judgement:
N: Criminal Appeal No. 126 of 1975.
Appeal by special leave from the judgment and order dated the 19th/20th February, 1974 of the Bombay High Court in Criminal Appeal No. 1549 of 1971.
O. P. Rana and R. N. Poddar for the Appellant.
Ram Jethmalani and Miss Rani Jethmalani for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
It is one of the sad and distressing features of our criminal justice system that an accused person, resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journeying back and forth, between the Court of first instance and the superior Courts, at frequent interlocutory stages.
Applications abound to quash investigations, complaints and charges on all imaginable grounds, depending on the ingenuity of client and counsel.
Not infrequently, as soon as a court takes cognizance of a case requiring sanction or consent to prosecute, the sanction or consent is questioned as improperly accorded, so soon as a witness is examined or a document produced, the evidence is challenged as illegally received and many of them are taken up to the High Court and some of them reach this Court too on the theory that 'it goes to the root of the matter '.
There are always petitions alleging 'assuming the entire prosecution case to be true, no offence is made out '.
And, inevitably proceedings are stayed and trials delayed.
Delay is a known defence tactic.
With the passage of time, witnesses cease to be available and memories cease to be fresh.
Vanishing witnesses and fading memories render the onus on the prosecution even more burdensome and make a welter weight task a heavy weight one.
Sure, we do not mean to suggest that the responsibility for delaying criminal trials is always to be laid at the door of the rich and the reluctant accused.
We are not unmindful of the delays caused by the tardiness and tactics of the prosecuting 302 agencies.
We know of trials which are over delayed because of the indifference and somnolence or the deliberate inactivity of the prosecuting agencies.
Poverty struck, dumb accused persons, too feeble to protest, languish in prisons for months and year on end awaiting trial because of the insensibility of the prosecuting agencies.
The first Hussainara case (Hussainara Khatoon & Ors.
vs Home Secretary, State of Bihar, Govt.
Of Bihar, Patna)(1) was one like that.
Sometimes when the evidence is of a weak character and a conviction is not a probable result, the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to harass them.
This is a well known tactic in most conspiracy cases.
Again, an accused person may be seriously jeopardised in the conduct of his defence with the passage of time.
Witnesses for the defence may become unavailable and their memories too may fade like those of the witnesses for the prosecution.
In such situations in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by article 21 of the Constitution.
Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice.
It is prejudice to a man to be detained without trial.
It is prejudiced to a man to be denied a fair trial.
A fair trial implies a speedy trial.
In Hussainara Khatoon vs State of ' Bihar(1), this Court said (at p. 179). "Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.
It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights.
The Sixth Amendment to the Constitution provides that" 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial '.
So also Article 3 of the European Convention on Human Rights provides that: 'every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial '.
We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, 303 it is implicit in the broad sweep and content of Article 21 as R interpreted by this Court in Maneka Gandhi vs Union of India(1).
We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just '.
If a person is deprived of his liberty under a procedure which is not 'reasonable, fair and just ', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release.
Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just ' unless that procedure ensures a speedy trial for determination of the guilt of such person.
No procedure which does not ensure a reasonable, quick trial can be regarded as 'reasonable, fair or just ' and it would fall foul of Article 21.
There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21".
What is the remedy if a trial is unduly delayed ? In the United States, where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence.
But in deciding the question whether there has been a denial of the right to a speedy trial, the Court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay.
The Court is also entitled to take into consideration whether the delay was unintentional, caused by over crowding of the Court 's docket or under staffing of the Prosecutors.
Strunk vs United States(2) is an instructive case on this point.
As pointed out in the first Hussainara case, (supra) the right to a speedy trial is not an expressly guaranteed constitutional right in India but is implicit in the right 304 to a fair trial which has been held to be part of the right to life and liberty guaranteed by article 21 of the Constitution.
While a speedy trial is an implied ingredient of a fair trial, the converse is not necessarily true.
A delayed trial is not necessarily an unfair trial.
The delay may be occasioned by the tactic or conduct of the accused himself.
The delay may have caused no prejudice whatsoever to the accused.
The question whether a conviction should be quashed on the ground of delayed trial depends upon the facts and circumstances of the case.
If the accused is found to have been prejudiced in the conduct of his defence and it could be said that the accused had thus been denied an adequate opportunity to defend himself, the conviction would certainly have to go.
But if nothing is shown and there are no circumstances entitling the Court to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only.
In the present case, in the beginning, three persons, Champalal Punjaji Shah, Poonam Chand and Mohan Lal were charged by the learned Additional Chief Presidency Magistrate 8th Court, Esplanade, Bombay, with offences under section 120B of the Indian Penal Code read with 135 of the Customs Act and rule 126P (2) (ii) and (iv) of the Defence of India Rules, 1962, 135(a) and (b) and (i) of the Customs Act and rule 126P (2) (ii) and rule 126P (2) (iv) of the Defence of India Rules.
After some evidence had been led by the prosecution, the Public Prosecutor filed an application before the learned Magistrate requesting permission to withdraw from the prosecution against accused No. 2, Poonam Chand.
Permission was granted and thereafter Poonam Chand was examined by the prosecution as their witness.
After some vicissitudes, necessitated by the respondent Champalal Punjaji Shah taking the matter to the higher courts, the trial finally concluded and by a judgment dated December 13, 1971 the learned Magistrate acquitted Mohan Lal, accused No. 3 but convicted accused No. 1, Champalal Punjaji Shah under various heads of the charge and sentenced him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000 on each of different counts.
The substantive sentence of imprisonment were directed to run concurrently.
On appeal, the respondent was acquitted by the High Court.
The State of Maharashtra has filed the present appeal against the judgment of the High Court of Bombay after obtaining special leave from this Court under article 136 of the Constitution.
The brief facts of the case may now be stated.
On May 30, 1965, on information received, P.W. 4, the Superintendent of 305 Central Excise, and P.W. 1, the Deputy Superintendent of Central Excise, accompanied by other Central Excise officers and two panchas, Savalram Ganpat Bhagat (P.W. 7) and another went to fiat No. 14 on the first floor of a building known as Vidya Vihar on Tulsi Pipe Road, Dadar, Bombay.
The flat had two doors, one away from the staircase, locked from the outside and another near the staircase and closed from inside.
P.W. 1 pressed the calling bell and the door was opened by Poonam Chand.
Another person was sitting on a sofa inside the room.
He was accused No. 1.
On seeing the Central Excise officers accused No. 1 got up and went towards them.
PW 1 told the accused that he was authorised to search the room and showed them the authorisation given to him by PW 4.
The room was then searched.
The rear side of the entrance door had a handle from which was hanging a 'Tiger ' brass lock.
Besides the sofa there was a steel almirah.
PW 1 asked accused No. 1 to open the almirah.
Accused No. 2 Poonam Chand then took out a bunch of keys from the pocket of his trousers and opened the almirah.
There were eight drawers in the steel almirah.
These drawers contained some documents.
It was noticed that the two bottom drawers had false bottoms.
When the false bottoms were pulled out and searched, they were found to contain 11 jackets in each of which there were 100 slabs of gold weighing 10 tolas each.
The total quantity of gold found secreted in the almirah was 11,000 tolas.
The gold slabs had foreign markings on them.
A key was also found in that almirah and this key was found to fit the 'Tiger ' lock which was hanging from the inner handle of the front door of the flat.
Thereafter accused No. 1 's person was searched and some documents and two bunches of keys, one containing eight keys and the other containing three keys were found.
The bunch of eight keys was found to fit the steel almirah from which the slabs of gold were recovered.
Two of the three keys of the other bunch were obviously keys of a scooter while the third key was found to fit the 'Tiger ' lock which was on the handle of the back of the front door of the flat.
Thereafter a panchnama was prepared.
During the course of the investigation it was found that .
the flat was taken on a 'leave and licence ' basis by accused No. 3.
After the investigation was completed a complaint was filed for the various offences mentioned by us at the outset.
The case of the respondent was that he had purchased a scooter from Mohan Lal and had gone to the flat of Mohan Lal that night for completing some negotiations.
When he was coming from the building he was dragged into flat No. 14 by the Customs 306 officers.
He had nothing to do with the flat nor did he have anything to do with the gold found in the flat.
The bunch of eight keys was not found on his person as alleged by the prosecution.
The bunch of three keys was on his person but two out of the three keys were of the scooter purchase by him from accused No. 3.
Shri Jethmalani, learned counsel for the respondent initially challenged the reception of the evidence of Poonam Chand into the record but desisted from doing so when we told him that he might confine himself to the rest of the evidence which appeared to us to be sufficient to hold the respondent guilty of the offence with which he was charged.
The three outstanding circumstances established against the respondent and not disputed before us by the learned counsel for the respondent were (1) the presence of the respondent in the flat at the time of the raid by the Central Excise officers and the recovery of the gold slabs of foreign origin from the steel almirah and (2) the recovery of the bunch of eight keys from his person which keys fitted the almirah from which the gold slabs were recovered and (3) the recovery of a bunch of three keys from his person one of which fitted the lock which was hanging from the inside handle of the door of the flat.
To any mind, unassailed by "some light, airy, unsubstantial doubt that may flit through the minds of any of us about almost anything at sometime or other( ')" these circumstances should be sufficient to draw an inference of guilt.
The High Court however thought that the steel almirah in the flat was not shown to have been specially made and that the keys of a similar almirah could well fit it and that was perhaps how the keys recovered from the accused did fit the almirah in the flat.
That of course was not the plea of the accused nor was it a suggestion made to the prosecution witnesses.
We agree with the submission that circumstantial evidence must be of a conclusive nature and circumstances must not be capable of a duality of explanations.
It does not however mean that the Court is bound to accept any exaggerated, capricious or ridiculous explanation which may suggest itself to a highly imaginative mind.
It is well to remember that the Evidence Act considers a fact as "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent mind ought under the circumstances of the particular case, to act upon the supposition that it exists.
It is also 307 worthy of remembrance that a Court may presume the existence of A any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
We are unhesitatingly of the view that the explanation fancied by the High Court was a wholly unreasonable explanation in the circumstances of the case.
Shri Jethmalani reminded us first that we were considering circumstantial evidence, second we were dealing with an appeal against acquittal and third we were exercising our extraordinary but exceptional jurisdiction under article 136.
Indebted as we are to him, for his forceful presentation of the reasons against interference with the judgment of the High Court, we think that, interference in this case is imperative and hesitation to interfere will lead to a miscarriage of justice.
Shri Jethmalani also urged that the trial of the respondent was considerably delayed, that there was thus a violation of the fundamental right to life and liberty guaranteed under article 21 of the Constitution and that was a sufficient ground to entitle the accused to a dismissal of the complaint against him.
We have earlier discussed the relevant principles which should guide us in such situations.
In this case the accused himself was responsible for a fair part of the delay.
He has also not been able to show cause how he was prejudiced in the conduct of his defence by reason of the delay, Shri Jethmalani then suggested that the long lapse of time since the commission of the offence should be taken into account by us and we should refuse to interfere with the order of acquittal or at any rate we should not send the accused back to prison particularly in view of the fact that the accused was preventively detained for over two and nearly three years on the basis of the very acts complained of in this particular case.
We are afraid we are unable to agree with Shri Jethmalani.
The offence is one which jeopardises the economy of the country and it is impossible to take a casual or a light view of the offence.
It is true that where the offence is of a trivial nature such as a simple assault or the theft of a trifling amount, we may hesitate to send an accused person back to jail as it would not be in the public interest or in the interest of anyone to do so.
But the offences with which we are concerned and the stakes involved clearly show that sympathy in this case would be misplaced.
We therefore, set aside the judgment of the High Court and restore that of the learned Additional Chief Presidency Magis 308 trate, 8th Court, Esplanade, Bombay.
The respondent will surrender forthwith.
The gold slabs will stand confiscated to the Central Government.
The appeal is allowed.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Under the present system of criminal justice an accused person resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journeying back and forth between the court of first instance and the superior Courts at frequent interlocutory stages, by filing applications to quash investigations, complaints and charges on all imaginable grounds.
Delay is a known defence tactic.
All this is not to say that the responsibility for delaying criminal trials should always be laid at the door of the rich and the reluctant accused.
Delays caused by tardiness, indifference and somnolence or the deliberate inactivity of prosecuting agencies are not uncommon or unknown.
As a result of the delaying tactics of prosecuting agencies an accused person may be seriously jeopardised in the conduct of his defence.
In such a situation it may be possible to infer infringement of the right to life and liberty guaranteed by Article 21 of the Constitution.
Denial of a speedy trial may lead to an inference of prejudice and denial of justice.
Hussainara Khatoon vs State of Bihar, [ 1979] 3 SCR 169, referred to.
In deciding whether there has been denial of the right to speedy trial, the court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay.
whether he was prejudiced in the preparation of his defence by reason of the delay and whether the delay was unintentionally caused by reason of overcrowding of the Court 's docket or under staffing of prosecutors and so forth.
Though in India the right of speedy trial is not an expressly guaranteed constitutional right it is implicit in the right to fair trial which is a part of the right to life and liberty guaranteed by Article of the Constitution.
While a speedy trial is an implied ingredient of a fair trial the converse is not necessarily true.
A delayed trial is not necessarily an unfair trial.
The question whether conviction should be quashed on grounds of delayed trial depends upon the facts and circumstances of a case.
If it is shown to the 300 satisfaction of the Court that the accused had been prejudiced in the conduct of his defence and thus had been denied adequate opportunity to defend himself the conviction would have to be set aside.
There would, on the contrary, be no justification to quash a conviction on the ground of delayed trial unless it is shown that there are circumstances entitling the court to raise a presumption that the accused had been prejudiced.
[304 B C] In the instant case in a surprise raid on the house of the respondent, Central Excise officers discovered a large quantity of gold bars with foreign markings concealed in the false bottom of a steel almirah, the keys of which were found with him.
On a charge for offences under section 120B I.P.C. read with section 135 Customs Act and rule 126P(2)(ii) and (iv) of the Defence of India Rules 1962, the Additional Chief Presidency Magistrate convicted the respondent and variously sentenced him under different counts with imprisonment and fine.
On appeal the High Court acquitted him. ^ HELD: Although it is settled law that circumstantial evidence must be of a conclusive nature and circumstances must not be capable of a duality of explanations, the Court is not bound to accept any exaggerated, capricious or ridiculous explanation which may suggest itself to a highly imaginative mind.
The three circumstances established in the instant case were: (1) presence of the respondent in the flat at the time of the raid by Central Excise officers and recovery of gold slabs with foreign markings from the steel almirah: (2) recovery from his person of a bunch of eight keys which fitted the almirah and (3) recovery of a bunch of three keys from his person, one of which fitted the lock hanging from the inside handle of the door of the flat.
The explanation fancied by the High Court that the steel almirah in the flat was not shown to have been specially made and that the keys of a similar almirah could well fit it and that perhaps was how the keys recovered from the respondent did fit the almirah in the flat, was a wholly unreasonable explanation in the circumstances of the case.
This was not the plea of the respondent, nor did he make any such suggestion to the prosecution witnesses.
[306 FG & CD] Notwithstanding the fact that the case is based on circumstantial evidence and this is an appeal against acquittal and that this Court is exercising extraordinary but exceptional jurisdiction under Article 136 of the Constitution, interference with the judgment of the High Court in the instant case is imperative hesitation to do which would lead to miscarriage of justice.
[307 C] The respondent being himself responsible for a fair part of the delay, could not complain that there was violation of his fundamental right to life and liberty guaranteed under Article 21; nor has he shown how he was prejudiced in the conduct of his defence by reason of the delay.
[307 E] Nor again would the fact that there was a long lapse of time since the commission of the offence or that the respondent was preventively detained for over two years be of any avail to him because the offence was one which jeopardised the country s economy.
It is impossible to take a casual or light view of 301 such an offence.
It is only where the offence is of a trivial nature as for example, a simple assault or theft of a trilling amount that the Court might hesitate to send the accused back to jail after a long lapse of time; but the nature of the offence and the stakes involved in this case do not merit any sympathy being shown to the respondent.
[307 G H]


judgement:
Civil Appeal No. 965 of 1980 Appeal by special leave from the judgment dated the 28th November, 1979 of the Allahabad High Court in Civil Revision No.661 of 1977.
Manoj Swarup & Miss Lalita Kohli for the Appellant.
R. N. Sharma and N. N. Sharma for the Respondent.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal by special leave is against a judgment rendered by the First Additional District Judge, Bulandshahr, allowing a Revision Petition filed before him by the respondent herein.
333 The respondent is the owner of a shop building in Jahangirabad town which he had let out to the appellant on a month to month tenancy basis.
A suit for ejectment was filed by the respondent in the Court of Small Causes (Civil Judge), Bulandshahr, praying for eviction of the appellant from the shop under Section 2() (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act) on the ground that the tenant was in arrears of rent for not less than four months commencing from April 9, 1972 and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand (October 19, 1972).
It was alleged in the plaint that the agreed rent of the shop was Rs. 100/ per month and that the tenant had kept the rent in arrears from April 9, 1972 onwards despite notice having been served on him on October 19, 1972 demanding payment of arrears of rent and determining the tenancy.
The appellant (defendant) pleaded in defence that the rent was only Rs. 90/ per month, that he had not committed any default in payment of the same and hence the suit for ejectment was not maintainable.
According to the defendant, after service of the notice of demand for payment of arrears of rent, the respondent had approached him with a request to stand surety for him for the payment of arrears of sales tax due by him for the realisation of which the Amin had come with a warrant for the arrest of the respondent and since the appellant had acceded, to the said request and stood surety for the respondent there could be no further question of any arrears of rent being outstanding as due by him to the respondent.
The trial court held that the rent of the shop was Rs. 90/ per month, that it had been kept in arrears by the tenant from April 9, 1972 onwards and a default had been committed by the tenant in payment of arrears of rent of more than four months after the notice of demand.
Notwithstanding the aforesaid finding that there had been such default committed by the tenant, the trial court took the view that the conduct of the plaintiff respondent in inducing the defendant to stand surety for him for the payment of sales tax arrears due by him constituted a waiver of the demand made in the notice for surrender of possession on the ground of arrears of rent made.
On this reasoning, the trial court denied the plaintiff the relief of ejectment and decreed the suit only for recovery of arrears of rent.
The respondent plaintiff carried the matter in revision before District Court, Bulandshahr.
The learned District Judge found that 334 the plea of waiver had not been put forward by the defendant either in the written statement or in any other manner at any stage before the trial court and that the issue covering the question of waiver had been framed by the trial court of its own accord.
The District Judge further found on the merits that no conduct amounting to waiver on the part of the plaintiff had been established by the evidence because even according to the case of the defendant himself, excepting for standing surety for the plaintiff, he had not actually made any payment on behalf of the plaintiff towards the sales tax dues since the plaintiff had specifically refused to make any endorsement in the Rent Deed adjusting the proposed payment of sales tax against the arrears of rent due by the defendant.
Inasmuch as the trial court had found that the default in payment of the arrears of rent for a period exceeding four months had been committed by the defendant and it had denied a relief of ejectment only on the reasoning that there had been a waiver of the demand for eviction on the part of the plaintiff, the District Judge allowed the Revision Petition and granted the plaintiff a decree for ejectment under Section 20 (2) (a) of the Act.
Thereafter, the appellant defendant took up the matter in further revision before the High Court under Section 115, Code of Civil Procedure.
The High Court by its judgment dated November 28, 1979 confirmed the findings of the District Judge and dismissed the Revision Petition.
The defendant thereupon approached this Court for the grant of special leave to appeal against the said judgment of the High Court.
It would appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was not maintainable in law.
Hence, this position was conceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court.
That request was granted by order of this Court dated April 23, 1980.
This Civil Appeal is thus directed against the judgment of the District Judge.
After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as 335 per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972.
As rightly observed by the District Court, the defendant had not put forward any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver.
Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant defendant to the sales tax authorities on behalf of the plaintiff and that the respondent plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972.
The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge.
Before us, an additional point was sought to be raised by the appellant which had not been put forward by him either before the trial court or before the District Judge at the revisional stage.
It was urged that on the date of first hearing of the suit the defendant had deposited into the trial court an amount of Rs. 1,980/ and hence he is entitled to the benefit of sub section (4) of Section 20 of the Act which empowers the Court to pass an order relieving the tenant against his liability for eviction on the ground mentioned in clause (a) of sub section (2) of the said Section.
It is necessary in this context to reproduce clause (a) of sub section (2) and sub section (4) of Section 20 of the Act.
They are in the following terms: "20 (2). . . . . . . (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.
(4) In any suit for eviction on the ground mentioned in clause (a) of sub section (2), if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages for use and occupation of the building due from him (such damages for 336 use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord 's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub section (I) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground: Provided that nothing in this sub section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
" The provisions of sub section (4) will get attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlord 's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub section (I) of Section 30.
There is absolutely no material available on the record to show that the alleged deposit of Rs. 1,980/ was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord.
The deposit in question is said to have been made by the appellant on January 25, 1974.
It was only subsequent thereto that the appellant filed his written statement in the suit.
It is noteworthy that one of the principal contentions raised by the appellant defendant in the written statement was that since he had stood surety for the landlord for arrears of sales tax, there was no default by him in the payment of rent.
In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord.
Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).
In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub section (4) of Section 20 and hence he is 337 not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub section (2) of the said Section.
This appeal is, therefore, devoid of merits and is accordingly dismissed.
We direct the parties to bear their respective costs.
N. K. A. Appeal dismissed.

summary/full:
The respondent landlord filed a suit under section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 against the appellant praying for his eviction from the suit premises.
It was alleged that the tenant was in arrears of rent for not less than four months from April 9, 1972, that he had failed to pay the same within one month from the date of the notice to him and that the tenant had declined to pay arrears of rent despite the notice.
While denying the allegation of default in payment of rent the tenant claimed that since he stood surety for the landlord for the payment of arrears of sales tax payable by him there could not be any question of arrears of rent being outstanding against him to the landlord.
Although the trial Court found it as a fact that the tenant had committed default in payment of rent for more than four months after the notice of demand had been issued it held that the landlord 's action in inducing the tenant to stand surety for him for payment of arrears of sales tax constituted waiver of the demand for rent and that for this reason the landlord was not entitled to the relief of ejectment.
In revision the District Judge found that the tenant had at no stage of the proceedings before the trial Court put forward the plea of waiver but that an issue had been framed by the trial Court of its own accord.
On merits the District Judge held that no conduct on the part of the landlord which amounted to waiver had been established because the tenant had not actually made any payment on behalf of the landlord towards the sales tax dues.
The High Court dismissed the tenant 's revision petition under section 115 C.P.C. [Since in the special leave petition the tenant contended that the revision petition Sled by him in the High Court was not maintainable in law, this Court granted special leave to appeal against the judgment of the District Court.] 332 Dismissing the appeal, ^ HELD: The District Court was right in holding That in the absence of any plea of waiver put forward by the tenant the trial Court was not really called upon to go into that question.
Therefore, the finding of the trial Court that the landlord 's notice had been effaced by his (landlord 's) subsequent conduct which amounted to waiver was manifestly illegal and perverse.
It was the specific case of the tenant that no amount whatever had been paid by him to the sales tax authorities on behalf of the landlord.
Neither did the landlord make any endorsement on the rent deed adjusting the proposed payment of sales tax against arrears of rent.
[335 A D] Having failed to establish that he had complied with the conditions specified in section 20(4) of the Act the tenant is not entitled to be relieved against his liability for eviction on the ground set out in section 20(2 )(a) of the Act.
[336 H 337 A] The provisions of section 20(4) will get attracted only if the tenant had at the first hearing of the suit unconditionally paid or tendered to the landlord the entire amount of rent and damages due from him for use and occupation of the building together with interest thereon at 9% per annum.
There is nothing on record to show that the deposit was made on the first date of hearing and that it was made by way of unconditional tender for payment to the landlord.
On the contrary the tenant in his written statement, had stated that since he had IL stood surety for the landlord 's arrears of sales tax, there was no default by him r in the payment of rent.
In the face of a plea disputing the existence of any arrears of rent and denying the default the deposit even if made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord.
Nor is there anything on the record to show that what was deposited was the correct amount calculated in accordance with the provisions of section 20(4) of the Act.
[336 D H]


judgement:
ivil Appeal Nos.
1725 26 of 1973.
From the judgment and order dated 27th October, 1972 of the Allahabad High Court in Special Appeals Nos. 424 and 425 of 1971.
P. N. Lekhi, M.K. Garg and V. K. Jain for the Appellants.
A. P. section Chauhan and C.K. Ratnaparkhi for the Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
These appeals by certificate granted by the Allahabad High Court raise the following substantial question of law of general importance which needs to be decided by this Court: "Whether the view taken by the Full Bench in Smt.
Maya vs Raja Dulaji and others (1) that the lessor/landlord should not only be disabled person on the relevant dates, but that he should continue to live on the date immediately preceding the date of vesting, within the meaning of clauses (h) of section 21 (1) of the U.P. Zamindari Abolition and Land Reforms Act, represents a correct construction of clause (h) of section 21(1) of the Act ?" The facts giving rise to the aforesaid question may be stated.
One Smt Ram Kali, widow of Tikam Singh, was the land holder of the plots (agricultural land) in dispute situated in villages Agaota 371 and Khaiya Khera in District Bulandshahr (U.P.).
On June 14, 1945 Smt.
Ram Kali who was a Sirdar and a 'disabled person ' falling within section 157 (1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called "the Act") executed a registered deed of lease for a period of S years in favour of Uttam Singh (the predecessors in title of the respondents) but before the expiry of the period of S years she died in August, 1945 and Dan Sahai (her husband 's real brother and predecessors in title of the appellants) inherited her interest.
Dan Sahai was also a 'disabled person ' within the meaning of section 157(1) of the Act.
It seems that after the expiry of the period of the registered lease Uttam Singh and Murli Singh continued to hold the land as tenants from year to year under Dan Sahai.
In consolidation proceedings a question arose whether Uttam Singh and Murli Singh, who were lessees under Smt.
Ram Kali and Dan Sahai acquired the status of Sirdars or they remained Asamis of the plots in dispute.
The case of Dan Sahai was that they were Asamis and not adhivasis entitled to be treated as Sirdars under section 240 of the Act and that depended upon whether as tenants or occupants of the plots in dispute their case fell within the provisions of section 21(1) (h) of the Act.
The contention of Dan Sahai was that since Smt.
Ram Kali was a disabled person on the date of letting and since he who succeeded her was also a disabled person on April 2, 1946, the lease in favour of Uttam Singh and Murli Singh would fall within section 21(1) (h) and as such Uttam Singh and Murli Singh shall be deemed to be Asamis.
On the other hand the contention on behalf of Uttam Singh and Murli Singh was that the land holder should not only be a disabled person on both the dates mentioned in sub cl.
(a) of cl.
(h) of section 21(1? (being the date of letting as also April 9, 1946) but the same landlord should continue to live on the date immediately preceding the date of vesting (which is 1 7 1952 under the Act) and since in the instant case the same landlord who had let out the plots and who was disabled person on the date of letting had not continued to live on the date immediately preceding the date of vesting section 21(1) (b) was totally inapplicable and, therefore, they were entitled to be treated as Sirdars.
The Division Bench of the Allahabad High Court in Special Appeals Nos.
424 425 of 1971 accepted the contention raised by counsel on behalf of Uttam Singh and Murli Singh (the respondents ' predecessors) relying on the view taken by the Full Bench in Smt.
Maya vs Raja Dulaji and others (1) and decided the appeals in their favour by holding that they were not Asamis but had become Sirdars.
372 At the outset it may be stated that it was not disputed either in the lower courts or before us that both Smt.
Ram Kali as well as Shri Dan Sahai who succeeded to her interest in the plots after her death were disabled persons under section 157((1) of the Act.
In fact it was accepted by both the sides that on the date of letting (being 14th June, 1945) Smt.
Ram Kali, the then land holder was a disabled person and on 9th April, 1946 (being the other relevant date under sub clause (a) of clause (h) of section 21(1) Dan Sahai, the then land holder, was a disabled person who continued to be the land holder upto the date of vesting, and the question is whether in such 8 case the occupation of the plots by Uttam Singh and Murli Singh under the lease from both of them would fall within the provisions of section 21(1) (h) of the Act.
The relevant provision runs thus: "21(1) Notwithstanding anything contained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held land as . . (h) a tenant of sir of land referred to in sub clause (a) of clause (i) of the explanation under section 16, a sub tenant referred to in sub clause (ii) of clause (a) of section 20 or an occupant referred to in sub clause (i) of the said section where the land holder or if there are more than one land holders, all of them were person or persons belonging (a) if the land was let out or occupied prior to the ninth day of April, 1946, both on the date of letting or occupation, as the case may be, and on the ninth day of April, 1946, and (b) if the land was let out or occupied on or after the ninth day of April, 1946, on the date of letting or occupation, to any one or more of the classes mentioned in sub section (I) of Section 157.
shall be deemed to be an asami thereof " 373 In other words, section 21 (1) (h) provides that every person occupying or A holding land in any one of the capacities mentioned in cl.
(h) on the date immediately preceding 1 7 1952 shall be deemed to be an Asami thereof notwithstanding anything contained in the Act, if the landholder or if there are more than one all of them were disabled persons within the meaning of section 157(1), both on the date of letting as well as on April 9, 1946 where the letting has taken place prior to April, 9, 1946, or were disabled persons on the date of letting if the letting has occurred after April 9, 1946.
In the instant case it is not disputed that Uttam Singh and Murli Singh were on the date immediately preceding the date of vesting holding or occupying the plots in question in one or the other capacity mentioned in cl.
(h); secondly, since the letting was prior to April 9, 1946 sub cl.
(a) of cl.
(h) is attracted and it is also not disputed that on the date of letting the then land holder (Smt.
Ram Kali) was a disabled person and on April 9, 1946 the then land holder Dan Sahai, who succeeded her, was also a disabled person under section 157(1) of the Act.
Incidentally Dan Sahai continued to be the land holder on the date immediately preceding 1.7 1952.
On these facts it seems to us clear that all the requirements of section 21(1) (h) could be said to have been satisfied but the Division Bench relying upon the Full Bench decision in Smt.
Maya vs Raja Dulaji and others (supra) held that Uttam Singh and Murli Singh were not Asamis and had become Sirdars because section 21(1) (h) was not attracted inasmuch as in their view it was a requirement of that provision that not merely should the land holder be a disabled person on both the dates mentioned in sub cl.
(a) of cl.
(h) but the same land holder should continue to be landholder on the date immediately preceding the date of vesting (i.e. the identity of the disabled land holder or landholders on both the dates and the land holder or land holders seeking the benefit or protection of the provision on the date immediately preceding 1.7.1952 must, remain unchanged) and this requirement was not satisfied in this case.
The question is whether on true construction of the provision such a requirement can be read into the said provision ? In Smt.
Maya vs Raja Dulaji and others (supra) the facts were that the disputed plots belonged to one Bijain and were inherited on his death by his widow Smt.
Lakshmi and when Smt.
Lakshmi died her minor unmarried daughter Kumari Maya became the land holder.
Her elder sister Saheb Kunwar acting as her guardian executed a registered lease of the plots in favour of the plaintiffs (Ram Charan and others) on 15.10.1947 for a period of five years (a case falling under sub cl.
(b) of cl.
Later on Maya was also married to her 374 sister 's husband Thakurdas who was admitted to the holding as co tenant with Maya, with the consent of the Zamindar in the year 1948.
Thus on the date of vesting (1.7.1952) both Maya (who was still minor and disabled person) as well as her husband Thakurdas were the land holders of the plots in question.
The lessee plaintiffs filed a suit in the year 1954 for a declaration that they had become Adhivasis of the land on the coming into force of the U.P.Z.A. and L.R. Act and had subsequently acquired Sirdari rights on the passing of the U.P. Act XX of 1954 The suit was decreed by both the Courts below and hence Maya defendant preferred a second appeal to the High Court.
The question raised for determination was whether for the purposes of section 21 ( 1) (h) the disability of the landholders who were in existence on the date of vesting was material or the disability of the land holders who let out the land was a deciding factor? The Court noticed that section 21(1) (h) had been introduced in the Act for the first time by U.P. Act XVI of 1953 with retrospective effect from July 1, 1952 and was later on amended by U.P. Act XX of 1954 and has thereafter continued in its present form.
Section 21(1) (h), as originally enacted, in express terms required that "the land holder or if there are more than one landholder all of them were person or persons belonging, both on the date of letting and on the date immediately preceding the date of vesting, to any one or more of the classes mentioned in sub section
(2) of section 10 or cl.
(viii) of sub section
(I) of section 157".
As a result of the amendment made by Act XX of 1954 the words "both on the date of letting and on the date immediately preceding the date of vesting" were omitted.
In other words, by the amendment the requirement that disability of the land holder should subsist on the date immediately preceding the date of vesting was deleted.
The Full Bench accepted the position that for purposes of section 21(1) (h), in its present form, the disability of the land holder need not continue or subsist on the date immediately preceding the date of vesting and might cease on or before the date of vesting but took the view that in the case before it there were two land holders on the date immediately preceding the date of vesting, namely, Smt.
Maya and her husband Thakurdas, that a new body of 'land holders ' had come into existence subsequent to the date of letting and that all of them were not land holders who had let out the land as disabled person and, therefore, the plaintiffs became Adhivasis and the defendants were not entitled to the benefit of section 21(1) (h) of the Act.
In other words, the Full Bench has been of the view that for purposes of section 21(1) (h) it is necessary that the land holders on the date immediately preceding the date of vesting must be the same persons as those who let out the 375 land and suffered from disability on the date of letting, and also on A April 9, 1946 in case the letting was before that date.
In other words, the identity of the land holder or land holders must remain unchanged up to the date of vesting.
For reading such a requirement into the provision the Full Bench has given two reasons: (a) that such a requirement arises on construction of certain words used in cl.
(h) (vide: para 17 of the Judgment) and (b) that the protection given to a disabled landholder was intended to be a personal protection granted to the very individual who let out the land as a disabled person and this was warranted by a historical survey of parallel provisions contained in the preceding Tenancy Laws in U.P. (vide: Para 19).
According to the Full Bench the crucial words used in cl.
(h) are "where the landholder or if there are more than one land holder all of them were person or persons belonging" to any one or more of the classes of disabled persons under section 157(1) and the Full Bench has reasoned "the word 'are ' and the word 'them ' together with the word 'were ' in the aforementioned phrase clearly show that the intention of the Legislature was that on the date of vesting the 'land holder ' should be the very person who was the land holder on the relevant dates, to earn the benefit of cl.
(h) of section 21(1)".
The Court observed that section 21(1) (b) could bear the interpretation suggested by counsel for Smt.
Maya only if the words 'or their predecessor in interest ' were added before the words "all of them".
The Court has further stated that historical survey of the parallel provisions contained in the preceding Tenancy Laws showed that the protection given to a disabled person had always been in the nature of a personal protection granted to the very individual who let out the land as a disabled land holder and the protection ceased to be available when the identity or personality of that land holder is changed and in that behalf reliance was placed on certain provisions of the Agra Tenancy Act, 1926 and U.P. Tenancy Act, 1939.
In our view neither reason holds good for sustaining the literal construction placed upon the provision by the Full Bench.
It is true that cl.
(h) contains the phrase "where the land holder or if there are more than one landholder, all of them were persons belonging" to any one or more of the classes mentioned in section 157(1), but for arriving at the correct interpretation of this crucial phrase it is necessary to have regard to the definition of 'landholder ' and the provisions of section 157 of the Act with which section 21(1) (h) is inter connected.
376 Under section 3(26) of the Act, the definition of 'landholder ' as given in the U.P. Tenancy Act 1939 has been adopted since the expression is not defined in the Act.
That expression has been defined in section 3(11) of the U.P. Tenancy Act 1939 thus: "Landholder" means the person to whom rent is or, but for a contract express or implied would be, payable.
" This definition must be read in light of section 3(1) of that Act which runs thus: "All words and expressions used to denote the possessor of any right, title or interest in land, whether the same be proprietary or otherwise, shall be deemed to include the predecessors and successors in right, title or interest of such Person." In other words, the expression 'landholder ' who obviously is a possessor of interest in land under section 3(11) means a person to whom rent is payable, and under section 3(1) by legal fiction it shall include his predecessor in interest as also successor in interest to whom the rent was or is payable.
It is such definition that will have to be read in the U.P.Z.A. and L.R. Act wherever that expression occurs.
It is thus obvious that the expression 'landholder ' occurring in section 21(1) (h) must mean a person to whom rent is payable and by fiction would include his predecessor in interest.
Read in this light there would be no question of adding the word predecessor in interest of the land holder in section 21(1) (h) as that would be implicit in the term 'landholder ' on account of the deeming provision of section 3(1) read with section 3(11) of the Tenancy Act, 1939.
It does appear that this aspect of the matter was not brought to the notice of the Full Bench when it construed the concerned crucial phrase.
Moreover after the amendment effected by Act XX of 1954 the thrust of cl.
(h) is on the landholder or landholders being disabled persons on the material dates only.
Further section 157(1) permits leases by disabled persons and says that a Bhumidhar or an Asami holding land in lieu of maintenance allowance under section 11, who is a disabled person falling under any of the clauses (a) to (g), may let the whole or any part of his holding; and the proviso thereto is very important which runs thus: "Provided that in the case of a holding held jointly by more persons than one, but one or more of them but not 377 all are subject to the disabilities mentioned in clause (a) to (g), the person or persons may let out his or their share in the holding." And sub section
(2) provides that where any share of a holding has been let out under the aforesaid proviso the Court may on an application of the Asami or the tenure holder determine the share of the lessor in the holding and partition the same.
Having regard to the aforesaid proviso under which even in the case of a joint holding a lease of his share by a disabled land holder is permissible and the same is liable to be separated by a partition it is obvious that the expression "all of them" must refer to all such land holders who were disabled land holders on the material dates.
When under the proviso to s 157(1) a lease of his share by a disabled land holder in joint holding (held alongwith a non disabled person) is expressly permitted and under section 157(2) the Court has to determine such share of the disabled lessor and partition the same on an application being made in that behalf, it is difficult to accept that the Legislature intended to deprive the protection of section 21(1) (h) to such disabled land holder simply because on the date immediately preceding the date of vesting such land holder comes to hold the land jointly with some other non disabled land holder.
In other words on the facts found in the Full Bench case when on the date of letting the entire holding belonged to Smt.
Maya who was a disabled person and on the date of vesting she alongwith her husband Thakurdas (a non disabled person) became joint holder, could Smt.
Maya at any rate to the extent of her share in the joint holding be denied the benefit of section 21(1) (h) notwithstanding the proviso to section 157(1) and section 157(2) being in the Statute ? The answer is obviously in the negative.
In fact in view of the fact that on the material date (being the date of letting) the entire holding belonged to Smt Maya the disabled person, and having regard to the deeming provision which has to be read in the definition of 'landholder ' and having regard to the thrust of amended cl.
(h) which does not require that the successor in interest be a disabled person on the date of vesting, the benefit of section 21 (1) (h) should have been extended or made available in respect of the entire holding.
In other words, on true construction of the crucial phrase occurring in cl.
(h) it is not possible to read into the provision the additional requirement, namely, that the identity of the land holder or land holders must remain unchanged up to the date of vesting.
378 Coming to the second reason the Full Bench has observed that a historical survey of parallel provisions of the Agra Tenancy Act 1926 and U.P. Tenancy Act, 1939 supported the conclusion that protection was granted only to the very individual who let out the land as a disabled land holder and the protection ceased when the identity of the personality of that land holder changed and in that behalf reference was made to section 29(6) and (7) of the former Act and section 41 (2) of the latter Act.
Now apart from the fact that the scheme of the U.P.Z.A. and L.R. Act is different from these two earlier enactments, a careful analysis of the two provisions in the earlier enactments will clearly show that in each of the provisions express words had been used conferring personal rights on the individuals concerned which is not the case with section 21(1) (h) of the Act.
Having regard to the above discussion we are of the opinion that the view taken by the Full Bench of Allahabad High Court in Smt.
Maya vs Raja Dulaji and others (supra) does not represent the correct construction of section 21(1) (h) of the Act.
On true construction of the said provision in our view, the benefit thereof would be available to the land holder on the date of vesting, if the same landholder or his predecessor existing on the material dates was a person or persons belonging to one or more of the classes mentioned in section 157(1) of the Act.
Since in the instant case, which falls under sub cl.
(a) of cl.
(h), on the date of actual letting Smt.
Ram Kali was disabled person and since on the next material date, namely, April, 9 1946 Dan Sahai (successor in interest of Smt.
Ram Kali) was also a disabled person, the land holder on the date of vesting, who incidentally happened to be Dan Sahai, would be entitled to the benefit of section 21(1) (h) and the respondents (successors of Uttam Singh and Murli Singh) would remain Asamis and cannot be said to have become Sirdars.
We might mention that after the arguments in these appeals were concluded and our Judgment was ready for pronouncement we were informed that in a later case Dwarika Singh vs Dy.
Director of Consolidation (l) a larger Bench of S Judges of the Allahabad High Court has, by majority, overruled the view taken in Smt.
Maya 's case.
379 In the result the appeals are allowed, the orders of the Division Bench in Special Appeals Nos.
424 425 of 1971 are set aside and for reasons given by us above, the decision of the learned Single Judge dated May 10, 1971 is restored.
We direct that each party will bear its own costs.
section R. Appeals allowed.

summary/full:
One Smt.
Ram Kali, widow of Tikam Singh, was the land holder of the agricultural lands in dispute situated in villages Agaota and Khaiya Khera in District Bulandshahr (U.P.).
On June 14, 1915 Smt.
Ram Kali, who was a Sirdar and a "disabled person" falling within section 157(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, executed a registered deed of lease fora period of five years in favour of Uttam Singh and Murli Singh (the predecessors in title of the respondents) but before the expiry of the period of five years she died in August, 1945 and Dan Sahai, who was also "disabled person" within the meaning of section 157(1) of the Act, (her husband 's real brother and predecessors in title of the appellants) inherited her interest.
After the expiry of the period of registered lease Uttam Singh and Murli Singh continued to hold the lands as tenants from year to year under Dan Sahai.
In consolidation proceedings a question arose, whether Uttam Singh and Murli Singh, who were lessees (adhivasis) under Smt.
Ram Kali and Dan Sahai acquired the status of Sirdars, being entitled to be treated so under section 240B of the Act or they remained Asamis of the plots in dispute.
The Division Bench of the Allahabad High Court, relying on the earlier view taken by its Full Bench in Smt.
Maya vs Raja Dulaji and others , decided the appeals in favour of the respondents by holding that they were not Asamis but had become Sirdars.
Hence the appeals by certificate by successors in title of Ram Kali and Dan Sahai.
Allowing the appeals, the Court ^ HELD: 1.
On true construction of section 21(1)(h) of the U.P. Zamindari Abolition and Land Reforms Act the benefit thereof would be available to the land holder on the date of vesting, if the same land holder or his predecessor existing on the material dates was a person or persons belonging to one or more clauses mentioned in section 157(1) of the Act.
[378 C D] Since, in the instant case, which falls under sub clause (a) of clause (h) on the date of actual letting Smt.
Ram Kali was a "disabled person" and since on the next material date, namely, April 9,1946 Dan Sahai (successor in interest of Smt.
Ram Kali) was also a disabled person, the land holder on the date of vesting who incidentally happened to be Dan Sahai would be entitled to the benefit of section 21(1)(h) and the respondents (successors of Uttam Singh and 369 Murli Singh) would remain Asamis and cannot be said to have become Sirdars within the meaning of section 240B of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
[378 E F] 2.
Section 21(1)(h) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 provides that every person occupying or holding land in any one of the capacities mentioned in clause (h) on the date immediately preceding 1 7 1952 shall be deemed to be an Asami thereof notwithstanding anything contained in the Act, if the land holder or if there are more than one all of them were "disabled persons" within the meaning of section 157(1) both on the date of letting as well as on April 9, 1946 where the letting has taken place prior to April 9, 1946 or were disabled persons on the date of letting if the letting has occurred after April 9, 1946.
[373 A B] 3:1.
It is true that clause (h) contains the phrase "where the land holder or if there are more than one land holder all of them were person or persons belonging" to any one or more than one of the clauses mentioned in section 157(1) of the Act.
Under section 3(26) of the Act, the definition of "landholder" as given in the U.P. Tenancy Act, 1939 has been adopted since the expression is not defined in the Act.
The expression "land holder" who obviously is a possessor of interest in land under section 3(11) of the U.P. Tenancy Act, 1939 means a person to whom rent is payable, and under section 3(1), ibid.
by legal fiction it shall include his predecessor in interest as also successor in interest to whom the rent was or is payable.
It is such definition that will have to be read in the U.P. Zamindari Abolition and Land Reforms Act wherever that expression occurs.
Therefore the expression "land holder" occurring in section 21(1)(h) of the Act must mean a person to whom rent is payable and by fiction would include his predecessor in interest.
Read in this light there would be no question of adding the words predecessor in interest of the land holder in section 21(1)(h) as that would be implicit in the term "land holder" on account of deeming provision of section 3(1) read with section 3(11) of the U.P. Tenancy Act, 1939.
[375 G H, 376 A, D F] 3:2.
Section 157(1) of the U P. Zamindari Abolition and Land Reforms Act permits leases by disabled persons and provides that a Bhumidar or on an Asami holding land in lieu of maintenance allowance under section 11, who is a disabled person falling under any of the clauses (a) to (g), may let the whole or any part of his holding, "provided that in the case of a holding held jointly by more persons than one, but one or more of them but not all are subject to the disabilities mentioned in clauses (a) to (g), the person or persons may let out his or their share in the holding".
Having regard to the proviso under which even in the case of a joint holding a lease of his share by a disabled land holder is permissible and the same is liable to be separated by a partition, the expression "all of them" must refer to all such land holders who were disabled land holders on the material dates.
When under the proviso to section 157(1) a lease of his share by a disabled land holder in joint holding (held along with a non disabled person) is expressly permitted and under section 157(2) the Court has to determine such share of the disabled lessor and partition the same on an application being made in that behalf, it cannot be said that the Legislature intended to deprive the protection of section 21(1)(h) to such disabled land holder simply because on the date immediately preceding the date of vesting such land holder comes to hold the 370 land jointly with some other non disabled land holder.
On true construction of the crucial phrase occurring in clause (h) it is not possible to read into the provision the additional requirement, namely, that the identity of the land holder or land holders must remain unchanged up to the date of vesting.
[376 G H, 377 A, B D, G H] Further the scheme of the U.P. Zamindari Abolition and Land Reforms Act is different from the Agra Tenancy Act, 1926 and U.P. Tenancy Act, 1939.
In each of the two provisions of these two Acts express words have been used conferring personal rights on the individuals concerned which is not the case with section 21(1)(h) of the Zamindari Abolition and Land Reforms Act.
[378 B C] Smt.
Maya vs Raja Dulaji and Ors.
[1 over ruled.
Dwarika Singh vs Dy.
Director of Consolidation All W.C. 213 1981 All.
L.J. 484 approved.


judgement:
: Special Leave Petition (Criminal) No. 3459 of 1980.
From the judgment and order dated the 1st August, 1980 of the High Court of Calcutta in Criminal Appeal No. 18 of 1980.
A. P. Chatterjee, A.K. Ganguly and B. K Chatterjee for the Petitioner.
The respondents, who are all Police officers, were tried by the learned Judge, City Sessions Court, Calcutta, under section 302 read with section 34 of the Penal Code, on the charge that at about 10.00 p.m. On November 11, 1970 they, along with Bibhuti Chakraborty the then Deputy Commissioner of Police (North Division), P. R. Dey, the then Assistant Commissioner of Police (N.S.) and some others, caused the death of Ranjit Chakraborty and Samir Chakraborty by causing them gunshot injuries.
The case of the prosecution is that the deceased Ranjit and his brother Samir were sitting outside their house when three police vehicles carrying the respondents and other Police officers, numbering about 15 or 20 in all, suddenly stopped in front of the house.
The Police officers, led by Bibhuti Chakraborty, rushed towards them and their elder brother Benoy, with revolvers in their hands.
Ranjit disclosed that he was a constable of the Calcutta Police and Samir said that he was an N. V. F. cadet.
Bibhuti Chakraborty then fired a shot from his revolver at Ranjit from a point blank range.
Respondent 2, Chitta Ranjan Ganguly, and respondent 4, Bimal Thakur pursued Ranjit who had in the meanwhile rushed into his house.
They dragged him out of the house, whereupon respondent 4 fired a shot at him.
The other Police officers, including some of the respondents, also fired at Ranjit.
In the meantime, the other brother Samir, who was trying to get into the house, was caught hold of by 363 some of the respondents and respondent 1, Shew Mangal Singh, fired a shot at him.
Samir and Ranjit were thereafter dumped in to a Police jeep and the convoy of the Police officers went to a place near Rajarghat on the bank of the river Hooghly.
Samir was crying in agony.
Some of the Police officers who were sitting in an Ambassador car ordered that Samir 's voice should be silenced.
Thereupon respondent 3 Anil Maitra: who was sitting in a jeep, fired a shot at him.
Ranjit and Samir were then taken to R. G. Kar Hospital, where Ranjit was declared dead.
Samir died within a few minutes thereafter, before any medical assistance could be given to him.
Their brother Benoy was taken into custody by the Police Officers and was produced before a Magistrate on the following day, when he was released on bail.
The defence of the respondents is that they were on patrol duty Led by Bibhuti Chakraborty, the Deputy Commissioner of Police.
When the police party entered Shyampukur Street, they were attacked by some persons, as a result of which respondent 1 Shew Mangal Singh was injured.
He was immediately removed by respondent 2 and P. R. Dey, the Assistant Commissioner of Police, to the R.G. Kar Hospital.
Thereafter the Deputy Commissioner of Police gave firing orders, as a result of which Ranjit and Samir received injuries.
The contention of respondents 1 and 2 is that they were implicated falsely in the case after an attempt to pressurise them into deposing against the Deputy Commissioner had failed.
The prosecution was initiated on the basis of a private complaint filed on December 22, 1970 by Benoy Chakraborty (P. W. l).
In addition to the four respondents, Deputy Commissioner Bibhuti Chakraborty and Assistant Commissioner P. R. Dey were also included in the array of the accused.
The learned Additional Chief Metropolitan Magistrate, Calcutta, issued process against the respondent but refused to do so against the two other officers on the ground of want of sanction for their prosecution under section 197 of the Code of Criminal Procedure.
The complainant applied for sanction under section 197 Cr. P. C., for the prosecution of the two officers but his application was rejected.
In July 1977, after the change of Government, the complainant filed another application for sanction, which was granted on August 4, 1977.
But the officers filed a petition in the High Court under Article 226 of the Constitution challenging the order of sanction.
A learned single Judge dismissed that petition but in 364 appeal, a Division Bench of the High Court set aside the order sanctioning prosecution on the ground of mala fides on the part of the State Government and on the ground of violation of the rules of natural justice.
There the matter rested in so far as those two officers are concerned.
The learned trial Judge convicted the respondents under section 302 read with section 34 of the Penal Code and sentenced them to life imprisonment.
In an appeal by the respondents, the High Court has acquitted them, against which the State of West Bengal has filed this Special Leave Petition under Article 136 of the Constitution.
The learned Advocate General of the State of West Bengal, who appeared to defend the appeal in the High Court, contended there that this is not a normal case of murder but a rather unique one in which the protectors of law and order had themselves become predators and, in the circumstances, there were bound to be loop holes in the prosecution case.
It was urged in the High Court that one should not, therefore, expect or insist upon the same standard of proof as in other criminal cases.
In regard to the discrepancies in the evidence of the prosecution witnesses, it was urged by the learned Advocate General in the High Court, that the witnesses were deposing nearly nine years after the date of the incident, as a result of which there were bound to be discrepancies in their evidence.
On the question of application of section 34, it was urged in the High Court on behalf of the State Government that even if it may not be possible to apportion the guilt amongst the accused, their mere presence at the spot would establish their involvement in the offences with which they were charged.
The judgment of the High Court shows that in the year 1970 71 certain parts of the State of West Bengal, including the City of Calcutta, were passing through a critical period of lawlessness on account or the "Naxal Movement".
A sitting Judge of the High Court and a member of the Higher Judicial Service were killed in Calcutta during that period.
Political leaders, businessmen and members of the Police Force also met with their death during that period of turbulence.
Benoy Chakraborty (P. W. l) admitted in his evidence to have stated in the committal Court that newspapers had reported seven or eight murders between August 1970 and April 1971.
Manicklal Ghose (P. W. ') stated in his evidence that many 365 murders were committed during 1970 71 within the jurisdiction of A the Shyampukur Thana.
On an analysis of the prosecution evidence, the High Court found it impossible to hold that the incident in question had happened in the manner alleged by the prosecution.
According to the High Court, the police, while on patrol duty, were compelled to open fire after respondent l, Shew Singh, received injuries as a result of the mob violence.
Since the orders given by the Deputy Commissioner to open fire were justified, respondents were bound to obey the lawful orders of their superior officer.
On this ground alone, according to the High Court, the accused were entitled to be acquitted.
Learned counsel who appears for the State of West Bengal argued this Special Leave Petition for quite some time and in addition, at our direction, he filed written submissions in support of the petition.
We adjourned the matter to enable us to go through those submissions.
Having done so we are unable to hold that this is a fit case for granting leave to the State Government to appeal against the judgment of the High Court.
A very interesting and important question was raised in the High Court as to whether the command of a superior officer to open fire affords a complete defence to a subordinate officer if, while acting in the execution of that command he causes injury or death.
The High Court has referred in its judgment to passages from Cross E and Jones ' "Introduction of Criminal Law" (8th edition, page 371); Granville William 's Text Book of Criminal Law (1978 edition, page 408); Smith & Hogan 's Criminal Law (1978 edition, page 209); Colin Howard 's Criminal Law (page 424) and to a South African Case.
It is unnecessary for us to go into that question for the simple reason that we are of the view that the High Court was justified in coming to the conclusion that the particular situation warranted and justified the order issued by the Deputy Commissioner of Police to open fire.
If that order was justified and is therefore lawful, no further question can arise as to whether the respondents, who acted in obedience to that order, believed or did not believe that order to be lawful.
Such an enquiry becomes necessary only when the order of the superior officer, which is pleaded as a defence, is found not to be in conformity with the commands of the law.
Section 76 of the Penal Code provides that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith 366 believes himself to be, bound by law, to do it.
The illustration to that section says that if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law, he commits no offence.
The occasion to apply the provisions of the section does not arise in the instant case since the question as to whether the accused believed in good faith on account of a mistake of fact that he was bound by law to do the act which is alleged to constitute an offence, would arise only if, to the extent relevant in this case, the order or command of the superior officer is not justified or is otherwise unlawful.
Since the situation prevailing at the scene of the offence was such as to justify the order given by the Deputy Commissioner of Police to open fire, the respondents can seek the protection of that order and plead in defence that they acted in obedience to that order and therefore they cannot be held guilty of the offence of which they are charged.
That is the purport of the illustration to section 76.
But considering that a little politics appears to have got mixed up with the trial of this case, it would be more satisfactory not to rest our judgment on this aspect of the matter and to consider whether the evidence led by the prosecution is such on which a conviction can safely be founded.
The particular night on which the incident took place was cloudy and it was drizzling.
On the question whether the witnesses were able to identify the respondents, it is very difficult to take them at their word when their evidence suffers from the various contradictions to which the High Court has referred.
The witnesses were deposing to the incident nearly nine years later and it appears that the made good the lapses of memory by giving a free play to their imagination.
Their evidence leaves much to be desired and is insufficient to establish the complicity of the respondents in causing the death of Ranjit and Samir Chakraborty.
Benoy lodged his complaint (Ext. 2) more than a month after the incident and yet there are material discrepancies between what he stated in the complaint and what he said in his evidence.
Manick is an important witness from the point of view of the prosecution because he was in the company of Benoy from the beginning of the incident until they were released on bail the next day.
It is surprising that in the list of witnesses filed by Benoy along with his complaint, Manick 's name does not figure at all.
Towards the end of his written submissions, learned counsel for the State of West Bengal has extracted passages from a judgment 367 of this Court in section section Bobade vs State of Maharashtra(1) to the effect A that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent and that if unmerited acquittals become general, they tend to lead to a cynical disregard of the law.
With respect, we share this opinion but do not appreciate its relevance here.
Courts must take equal care to ensure that the innocent are not convicted and the guilty are not acquitted but, what the High Court has done is to acquit the innocent.
Relying upon the observations in section section Bobade, the learned counsel has stated further that the judicial instrument has a public accountability and that the history will never forgive "us" if police officers, undoubtedly guilty of murder, are acquitted "lightheartedly".
We cannot agree more.
But the snag lies in the self righteous assumption that respondents are "undoubtedly guilty of murder" or that they have been acquitted by the High Court "lightheartedly".
Respondents are undoubtedly not guilty of murder and the High Court ' s judgment reflects its serious concern for justice.
Judgments of acquittal are not to be condemned as "lighthearted" for the reason that the Government considers that it has a stake in the conviction of the accused.
For these reasons, we dismiss the Special Leave Petition.
N V. K. Petition dismissed.

summary/full:
The respondents were police officers.
The prosecution alleged that when the deceased and his brother were sitting outside the house three police vehicles carrying the respondents and other police officers suddenly stopped in front of their house and that a police officer rushed towards them and when the deceased disclosed his identity the officer fired at point blank range.
The shot having missed him, he rushed in the house.
Pursuing him respondents 2 and 4 dragged him out of the house, whereupon respondent 4 fired a shot at him.
In the meanwhile, the other brother, who was trying to get into the house was caught hold of by some of the respondents and respondent 1 fired at him.
The two brothers were thereafter dumped into a police jeep, and the convoy of police officers departed from the scene of the occurrence.
Both the brothers were taken to the hospital where the deceased was declared dead on the spot and his brother died, before any medical assistance could be given to him.
The defence of the respondents was as follows: that while they were on patrol duty led by one of the officers, they were attacked by some persons, as a result of which respondent 1 was injured and was removed to the hospital.
When fire was opened under orders of the officer the two deceased received injuries, and that respondents 1 and 2 were falsely implicated after an attempt to pressurise them into deposing against the officer had failed.
Prosecution was initiated on the basis of a private complaint filed by the third brother of the deceased implicating the respondents and two officers.
No action was taken against the two officers for want of section 197 of the Code of Criminal Procedure.
While the trial judge convicted and sentenced the respondents, the High Court acquitted them.
Before the High Court it was contended on behalf of the 361 State that this was a case in which the protectors of law and order had become A predators and in the circumstances the Court should not, insist upon the same standard of proof as in other criminal cases, and as the witnesses were desposing nearly nine years after the date of the incident there was bound to be discrepancies in their evidence.
Taking note of the unsettled political conditions prevailing in Calcutta during the time, and on an analysis of the prosecution evidence, the High Court found it impossible to believe that the incident had happened in the manner alleged by the prosecution.
Believing the defence version that there was mob violence which resulted in injuries to Respondent I and that in the circumstances the respondents were bound to obey the orders given by their officer, the High Court acquitted them.
Dismissing the Special Leave Petition of the State, ^ HELD: 1.
If the order to open fire was justified as found by the High Court and is therefore lawful, no further question can arise whether the respondents, who acted in obedience to that order, believed or did not believe it to be lawful.
[365 F G] In the instant case since the situation prevailing at the scene of the offence was such as to justify the order given by the officer to open fire, the respondents could plead in defence that they acted in obedience to that order and therefore they could not be held guilty of the offence of which they were charged.
[366 C] 2.
A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent and that if unmerited acquittal become general, they tend to lead to a cynical disregard of the law.
Courts must take equal care to ensure that the innocent are not convicted and the guilty are not acquitted.
[367 A B] E In the instant case, what the High Court has done is to acquit the innocent.[367 B] S.S. Bobade vs State of Maharastra ; referred to.
It is a self rigteous assumption to argue that the respondents are "undoubtedly guilty of murder" or that they have been acquitted by the High Court "light heartedly".
Respondents are undoubtedly not guilty of murder.
The High Court 's judgment reflects its serious concern for justice.
Judgments of acquittal are not to be condemned as "light hearted" for the reason that the Government considers that it has a stake in the conviction of the accused.
[367 C D] In the instant case the particular night on which the incident took place was cloudy and it was drizzling.
It is very difficult to take the witnesses at their word when their evidence suffers from various contradictions.
The witnesses were deposing to the incident nearly nine years later.
Their evidence is insufficient to establish the complicity of the respondents in causing the death of the deceased.
The surviving brother lodged the complaint more than a month after the incident.
The name of PW. 2 an important witness who was in the company of P.W. 1 from the beginning of the incident was not mentioned in the complaint.
[366 E H] 362


judgement:
ivil Appeal No. 353 of 1 969.
From the judgment and decree dated the 19th/20th July, 1965 of the High Court of Gujarat at Ahmedabad in First Appeal No. 584 of 1960.
M.N. phadke, section C. Patel and R.N. Poddar for the appellant.
552 D.V. Patel, R.A. Shraff, Gopal Subramaniam and D.P. Mohanty for the respondent.
The order of the Court was delivered by KOSHAL, J. The sole respondent in this appeal died on the 10th December, 1978.
He was also arraigned as an appellant in the connected appeal (Civil Appeal No. 2132 of 1977) in which an application was made on the 20th February 1979 stating the factum and the date of the demise.
A copy of that application was delivered on the date last mentioned to the clerk of learned counsel for the appellant State, who, however, took no step to move the Court for having the legal representatives of the deceased respondent brought on the record in the present appeal till the 29th August, ]979 when an application was made for that purpose, but without being accompanied by any affidavit containing averments as to why the inordinate delay in filing the application should be condoned.
An affidavit of the type just mentioned was filed in Court on 4th March, 198().
It is common ground between the parties that on the death of the sole respondent to the appeal the right to sue survived to his legal representatives.
No application having been made within 90 days of the death, the appeal abated on the 11th March.
1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date.
(Article 121 of the Limitation Act).
The application actually made in that behalf was thus time barred by more than 3 months and a half.
Mr. Phadke, learned counsel for the appellant does not dispute this proposition.
He urges.
however, that the delay in making the application last mentioned should be condoned and the abatement of the appeal set aside.
No sufficient cause, however, for the condonation of the delay is made out from any material on the record.
As pointed out earlier, the clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 to move the Court till the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place.
His knowledge of the death of the respondent must be attributed to the appellant State 553 also and his negligence in not moving the Court in time must be deemed to be that of the appellant.
Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay.
The contention is wholly without substance.
The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into.
No grounds for the condonation of the delay having been made out we refuse to set aside the abatement.
The appeal is accordingly dismissed.

summary/full:
Dismissing the appeal by special leave, the Court ^ HELD: The abatement stands in the way of the appeal being heard on merits.
In the instant case, (a) on the death of the sole respondent to the appeal the right to sue survived to his Legal representatives; (b) no application having been made within 90 days of the death.
the appeal abated on the 11th of March, 1979 and an application for having the abatement set aside could have been made within the period of 60 days following that date, under Article 121 of the Limitation Act; and (c) the application actually made to set aside the abatement was time barred by more than three months and a half.
The clerk of the learned counsel for the appellant was served with a copy of the application dated 23rd February, 1979 on that date itself and no reason, good, bad or indifferent is assigned for the failure of that counsel right from the 20th February, 1979 to the 29th August, 1979 either for having the legal representatives of the deceased brought on the record or for having the abatement set aside after it had taken place.
His knowledge of the death of the respondent must be attributed to the appellant State also and his negligence in not moving the Court in time must be deemed to be that of the appellant.
[652 E H, 653 A, B]