law relating to cooperative societies, from the whole of the duty leviable thereon subject to the following conditions : (a) that every member of the cooperative society who has been a manufacturer of cotton fabrics on powerlooms, has been exempt from excise duty for three years immediately preceding the date of his joining such society.
258 (b) that the total No. of cotton powerlooms owned by the cooperative society or owned by or allotted to its members is not more than four times the number of members forming such society.
(c) that each member of the cooperative society produces a certificate from the State Government concerned or such officer as.
may be nominated by the State Government that he is a bona fide member of the society and that the number of cotton power looms owned by or allotted to him and actually operated by him does not exceed four and did not exceed four at .any time during that three years immediately preceding the date of his joining the society and that he would have been exempt from excise duty even if he had not joined the cooperative society and. . . . . " The main contention on behalf of the appellant is.
that the ,case fell within the language of the two notifications, dated July 31, 1959 and April 30, 1960 and the appellant was entitled to ,exemption from payment of excise duty on the cotton fabrics.
The argument was stressed that the exemption applied to.
all cotton fabrics which were produced on power looms owned by the Cooperative Society or on powerlooms.
allotted to its members and it was not a relevant consideration as to who.
produced or manufactured such fabrics, whether it was the Society itself or its members or even outsiders.
It was conceded by the appellant that it was the owner of the cotton fabrics.
But even upon that assumption the claim of the appellant is that it was entitled to exemption from excise duty as it was covered by the language of the two notifications already referred to.
In our opinion, the argument of the appellant is well founded and must be accepted as.
correct.
The notification, dated July 31, 1959 grants exemption to "cotton fabrics produced by any Co operative Society formed of owners ,of cotton powerlooms which is registered or which may be registered on or before March 31, 1961" subject to four conditions set out in the notification.
In the next notification, dated April 30, 1960 exemption was granted to "cotton fabrics.
produced on powerlooms owned by any cooperative society or owned by or allotted to the members of the society, which is registered or which may be registered on or before March 31, 1961" subject to, the conditions specified in the notification.
It was contended on behalf of the appellant that under the contract between the appellant and the 'Society there was no relationship of master and servant but.
the appellant supplied raw material and the contractor i.e., the Society produced the goods.
But even on the assumption that the appellant had manufactured the goods by employing hired labour and was therefore a manufacturer, still the appellant was entitled to 259 exemption from excise duty since the case fell within the language of the two notifications, dated July 31, 1959 and April 30, 1960, and the cotton fabrics.
were produced on power looms owned by the co operative society and there is nothing in the notifications to suggest that the cotton fabrics should be produced by the Cooperative Society "for itself" and not for a third party before it was entitled to claim exemption from excise duty.
It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four power looms during the three years immediately preceding their having joined the society.
The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the cooperative effort should produce cloth.
The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society.
We are unable to accept the contention put forward on behalf of the respondents as correct.
On a true construction of the language of the notifications, dated July 31, 1959 and April 30, 1960 it is clear that all that is.
required for claiming exemption is that the cotton fabrics must be produced on power looms owned by the cooperative society.
There is no further requirement under the two notifications that the cotton fabrics must be produced by the Co operative Society on the powerlooms "for itself".
It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words.
The entire matter is governed wholly by the language of the notificatlon.
If the tax payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.
If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different, but that is not the case here.
In this connection we may refer to the observations of Lord Watson in Salomon vs Salomon & Co.(1): "Intentlon of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it.
In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words o.r by reasonable and necessary implication." (1) ; , 38.
260 It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus.
As appears in the judgment of the Privy Council in Crawford vs Spooner(1). ". we cannot aid the legislature 's defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there.
" Learned Council for the respondents is possibly right in his submission that the object behind the two notifications is to encourage the actual manufacturers of handloom cloth to switch over to power looms by constituting themselves into Cooperative Societies.
But the operation of the notifications has to be judged not by the object which the rule making authority had in mind but by the words which it has employed to effectuate the legislative intent.
Applying this principle we are of opinion that the case of the appellant is covered by the language of the two notifications, dated July 31, 1959 and April 30, 1960 and the appellant is entitled to exemption from excise duty for the cotton fabrics produced for the period between October 1, 1959 to April 30, 1960 and from May 1, 1960 to January 3, 1961.
It follows therefore that the appellant is entitled to the grant of a writ in the nature of certiorari to quash the order of the Assistant Collector of Central Excise of Baroda, dated November 26, 1962 and the appellate order of the Collector of Central Excise, dated November 12, 1963.
For the reasons expressed we hold that the judgment of the High Court of Gujarat, dated July 31, 1964 should be set aside, that Special Civil Application No. 1054 of 1963 should be allowed and that a writ in the nature of certiorari should be granted to quash the order of the Assistant Collector of Excise and Customs dated November 26, 1962 and the order of the Collector of Excise dated November 12, 1963.
This appeal is accordingly allowed with costs.
R.K.P.S. Appeal allowed.

summary/full:
The appellant who was a dealer in textiles in Bombay entered into an agreement with a registered cooperative society for weaving yarn supplied by him into cotton fabrics on powerlooms owned by its members.
The Society had obtained L 4 licence as required by the .
Under Rule 8 of the Rules made under the Act.
the Central Government was empowered to exempt any excisable goods from the whole or any part of duty payable on such goods.
In exercise of the power under Rule 8, the Central Government by a notification dated July 31, 1959 ' granted exemption to "cotton fabrics produced by any Cooperative Society/formed of owners of cotton powerlooms which is .registered or which may be registered on or before March 31, 1961" subject to certain conditions set out in the notification.
A subsequent notification dated April 30, 1960 granted exemption to "cotton fabrics produced on powerlooms owned by any Cooperative Society or owned by or allotted to the members of the Society which is registered on or before March 31, 1961".
On the strength of these notifications the appellant sought exemption from excise duty in respect of ' the cotton fabrics which were manufactured for it on powerlooms by the Cooperative Society.
The excise authorities did not accept the claim for exemption and in a writ petition filed by the appellant, the High Court gave only partial relief.
In appeal before this Court the question was whether the exemption granted under the; notifications in question could be claimed only when the cotton fabrics were manufactured by a Cooperative Society 'for itself.
HELD: On a true construction of the language of the notifications dated July 31, 1959 and April 30, 1960, it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on powerlooms owned by the Cooperative Society.
There is no further requirement under the two notifications that the cotton fabrics must be produced by the cooperative society on powerlooms "for itself '.
The appellant was therefore entitled to the exemption claimed.
[259 D E] It is well established that in a taxing statute there is no room for any intendment but regard must be had to the dear meaning of words.
A statutory notification may not be extended so as to meet a casus omissus.
It could be that the object behind the two notifications in question was to encourage the actual manufacturers of handloom cloth to switch over, to powerlooms by constituting themselves into Cooperative Societies.
But, the. operation of the notifications had to be judged not by the object which 254 the rule, making authority had in mind but by the words which it had employed to effectuate the legislative intent.
Applying this principle, the case of the appellant was covered by the language of the: two notifications and the appellant was entitled to exemption from excise duty for the cotton fabrics.
[259 E; 260 A D)] Salomon vs Salomon & Co. ; , 38 and Crawford vs Spooner, , referred to.


judgement:
Civil Appeal No. 822 of 1966.
Appeal by special leave from the judgment and order, dated April 27, 1965 of the Punjab High Court in Civil Revision No. 841 of 1964.
Sarjoo Prasad, D.N. Mishra and Ravinder Narain, for the appellants.
A.K. Sen, S.V. Gupte, B.P. Maheshwari and R.K. Maheshwari, for respondent No. 1 The Judgment of S.M. SIKRI and R.S. BACHAWAT was delivered by SIKRI, J.K.S. HEGDE, J., delivered a separate Opinion.
Sikri, J.
This appeal by special leave is directed against the judgment, dated April 27, 1965, of the High Court of Punjab at Chandigarh (section B. Capoor, J.) dismissing Civil Revision No. 841 of 1964.
The Civil Revision arose out of the following facts.
The following pedigree table shows the relationship between the parties: Sohan Lal (Decd.) Husband of Gujri Harbans Lal (D) Sudarshan L(D) husband of Kamla Wati husband of Lachmi Devi (Resp.6) Satish Rakeah Jatindar Kaka Chand Surinder Kumar Kumar Kumar Kumar (Minor) Rani (Resp.
6) App.
1 App.
2 App.
3 App. 4 (Minor) Smt.
Smt Nirmal Kanda Lajya Devi Devi Devi Reap.
3 Reap.4 Reap.5 On the death of Sohan Lal, Behari Lal was appointed as arbitrator by Harbans Lal, Surinder Kumar (then a minor through his mother Smt.
Lachmi Devi) and Smt.
Gujri, widow of Sohan Lal, for partition of the joint property.
Behari Lal, by his award dated October 21, 1956, divided the property into two equal 246 shares, between Harbans Lal and Surinder Kumar.
Harbans Lal and Surinder Kumar signed the award.
Harbans Lal died on May 20, 1960, upon which Surinder Kumar filed a suit for partition of the properties, the subject matter of the award.
This suit was dismissed as withdrawn on March 13, 1962.
On March 11, 1962, Behari Lal, arbitrator, filed an application under section 14 of the Indian (X of 1940) hereinafter referred to as the Act for filing the award in Court and for making the same a rule of the Court.
Surinder Kumar entered appearance and filed objections under section 30 of the Act.
One of the objections was that the award dated October 21, 1956, was not admissible in evidence for want of proper stamp and registration and could not, 'therefore, be made a rule of the Court.
On January 31, 1963, the objections were dismissed by Miss Harmohinder Kaur, Subordinate Judge, First Class, Ludhiana, as time barred, but she did not make the award a rule of the Court as there was a further objection to the effect that the award not having been executed on a properly stamped paper and not having been registered, was not admissible in evidence.
This objection was dealt with by Shri Om Parkash Saini, Subordinate Judge, First Class, Ludhiana, who, by his order, dated June 5, 1963, held that the award in question was not admissible in evidence as it was executed on deficiently stamped paper and was not registered.
He accordingly dismissed the application.
An appeal was taken to the District Judge, and the Additional District Judge by his order, dated November 23, 1964, upheld the order of the Subordinate Judge.
A revision was then taken to the High Court.
Capoor, J., held that the award actually effected a partition and required registration under section 17(1)(b) of the Indian .
The learned Judge dissented from the decision of & Full Bench of the Patna High Court in Seonarain Lal vs Prabhu Chand(1), and preferred to follow the view expressed by the Bombay High Court in Chimanlal Girdhar Ghanchi vs Dahyabhai Nathubhai Ghandhi,(2) by the Nagpur High Court in M .A. M. Salamullah Khan vs
M. Noorullah Khan,(3) by the Rangoon High Court in U. Keltaha vs
U. Pannawa,(4) and by the Calcutta High Court in Nani Bela Saha vs Ram Gopal Saha(5).
He accordingly dismissed the revision petition.
The decision of the Patna High Court was, however, later followed by a Full Bench of the Punjab and Haryana High Court in Sardool Singh vs Hari Singh(6), judgment, dated November 8, 1966.
(1) I.L.R. 37 Pat.
(2) A.I.R. 1938 Bom.
(3) A.I.R. 1939 Nag. 233, 235.
(4) A.I.R. 1940 Rang.
(5) A.I.R. 1945 Cal.
19, 21 22.
(6) I.L.R. [1967] 1 Pun.
& Hat.
247 The question which arises before us is whether an award given under the Act on a private reference requires registration under section 17(1) (b) of the Indian , if the award effects partition of immovable property exceeding the value of Rs. 100.
The main reason given by Sinha, J. speaking for the Patna Full Bench in Seonarain Lal vs Prabhu Chand(1), for holding that such an award does.
not require registration is that under the scheme of the Act a private award, unless a decree is passed in terms of the award, has no legal effect.
this, according to him, follows from the conclusion that once a matter has been referred to arbitration, it comes within the immediate control of the Court under the Act, and no other authority has any jurisdiction to deal with the matter except as provided for in section 35 of the Act.
He thought that what distinguishes the provisions in the from the provisions in the Second Schedule in the Code of Civil Procedure is that the Act bars jurisdiction of all Courts to Pronounce upon the validity, effect or existence of an award or arbitration agreement except the Court under the Act itself.
Sinha, J., looking at it from another point.
of view, namely, that an award is only effective when a decree follows the judgment upon the award, observed that such an award may be covered by the exception mentioned in section 17(2)(vi) (any decree or order of a Court) of the .
The Punjab Full Bench has followed this reasoning, and indeed reproduced paras 5 to 15 of the Patna Full Bench judgment in its own judgment.
Mahajan, J., with whom the two other Judges agreed, observed: "I am in respectful agreement with the entire line of reasoning in the Patna case barring the underlined observations : ". an award is only effective when a decree follows the judgment on the award such an award may be covered by the exception mentioned in section 17(2) (vi) (any decree or order of a Court) of the ." If these.
observations are meant to convey that award as such is covered by the exception (vi) of section 17 (2) of the , I am unable to agree.
But the decree that follows the award when it is made a rule of the Court, no exception can be taken to the view that such a decree is covered by the exception.
" The Punjab Full Bench gave two additional reasons: "(1) If an award is registered, it is still a waste paper unless it is made a rule of the Court.
Thus registration does not, in any manner, add to its efficacy or give it any added competence.
Section 32 of the (1) I.L.R. 37 Pat.252.
248 is specific for no right can be rounded on an award as such after coming into force of the 1940 ; (2) It is not disputed and indeed it could not be that the Court has the power, under section 16, to remit the award from time to time.
If registration of an award is an essential pre requisite before it could be made a rule of the Court under section 17, every time an award is remitted and a new award is made, the new award will require registration.
The result would be that, in the same controversy, there can be not only one registration but a number of registrations regarding the same title, a situation which is not even envisaged by the .
" It seems to us that the main reason given by the two.
Full Benches for their conclusion is contrary to.
what was held by this Court in its unreported decision in M,Is.
Uttam Singh Dugal & Co. vs The Union of India(1).
The facts in this case, shortly stated, were that M/s. Uttam Singh Dugal & Co. filed an application under section 33 of the Act in the Court of the Subordinate Judge,Hazaribag.
The Union of India, respondent No. 1, called upon respondent No. 2, Col. S.K. Bose, to adjudicate upon the matter in dispute between respondent No. 1 and the appellant company.
The case of M/s. Uttam Singh Dugal & Co. was that this purported reference to respondent No. 2 for adjudication on the matters alleged to be in dispute between them and respondent No. 1 was not competent because by an award passed by respondent No. 2 on April 23, 1952, all the.
relevant disputes between them had been decided.
The High Court held inter alia that the first award did not create any bar against the competence of the second reference.
On appeal this Court after holding that the application under section 33 was competent observed as follows: "The true legal position in regard to the effect of an award is not in dispute.
It is well settled that as a general rule, all claims which are the subject matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims. can be determined only on the basis of the said award.
After an award is pronounced, no action can be started on the original claim which had been the subject matter of the reference.
As has been observed by Mookerjee, J. in the case of Bhajahari Saha Banikya vs
Behary Lal Basak(2) "the award is, in fact, a final (1) Civil Appeal No. 162 of 1962 judgment delivered on October 11, 1962.
(2) at p. 898.
249 adjudication of a Court of the 'parties ' own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the fact of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive. in reality, an award possesses all the elements of vitality, even though it has not been formally enforced, and it may be relied upon in a litigation between the parties relating to the same subjectmatter.
" This conclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a court of last resort.
Therefore, if the award which has been pronounced between the parties has, in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent.
This position a lso has not been and cannot be seriously disputed." ' This Court then held on the merits "that the dispute in regard to overpayments which are sought to be.
referred to the arbitration of respondent No. 2 by the second reference are not new disputes; they are disputes in regard to.
claims which the Chief Engineer should have made before the arbitration under the first reference.
" This Court accordingly allowed the appeal and set aside the order passed by the High Court.
This judgment is binding on us.
In our opinion this judgment lays down that the position under the Act is in no way different from what it was before the Act came into force, and that an award has some legal force and is not a mere waste paper.
If the award in question is not a mere waste paper but has some legal effect it plainly purports to or affects property within the meaning of section 17(1)(b) of the .
We may mention that an appeal was filed in this Court against the decision of the Division Bench of the Patna High Court, which had referred the case of Sheonarain Lal vs Prabhu Chand(1) to the Full Bench for opinion on certain questions and which decided the case in accordance with that opinion, and the same was dismissed by this Court in Sheonarain Lal vs Rameshwari Devi(2) in which the judgment was delivered by the same Bench which decided the case of M/s. Uttam Singh Dugal vs The Union of India(a).
It is true that this Court in Sheonarain Lal vs Rameshwari Devi(2) did not expressly rule on the validity (1) I.L.R. 37 Pat.
(2) Civil appeal No. 296 of 1960 judgment delivered on December 6, 1962.
(3) Civil Appeal No. 162 of 1962 judgment delivered on October 11, 1962.
C1/69 17 250 of the answer given by the Patna Full Bench in Sheonarain Lal vs Prabhu Chand(1) that such awards did not require registration, but decided the case on the point whether the award in dispute in that case in fact purported or operated to create a right, title or interest of the value of more than Rs. 100 in immovable properties.
But, after holding that the document did not operate to create or extinguish any right in immovable property, this Court observed: "The position would have been otherwise if the arbitrators had directed by t he award itself that tiffs shop would go to Prabhu Chand without any further document.
In that case the award itself would have created in Prabhuchand a right to these properties.
That is not, however, the provision in the award.
In the absence of a registered document, Prabhu Chand would get no title on the award and Sheonarain 's title would remain in the shop.
" In this connection we may mention two other decisions of this Court.
In Champalal vs Mst.
Samarath Bai(2), Kapur, 1., speaking for the Court, observed as follows: "The second question that the award required registration and would not be filed by the arbitrators before it was registered is equally without substance.
The filing of an unregistered award under section 49 of the is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under section 17 of the Act.
That the award required registration was.
rightly admitted by both parties.
" Again in Kashtinathsa Yamosa Kabadi vs Narsingsa BhctsKarsa Kabadi(3) Shah J., speaking for the Court observed: "The records made by the Panchas about the division of the properties, it is true, were not stamped nor were they registered.
It is however clear that if the record made by the Panchas in so far as it deals with immovable properties is regarded as a non 'testamentary instrument purporting or operating to create, .declare, assign, limit or extinguish any right, title or interest in immovable property, it was compulsorily registerable under section 17 of the , and .would not in the absence of registration be admissible in evidence." (1) I.L,R. 37 Pat. 252.
(2) ; , 816 (3) ; , 806. 251 In view of the above decisions it is not necessary to refute the other reasons given by both the Full Benches, but out of respect for the learned Judges we will deal with them.
We may mention that no comment was made in these cases on the provisions of para 7 of Schedule 1 to the Act.
This para provides: "7.
The award shall be final and binding on the parties and persons claiming under them respectively.
" If the award is final and binding on the parties it can hardly be said that it is.
a waste paper unless.
it is made a rule of the Court.
We are unable to.
appreciate why the conferment of exclusive jurisdiction on a court under the Act makes an award any the less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure.
The Punjab Full Bench held that the registration does not in any manner add to its efficacy or give it any added competence.
We cannot concur with these observations.
If an award affects immovable property over the value of Rs. 100, its registration does get rid of the disability created by section 49 of the .
Regarding the difficulty pointed out by the Punjab Full Bench that there may be many registrations we are not called upon to decide whether these difficulties would arise because the language of section 17 of the is plain.
It may be that no such difficulties will arise because under section 16(2) of the Act what the arbitrator submits to the Court is his decision and it may be that the decision may not be registerable under section 17 of the .
But as we have said before we are not called upon to decide this point.
In our opinion, Capoor, J., was right in dissenting from the Patna Full Bench in Sheonarain Lal vs Prabhu Chand(1) and holding that the award in dispute required registration.
In the result the appeal fails and is.
dismissed with costs.
We may make it clear that we are dealing only with an award made on a reference by the parties without the intervention of court.
Hegde, J. I agree.
But I would like to add few words.
Arbitration proceedings, broadly speaking may be divided into two stages.
The first stage commences with arbitration agreement and ends with the making of the award.
And the second stage relates to the enforcement of the award.
Paragraph 7 of the First Schedule to the lays down that, "the award shall be final and binding on the parties and persons claiming under them respectively".
Therefore it is not possible to agree with the Full Bench decisions of the Patna High Court (1) I.L.R. 37 Part.
252. 252 and that of the Punjab and Haryana High Court that an award Which is not made a decree of the Court has no existence in law.
The learned Judges ' who decided those cases appear to have proceeded on the basis that an award which cannot be enforced is not a valid award and the same does not create any rights in the property which is the subject matter of the award.
This in my opinion is not a correct approach.
The award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court.
It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps.
For the purpose of section 17(1)(b) of the , all that we have to see is whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property.
If it does, it is compulsorily registerable.
In the aforementioned Full Bench decisions sufficient attention has not been given to section 17 of the .
The focus was entirely on the provisions of the and there again on the enforcement of the award and not in the making of the award.
A document may validly create rights but those rights may not be enforceable for various reasons.
Section 17 does not concern itself with the enforcement of rights.
That Section is attracted as soon as its requirements are satisfied There is no gainsaying the fact that the award with which we are concerned in this case, at any rate, purported to creat rights in immovable property of the value of rupees more than one hundred.
Hence it is compulsorily registerable.
Y.P. Appeal dismissed.

summary/full:
An arbitrator appointed by the appellants and respondent partitioned their immovable property exceeding the value of Rs. 100.
The arbitrator applied under section 14 of the Indian to the Court for making the award a rule of the court.
On the question whether the award was admissible in evidence as it was not registered, HELD:(per Full Court.) The award required registration.
(Per Sikri and Bachawat, JJ.) All claims which are the subject matter of a reference to arbitration merge in the award which is pronounced In the proceedings before the arbitrator and after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award.
After an award is pronounced, no action can be started on the original claim which had been the subject matter of the reference.
The position under the Act is in no way different from what it was before the Act came into force.
Therefore.
the conferment of exclusive jurisdiction on 'a court under the does not make 'an award any less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure.
The filing of an unregistered award under section 49 of the Registration Act is not prohibited: what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under section 17 of the Registration Act.
It cannot be said that the registration does not in any manner add to its efficacy or give it added competence.
If an award affects immovable property order the value of Rs. 100 its registration does get rid of the disability created by section 49 of the Registration Act.
The award in question was not a mere waste paper but had some legal effect and it plainly purports to affect or affects property within the meaning of section 17(1)(b) of the Registration Act [248 F H; E] M/s. Uttam Singh Dugal & Co. vs Union of India, C.A. No. 162 of 1962 dated 11 10 1962, Champalal vs Mst.
Samarath Bai; , 816 and Kashinathsa Yamosa Kabadi vs Narsingsa Baskarsa Kabadi, [1961] 3 S.C.R. 792, 806, followed.
Sheonarain Lal vs Prabhu Chand, I.L.R. 37 Pat.
252 and Sardooll Singh vs Hari Singh I.L.R. [1967] 1 Punj.
& Har. 622 disapproved.
Chamanlal Girdhat Ghanchi vs Dhayabhai Nathubhai Ghandi A.I.R. 1938 Bom.
422, M.A. M. Salamullah Khan vs
M. Noorullah Khan, A.I.R. 1939 Nag. 233, Keltaha vs
U. Pannawa A.I.R. 1940 Rang.
228, Nani Bela Saha vs Ram Gopal Saha.
A.I.R. 1945 Cal.
19 and Bhajahari Saha Banikya vs Behary Lal Basak, , approved.
(Per Hegde.
J. concurring): It is one thing to say that a right is not created.
it is an entirely different thing to.
say that the right created can 245 not be enforced without further steps.
An award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court.
For the purpose of section 17(1)(b) of the Registration Act, all that had to be seen is whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property.
Since it does, it is compulsorily registerable.
[252 B D]