judgement:
Appeal No. 4916 of 1991 From the Judgment and Order dated 5.4.1991 of the Alla habad High Court in Second Appeal No. 3395 of 1978.
Manoj Swarup and Ms. Lalita Kohli for the Appellants.
571 B.S. Nagar for Goodwill Indeevar for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
Special leave 'is granted and the appeal taken up for final hearing and disposed of by this judgment.
We have heard Sri Manoj Swamp, learned counsel for the Appellant and Shri Goodwill Indeevar for the Respondent.
Appellant was Defendant in a suit for specific performance.
He seeks special leave to appeal to this Court from the judgment and order dated 5.4.1991 of the High Court of Allahabad in Second Appeal No.3395 of 1978 decreeing, in reversal of the decrees of dismissal entered by the two courts below, specific performance of an agreement for sale of land. 3.
On 3.7.1973 Respondent Natthu Singh sold Plot No.195 measuring 5 bighas and 18 biswas and Plot No.196 measuring 9 bighas and 8 biswas of Gulistapur Village, Pargana Dadri to the appellant for a consideration of Rs. 15,000.
On the very day, i.e., 3.7.1973, another agreement was entered into between the parties whereunder Appellant agreed to reconvey the said properties to the Respondent against payment of Rs. 15,000/ within two years.
On 2.6.1975, well within the period of two years stipulated for the performance of the agreement to re sell, Respondent instituted the suit for specific performance alleging that despite offer of performance and tendering the price, Appel lant, with the dishonest intention of appropriating the properties to himself refused reconveyance.
The Appellant contested the suit principally on the ground that Respondent was never ready and willing to perform the contract and that Respondent himself was in breach.
The trial court framed the necessary and relevant issues stemming from the pleadings and on its own apprecia tion of the evidence on record came to find against the Respondent that he was ready and willing to perform the contract; and that the agreement, being one of reconveyance, time was of its essence.
The suit was accordingly dismissed.
Respondent 's first appeal before the learned IInd Additional District Judge, Bulandshahar was also unsuccessful.
However, in Respondent 's second appeal, the High Court reversed the findings of the two courts below and allowing the appeal held that Respondent Plaintiff was ready and willing to perform the contract; that the Appellant was the party in breach; and that, therefore, Respondent was entitled to a decree.
This decree is assailed in this ap peal.
572 6.
Sri Manoj Swarup appearing in support of the appeal urged two contentions; the first is that the High Court was in error in embarking upon a re appraisal of the evidence in a second appeal to distrub concurrent findings of fact that Respondent was not willing and ready to perform the con tract.
The second contention is that contract itself became incapable of specific performance in view of the fact that during the pendency of second appeal the State had initiated proceedings for compulsory acquisition of the suit proper ties and the subject matter of the suit itself ceased to be available.
Counsel says the power to give compensation as an alternative to specific performance did not extend to a case in which the relief of specific performance had itself become impossible.
On the first question, as to the readiness of the Respondent to perform his obligations, the High Court no ticed that on 30th January, 1974 even before institution of the suit Respondent and his brother had sold another proper ty belonging to them for a price of Rs. 30,000 and that Respondent had the necessary wherewithal to perform his part of the bargain.
The High Court held: ".
Thus, the plaintiff admittedly had re ceived Rs. 15,000/ on 30.1.
1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the saledeed and also expressing his readiness and willingness.
There is no evi dence on the record that between 30.1.1974 and the date of suit or thereafter the plaintiff had parted with this money.
" The High Court also noticed that the two notices dated 23.3. 1974 and 6.5.
1975 respectively issued by the Respond ent to the Appellant before the suit contained the averments that he was ready and willing to perform the contract.
The notices were, no doubt, not actually served on the appellant as they had come back unserved upon the alleged refusal by the appellant to accept them.
The High Court relied upon the averments in the notices which could be treated as a part to the plaint having been referred to and relied upon therein.
In our opinion, the High Court was right in its view.
The notices must be presumed to have been served as contemplated by Section 27 of the General .Clauses Act.
As to the jurisdiction of the High Court to reappreciate evi dence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non considera tion of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
We find no substance in the first contention.
573 9.
The second contention is, however, not without its interesting aspects.
During the pendency of the second appeal, the properties were acquired by the State for a public purpose.
This is not disputed.
It would appear that a compensation of Rs. 4 lakhs or thereabouts has been deter mined.
That sum, along with the generous solatium and the rates of interest provided by the statute would now be a much larger amount.
Before the High Court, Appellant sought to rely upon the decision of this Court in Piarey Lal vs Hori Lal, [1977] 2 S.C.R. 915.
That was a case where in proceedings of consolidation the subject matter of an agree ment to sell was allotted to a person other than the vendor, the relief of specific performance was held not to survive.
The High Court rightly held that pronouncement was distin guishable and inapplicable to the present controversy.
As to the relief available to a plaintiff where the subject matter was acquired during the pendency of a suit for specific performance the High Court said: ".
The learned counsel for the respondent has vehemently urged that after the land has been acquired its corpus has ceased to exist and no decree for specific performance can now be granted.
In my opinion with the acquisition of)the land plaintiffs rights do not get extinguished in totality.
The appellate court always suitably mould the relief which the circumstances of the case may require or permit.
The power in this regard is ample and wide enough.
However, in the present case the property has not been totally lost.
What happens in the case of the acquisition is that for the property compensation payable in lieu there of is substituted. " The High Court issued these consequential directions: "If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substi tuted by a decree for realisation of compensa tion payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and inter est due thereon.
The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event ' ;the defendant shall be further liable to pay interest at the rate 574 of twelve per cent from the date of realisa tion by him to the date of payment on the entire amount realised in respect of the disputed land.
" We are afraid the approach of the High Court is perhaps somewhat an over simplification of an otherwise difficult area of law as to the nature of relief available to a plain tiff where the contract becomes impossible of specific performance and where there is no alternative prayer for compensation in lieu or substitution of specific perform ance.
While the solution that has commended itself to the High Court might appear essentially just or equitable, there are certain problems both of procedure and of substance in the administration of the law of specific relief particular ly in the area of award of an alternative relief in lieu or substitute of specific performance that require and compel consideration, especially in view of some pronouncements of the High Courts which have not perceived with precision, the nice distinctions between this branch of the law as adminis tered in England and in India.
Section 21 of the corre sponding to Section 19 of 1877 Act enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance.
Sub sections (2), (4) and (5) of Section 21 are material and they provide: "(2).
If, in any such suit, the Court decides that specif ic performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensa tion for that breach, it shall award his such compensation accordingly.
(3) [ Omitted as unnecessary.] (4) In determining the amount of any compensation awarded under this section, the Court shall be guided by the princi ples specified in Section 73 of the , 9 of 1872.
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.
Explanation The circumstance that the contract has become 575 incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section." (emphasis added) So far as the proviso to sub section (5) is concerned, two positions must be kept clearly distinguished.
If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the court will allow the amendment at any stage of the proceed ing.
That is a claim for compensation failing under Secion 21 of the and the amendment is one under the proviso to sub section (5).
But different and less liberal standards apply if what is sought by the amend ment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked.
This amendment is under the discipline of Rule 17 Order 6, C.P.C. The fact that sub section (4), in turn, invokes Section 73 of the for the principles of quantification and assessment of compensation does not obliterate this distinc tion.
The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation.
Sub section (5) seeks to set at rest the divergence of judicial opinion between High Courts whether a specific claim in the plaint is necessary to grant the compensation.
In England Lord Cairn 's (Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance.
This became necessary in view of the earlier dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach.
In common law the remedy for breach of a contract was damages.
The Equity Court innovated the remedy of specific perform ance because the remedy of damages was found to be an inade quate remedy.
Lord Cairn 's Act, 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court.
Section 2 of the Act provided: "In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addi tion to or in substitution for such specific performance and such damages may be assessed as the Court shall direct.
" 576 This is the historical background to the provisions of Section 21 of the and its prede cessor in Section 19 of the 1877 Act.
In Mohamad Abdul Jabbar & Others vs Lalmia &Others.
A.I.R (34) 1947 Nagpur 254 specific performance of an agree ment of sale dated 16th January, 1934, was sought by the institution of a suit on 15th January, 1937.
During the pendency of the suit, on 20th April, 1937, the provincial Government started land acquisition proceedings respecting the subject matter of the suit and the same was acquired.
The High Court upheld the dismissal of the suit for specific performance and referred an amendment for award of damages.
On the obvious impermissibility of specific performance the Nagpur High Court said: "We accordingly conclude that specific per formance is now impossible and we cannot decree it for "equity like nature does nothing in vain.
" We cannot hold the plaintiffs appel lants entitled to the compensation money into which the property was converted because they had no right or interest in that property. " Refusing the amendment for the relief for payment of money the High Court held: "We would not allow amendment also because on the facts found by the trial Court (with which we see no reason, whatever, to differ) we would have refused specific performance, and the claim for damages on this account would also have been negatived because damages could have been awarded only if specific performance could rightly have been claimed.
The appeal, therefore, fails and is dismissed with costs." .llm0
Support for these conclusions was sought from the oft quoted, but perhaps a little misunderstood, case of Ardeshir H. Mama vs Flora Sassoon A.I.R. 1928 Privy Council 208.
The passage in Sassoon 's case relied upon by the Nagpur High Court is this: "In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Court had granted specific perform ance, so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief, nor to a case in which that relief had become impossible.
577 The case of 52 Bombay 597 fell within the first category of cases described above under the alternative relief of damages.
This case fails within the second part where the relief of specific performance has become impossible." (emphasis supplied) The second part of the observation of the Nagpur High Court, with great respect to the learned Judges proceeds on a fallacy resulting from the non perception of the specific departure in the Indian law.
In Lord Cairn 's Act.
1858 damages could not be awarded when the contract had, for whatever reason, become incapable of specific performance.
But under the Indian law the explanation makes a specific departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff, the contract becomes incapable of specific perform ance.
Indeed, Sassoon 's case is not susceptible of the import attributed to it by the Nagpur High Court.
Sassoon 's case itself indicated the departure made in Indian Law by the Explanation in Section 19 of the 1877 Act, which is the same as the Explanation to Section 21 of the 1963 Act.
The Judicial Committee, no doubt, said that Section 19 of the 1877 Act "embodies the same principle as Lord Cairn 's Act and does not, any more than did the English Statute enable the court in a specific performance suit to award 'compensa tion for its breach ' where at the hearing the plaintiff debarred himself by his own action from asking for a specif ic decree" ', But what was overlooked was this observation of Lord Blanesburgh, "except as the case provided for in the expla nation us 10 which there is introduced an express divergence from Lord Cairn 's Act as expanded in England" (emphasis supplied ) Indeed the following illustration of the Explanation appended to Section 19 of makes the position clear" "Of the Explanation A, a purchaser, sues B, his vendor, for specific performance of a contract for the sale of a patent.
Before the hearing of the suit the patent expires.
The Court may award A compensation for the non performance of the contract, and may, if necessary, amend the plaint for that purpose When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages.
That position is common to both Section 2 of Lord Cairn 's Act, 1858 and Section 21 of the .
But in Indian Law where the contract, 578 for no fault of the plaintiff, becomes impossible of per formance section 21 enables award of compensation in lieu and substitution of specific performance.
We, therefore, hold that the second contention of Sri Manoj Swarup is not substantial either.
Learned counsel were not specific on the point whether the Respondent had actually asked for compensation in lieu of specific performance.
We may assume that it was not so specifically sought.
In order that formality in this behalf be completed, we permit the amendment here and now so that complete justice is done.
The measure of the compensation is by the standards of Section 73 of the Indian Contract.
Here again the English Rule in Bain vs Fothergill, (1874) L.R. 7 House of Lords 158 that the purchaser, on breach of the ,contract, cannot recover, for the loss of his bargain is not applicable.
In Pollock & Mulla on Contract (10th Edn.) the law on the matter is set out thus : "Where, therefore, a purchaser of land claims damages for the loss of his bargain, the question to be decided is whether the damages alleged to have been caused to him 'naturally arose in the Usual course of things from such breach '; and in an ordinary case it would be difficult to hold otherwise." [p. 663] Learned Authors adopt the following observation of Farran C.J. in Nagardas vs Ahmedkhan, : "The Legislature has not prescribed a differ ent measure of damages in the case of con tracts dealing with land from that laid down in the case of contracts relating to commodi ties" In the present case there is no difficulty in assessing the quantum of the compensation.
That is ascertainable with reference to the determination of the market value in the land acquisition proceedings.
The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.
We accordingly confirm the finding of the High Court that Respondent was willing and ready to perform the con tract and that it was the 579 Appellant who was in breach.
However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisi tion compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs.1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appel lant in respect of his services, time and money expended in pursuing the legal claims for compensation.
We may here notice one other submission of Sri Manoj Swarup.
He found fault with the operative part of the judg ment of the High Court, Which, according to Sri Manoj Swa rup, had not even provided for the payment to the appellant of Rs. 15,000 the stipulated consideration for reconveyance.
There is this apparent omission in the operative part of the High Court 's judgment.
But this is only a technicality.
The operative part granting relief should be read with the relevant prayers in the plaint itself.
But that is not of any practical significance here in as much as we have also taken this amount of Rs. 15,000 into account in somewhat generously quantifying the litigation expenses at Rs. 1,50,000 as payable to the appellant out of the sums awarded for the acquisition.
Therefore, there is no need for Re spondent to pay the sum of Rs. 15,000 additionally.
In the result there will be a decree awarding 10 the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to the quantum and the measure of the compensation being take entire amount of compensation determined for take acquisition of the suit.
properties to gather with all the solatium, accrued interest and all other payments under the law authorising the acquisition, less a sum of Rs. 1,50,000 (Rupees one lakh fifty thousand only) which shall go to the Appellant towards his services, time and amounts spent in pursuing the claims for compensa tion as well as the consideration stipulated for reconvey ance .
The sum of Rs.1,50,000 is allowed to be. paid to the Appellant on his assurance that he has not received any part of the compensation earlier.
If any amount has been received by the Appellant out of compensation awarded for the acqui sition, such sums shall go in reduction of the sum of Rs.1,50,000, the difference being for the benefit of and be paid to the Respondent additionally.
This order shall be sufficient authority for the land acquistion authorities or the Courts wherever the matter may be pending for the apportionment and payment of the compen sation for the acquisition of the suit 580 property between the Appellant and the Respondent in the manner indicated above.
These directions shall, of course, not affect or prejudice the claim of other claimants, if any, whose claims are to be determined in the said land acquistion proceedings, the assumption implicit in this apportionment being.
that there are no other claimants in the land acquisition proceedings.
If such apportionment and withdrawal is not possible, the decree in terms of this judgment shall be worked out in execution proceedings.
The decree under appeal is modified accordingly.
No costs.
T.N.A. Decree modified.

summary/full:
By an agreement dated 3.7.1973 the respondent sold two plots to the appellant for a consideration of Rs. 15,000.
By another agreement, entered into between the parties on the same day, the appellant agreed to reconvey the said proper ties to the respondent against payment of Rs. 15,000 within two years.
Within the stipulated period the respondent (Plaintiff) instituted a suit for specific performance alleging that despite offer of performance and tendering the price, the Appellant (Defendant) refused reconveyance of the properties.
The Trial Court dismissed the suit by holding that the Respondent was not ready and willing to perform the con tract, and 568 that the time was essence of the reconveyance agreement.
The first Appellate Court dismissed the respondent 's appeal.
The respondent preferred second appeal before the High Court.
Relying upon the two notices issued by the Respondent to the appellant before filing of the suit which contained the averments that he was willing and ready to perform the contract, the High Court reversed the findings of the two courts below and allowed the appeal and held that Respond ent Plaintiff was willing to perform the contract and that the Appellant was the party in breach.
Accordingly it passed a decree of specific performance of an agreement for sale of land.
During the pendency of the Second Appeal, suit proper ties were acquired by the State for public purposes and the High Court rejected the plea that after the land has been acquired by the State corpus of the Land had ceased to exist and no decree for specific performance can be granted.
In defendant 's appeal to this Court it was contended on his behalf (1) that the High Court erred in reappreciating the evidence in second appeal and in disturbing the concur rent findings of fact that Respondent was not willing and ready to perform the contract; (2) that in view of the acquisition of the suit properties the contract itself became incapable of specific performance and to such a case the power to give compensation as an alternative to specific performance did not extend.
Modifying the decree of the High Court, this Court, HELD:1.
Where the findings by the Court of facts are vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
[572 H] 1.1 The notices issued by the respondent to the appel lant containing the averments that he was ready and willing to perform the contract which were not actually served on the appellant because of his refusal to accept them must be presumed to have been served as contemplated by Section 27 of the General Clauses Act.
Therefore the High Court was right in relying upon the averments in the notices which could be treated as part to the plaint.
Accordingly the finding of the High Court that Respondent was willing and ready to 569 perform the contract and that it was the Appellant who was in breach is accordingly confirmed.
[572 F G, 578 H, 579 A] 2.
Section 21 of the enables the Plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance.
However, when the plaintiff by his option has made specific performance impos sible, Section 21 does not entitle him to seek damages.
That position is common under the English and Indian Law namely under Section of Lord Cairn 's Act, 1858 and Section 21 of the .
But under the Indian Law the explanation to sub section (5) of Section 21 makes a specif ic departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff, the contract becomes incapable of specific perform ance.
[574 D, 577, H C] Piarey Lal vs Hori Lal, [1977] 2 S.C.R. 915, distin guished and held inapplicable.
Mohamad Abdul Jabbar & Ors.
vs Lalmia & Ors., A.I.R. (34) 1947 Nagpur 254, disapproved.
Ardeshir H. Mama vs Flora Sessoon, A.I.R. 1928 Privy Council 208, explained.
However, so far as the proviso to sub section (5) of Section 21 is concerned, two positions must to kept clearly distinguished.
If the amendment relates to the relief of compensation in lieu of or in addition to specific perform ance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding.
That is a claim for compensa tion failing under section 21 of the and the amendment is one under the proviso to sub section (5).
But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract is invoked.
This amendment is under the discipline of Rule 17, Order 6, C.P.C. The fact that sub section (4), in turn, invokes Section 73 of the Indian Contract Act for the prin ciples of quanlification and assessment of compensation does not obliterate this distinction.
[575 B C] 570 3.1 In the instant case, assuming that the Respondent had not specifically sought for compensation in lieu of specific performance the amendment is permitted in order that complete justice is done.
[578 B] 3.2 The measure of the compensation is by the standards of Section 73 of the Indian Contract Act.
Here the English Rule in Bain vs Fothergill that the purchaser, on breach of the contract, cannot recover for the loss of his bargain is not applicable.
[578 C] Bain vs Fothergill, 1874 L.R. 7 House of Lords 158, held inapplicable.
Pollock & MuHa on Contract (10th edn.) p.663; Nagardas vs Ahmedkhan, , referred to. 3.3 In the instant case, the quantum of the compensation is ascertainable with reference to the determination of the market value in the land acquisition proceedings.
The com pensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.
[578 G] 4.
Accordingly there will be a decree awarding to the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to; the quantum and the measure of the compensation being the entire amount of compensation determined for the acquisition of the suit properties to gether with all the solatium, accrued interest and all other payments under the law authorising the acquisition less a sum of rupees one lakh fifty thousand only which shall go to the Appellant towards his services, time and amounts spent in pursuing the claims for compensation as well as the consideration stipulated for reconveyance.
[579 E F]


judgement:
ivil Appeal No. 3552 of 1989.
From the Judgment and order dated 24.11.87 of the Allahabad High Court in Second Appeal No. 2719 of 1987.
J.P. Goyal, R.C. Verma, M.R. Bidsar and K.K. Gupta (NP) for the Appellants.
O.P. Rana and Girish Chandra for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the Judgment of Allahabad High Court dated 24.11.1987.
The plaintiff respondent filed a suit on the ground that the land purchased through 4 sale deeds dated 10.6.1968, 21.6.1968, 17.1.1976 and 23.6.1977 were purchased by him alone and he was the real owner of said land.
The name of the defendants/appellants were included in the said sale deeds only as benamidar.
The defendants appellants took the plea that they had paid their part of the sale consideration and the land was jointly purchased in the name of both the parties.
It may be noted that the defendant appellant Om Prakash and plaintiff respondent Jai Prakash are brothers and defendant appellant NO.
2 Smt.
Satyawati is the wife of appellant Om Prakash.
It has come on record that the appellant NO. 1 Om Prakash was in Government service ever since 1953 and the plaintiff respondent was looking after the entire agricultural property in the village.
Consolidation proceedings also took place in the village and during the consolidation operation partition had been effected in the revenue records and chaks had been carved out in accordance with the share of the parties.
At that time no dispute was raised by the plaintiff respondent that he was owner of the entire property and the names of defendants appellants were wrongly mentioned as benami.
The learned trial court arrived at the conclusion that the names of the defendants appellants in the sale deeds were not mentioned as benamidars and further held that the claim of the plaintiff respondent could not be accepted as no objection had been taken by him even during the consolidation proceedings.
The suit as such was dismissed by the trial court by Judgment dated 24.1.1987.
The plaintiff aggrieved against the judgment of 19 the trial court, filed an appeal.
The first appellate court reversed the Judgment and decree of the trial court and decreed the suit in favour of the plaintiff.
The second appeal filed by the defendants was dismissed by the High Court.
The defendants aggrieved against the Judgment and decree of the High Court filed special leave petition before this Court on 15th March, 1988.
During the pendency of the special leave petition, the Benami Transactions (Prohibition of the right to recover property) Ordinance, 1988 was promulgated by the President of India on 19.5.1988.
The said ordinance was replaced by the Benami Transactions (Prohibition) ACt, 1988 (Hereinafter called the `Benami Act ').
The Act received the assent of the President of India on 5.9.1988.
The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid `Benami Act '.
Thereafter special leave was granted by this court by order dated 21.8.1989 and it was directed that printing of record is dispensed with and appeal will be heard on the special leave petition paper books.
The parties were given liberty to file additional documents if any within four weeks and the appeal was directed to be listed on 13.12.1989 for hearing.
Pending disposal of the appeal, the parties were directed to maintain status quo as existing on that day.
In the above circumstances, the matter came up for hearing before us.
Though there is no specific order of this Court allowing the application dated 1.5.1989 filed by the appellants for raising additional grounds, the same shall be deemed to have been allowed as the special leave petition was granted subsequently on 21.8.1989 after hearing both the parties.
In any case, we further make it clear that we had permitted the defendants/appellants to argue additional grounds made available to them under the `Benami Act ', which admittedly came into force after the filing of the special leave petition in this Court.
Learned counsel appearing on behalf of the defendants appellants had contended that the suit filed by the plaintiff respondent was not maintainable and barred under Section 49 of the U.P. Consolidation of Holdings Act, 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed to be recorded in the name of the defendants appellants.
So far as this objection under Section 49 of the U.P. Consolidation of Holdings Act is concerned, no foundations were laid in the written statement nor any issue was raised.
The High Court was thus right in holding that in the facts of this case, no foundation had been laid for the applicability of Section 49 of U.P. Consolidation of Holdings Act.
We see no error in the order of the High Court in taking the aforesaid view and we also hold that the defendants 20 appellants cannot be allowed to take such plea for which no foundation was laid in the pleadings.
The next important and formidable question which arises for consideration is whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act.
This Court in Mithilesh Kumari and Anr.
vs Prem Behari Khare, J.T. , has already held that the expression "shall lie" in Section 4 (1) and "shall allow" in Section 4 (2) of the Benami Act are prospective and shall apply to present (future stages) and future suits, claims or actions only.
The expression "any property held benami" is not limited to any particular time, date or duration.
In a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes.
Section 4 of the Benami Act reads as under: "(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
" In the case of Mithilesh Kumar this Court considered the 1/30th report of the Law Commission submitted to the Government on August 14, 1988.
Benami Transaction (Prohibition) Bill, 1988 was drafted after getting the report and the Bill was introduced in the Rajya Sabha on 31st August, 1988 and then the Bill was passed.
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retrospective in operation and that no locus penitentia need be given to the persons who had entered in the benami transaction in the past.
Learned counsel appearing for the respondent was unable to convince us to take a different view from that already taken by this Court in Mithiledsh kumari 's case.
It was vehemently contended by the learned counsel for the plaintiff respondent that even if the ratio of Mithilesh Kumari 's case is applied, it can be made available only in a case where appeal was pending before the higher Court.
It was contended that in the present case, only special leave petition 21 filed on 15th March, 1988 was pending at the time when the Benami Act came into force.
It was pointed out that the Ordinance was promulgated on 19.5.1988 and the Benami Act received the assent of the President on 5.9.1988.
It was thus contended that no appeal was pending on 19.5.1988 or 5.9.1988 as the special leave was granted much after on 21.8.1989 and thus no advantage can be taken by the defendants appellants of Section 4 of the Benami Act as no appeal was pending on the date when the benami Act came into force.
We find no force in the above contention of the learned counsel for the plaintiff respondent.
Special leave petition was filed against the Judgment of the High Court on 15.3.1988 and special leave was granted on 21.8.1989 after hearing both the parties.
In the present case the defendants having lost in High Court could have approached this Court only through a special leave petition under article 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard.
Though the special leave might have been granted subsequently on 21.8.1989 but it is a fact that the Judgment and decree of the High Court had already been challenged by the defendant appellants and it cannot be said that no appeal was pending before this Court simply on the ground that only special leave petition was pending when the Benami Act came into force.
There is a clear prohibition under Section 4 of the benami Act that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
It is well settled that an appeal is a continuation of suit and in the present case the appeal was pending before this Court.
There is no manner of dispute that the present suit had been filed by the plaintiff respondent claiming that he was the real owner of the property and the names of the defendants appellants were mentioned in the sale deeds as benami.
In our view, Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff respondent is not entitled to get any decree in such suit or in appeal.
As a result of the above discussion, we allow this appeal, set aside the Judgment and decree of the High Court and dismiss the suit.
In view of the fact that the suit is dismissed on account of legislative change brought about during the pendency of the appeal in this Court, there would be no order as to cost.
V.P.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The defendant appellant No. 1 and plaintiff respondent were brothers and defendant appellant No. 2 was the wife of appellant No. 1.
The appellant No. 1 was in Government service ever since 1953.
The plaintiff respondent was looking after the entire agricultural property in the village.
Partition was effected during consolidation proceedings and entered in the revenue records and chaks were carved out in accordance with the share of the parties in the consolidation proceedings.
During the consolidation operation, the plaintiff respondent did not raise any dispute that he was owner of the entire property and the names of defendants appellants were wrongly mentioned as benami.
Later, the plaintiff respondent filed a suit on the ground that the suit land was purchased by him alone through 4 sale deeds dated 10.6.1968, 21.6.1968,17.1.1976, and 23.6.1977 wherein the names of the defendants appellants were included only as benamidar and he was the real owner of the land.
The defendants appellants contended that they had paid their part 16 of the sale consideration and the land was jointly purchased in the name of both the parties.
The trial court dismissed the suit holding that the names of the defendants appellants in the sale deeds were not mentioned as benamidars and that the plaintiff respondent did not take any objection in the consolidation proceedings.
When the plaintiff respondent filed an appeal before the first appellate court, it reversed the judgment and decree of the trial court and decreed the suit in favour of the plaintiff respondent.
The second appeal filed by the defendants appellants was dismissed by the High Court.
The defendants filed a special leave petition before this Court on 15th March 1988.
During the pendency of the special leave petition the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance,1988 was promulgated on 19.5.1988.
The ordinance was replaced by the Benami Transactions (Prohibition) Act, 1988, which received the President 's assent on 5.9.1988.
The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid `Benami Act '.
Thereafter special leave was granted by order dated 21.8.1989 and the parties were given liberty to file additional documents, if any, within four weeks.
The defendants appellants contended that the suit filed by the plaintiff respondent was not maintainable and barred under Section 49 of the U.P. Consolidation of Holdings Act, 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed to be recorded in the name of the defendant appellants.
The plaintiff respondent contended that if the ratio of Mithilesh Kumari 's case, JT.
1989(1) SC 275, was applied, it could be made available only in a case where appeal was pending before the higher Court and that no advantage could be taken by the defendants appellants, of Section 4 of the Benami Act, as no appeal was pending on the date when the Benami Act came into force.
17 On the question, whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act, this Court, allowing the appeal of the defendants, HELD : 1.01.
In a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes.
[20C] 1.02.
The Law Commission 's view was that the legislation replacing the ordinance should be retrospective in operation and that no locus penitentia need be given to the persons who had entered in the benami transaction in the past.
[20G] 1.03.
In the present case the defendants, having lost in High Court, could have approached this Court only through a special leave petition under article 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard.
Though the special leave might have been granted subsequently on 21.8.89 but it is a fact that the Judgment and decree of the High Court had already been challenged by the defendant appellants, and it cannot be said that no appeal was pending before this Court simply on the ground that only special leave petition was pending when the Benami Act came into force.
[21C E] 1.04.
An appeal is a continuation of suit and in the present case, the appeal was pending before this Court.
The suit had been filed by the plaintiff respondent claiming that he was the real owner of the property and the names of the defendants appellants were mentioned in the saledeeds as benami.
[21E F] 1.05.
Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff respondent is not entitled to get any decree in such suit or in appeal.
[21F] Mithilesh Kumari and Anr.
v Prem behari Khare, J.T. , referred to . 2.01.
The expression "shall lie" in Section 4(1) and "shall allow" in Section 4(2) of the Benami Act are prospective and shall apply to present (future stages) and future suits, claims or actions only.
[20B] 2.02.
The expression "any property held benami" is not limited to any particular time, date or duration.
[20C] 18 3.
No foundations were laid in the written statement nor any issue was raised by the defendants appellants, on the question of applicability of Section 49 or th U.P. Consolidation of Holdings Act.
The defendants appellants cannot be allowed to take such plea.
[19H 20A]


judgement:
Criminal Appeal No. 722 of 1991.
From the Judgment and Order dated 21.12.1990 of the Kerala High Court in Criminal Appeal No. 425 of 1989.
B.R.L. lyanger, R. Mohan, V. Krishnamurthy and V. Bala chandran for the Appellants.
P.S. Poti, T.T. Kunhikannan, E.M.S. Anam, Ms. Indira Sawlmey, P. Parmeswaran, Ms. Sushma Suri, K. Ram Kumar and Y.P. Rao for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
Special leave granted.
This order will dispose of six matters namely, Crl.
Appeal Nos.
553/ 89, 283/91,284/91, Civil Appeal Nos.
3708 13/89, 1897/91 and Criminal Appeal arising out of S.L.P. (Crl.) No. 2647/91.
FACTS Crl.
A. No. 553/89 This appeal arises from the judgment of the learned Single Judge of the High Court of Kerala dated 6th June, 1988 whereby the learned Single Judge declined to quash the prosecution of the petitioner therein under Section 482 of the Code of Criminal Procedure.
The petitioner therein has been prosecuted for selling adulterated "Ashoka special supari" on the basis of a certificate issued by the Director of Central Food Laboratory showing that the article of Food purchased from the accused contained 2000 mgs/kg.
saccharin and that the sample does not conform to the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as the Rules).
The High Court took the view the report prima facie goes to show that accused has sold adulterated article of food and consequently declined to quash the prosecution under Section 482 of the Code.
A. No. 283/91 This appeal is directed against the order of the Kerala High Court dared 22nd January, 1991 accepting the appeal against the order of 394 acquittal passed by the Chief Judicial Magistrate, Palakkad, in S.T No. 36 of 1988.
The appeal was filed against the acquittal of accused Nos. 2 and 3 therein and out of whom N. Raja Mohammed, the Joint Managing Director of M/S N.V.K. Mohammed Sultan Rawther (P) Ltd., is the appellant before us.
The High Court confirmed the acquittal of second accused but sentenced the appellant before us under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act to undergo simple imprisonment for six month and to pay a fine of Rs. 1,000 with a default sentence of simple imprisonment for two more months.
284/91.
This appeal is filed against the order dated 21st Decem ber, 1990 passed by the learned Single Judge of the Kerala High Court dismissing the revision petition whereby accused No. I therein was sentenced to pay Rs. 1,000 as fine and the two other accused were sentenced to simple imprisonment for six months each and Rs. 1,000 as fine and in default of payment of fine to undergo simple imprisonment for a period of one month more.
Their conviction were recorded under Section 7(i) and (v) read with Section (16) (1) (a) (ii) of the Prevention of Food Adulteration Act for having sold Roja Sungandha Suparit with admixture of saccharin.
The sample was taken on 22nd December, 1986.
Civil Appeal Nos.
3708 13/89 These appeals are filed by the Union of India against the judgment of the Division Bench of the High Court of Andhra Pradesh dated 16th June, 1986 whereby the Division Bench following the judgment of a learned Single Judge in Crl.
Petition No. 1569 of 1984 allowed the writ peti tions.
A batch of writ petitions were filed for a declara tion that the admixture of saccharin in Anjali Sugandhi Supari; Roja Scented Betelnut; Nizam Supari; A.R.R. Saugan tha Supari and Ajantha Sugandhi Supari is in accordance with Rule 44 of the Rules and restraining the respondents/ appel lant herein from interfering with the business of sale of Supari with such an admixture.
Civil Appeal No. 1897/91 This appeal is directed against the order of the Divi sion Bench of the Kerala High Court dated 22nd November, 1990 whereby the learned Division Bench was inclined to take the view that the learned Single Judge should have declined jurisdiction for the reason that the relief claimed 395 is of a general character for a declaration that the admix ture of saccharin in Roja Scented Betelnut is not a blanket ban under Rule 47 read with Appendix B of the Prevention of Food Adulteration Rules, 1955.
Appeal at, sing out of SLP (Crl.) No. 2647/91 This appeal is directed against the order of the High Court of Kerala dated 21st December, 1990 setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law.
The trial court had inter alia taken the view that the sample of Supari in question was taken contrary to Rule 22 A of the Rules.
The High Court took the view that the sample was properly taken.
On a plea being raises that the article of Supari was not adulterated as saccharin could be added to Supari, the High Court did not agree with the submission and held that saccharin could not be added to Supari and consequently the High Court remanded the matter to the trial court for fresh disposal according to law.
The case inter alia involves interpretation of Rule 44 (g) of the Rules before its deletion with effect from 15th April, 1988 and the amendment of Rule 47 by Notification No. GSR 454 (E) dated 15.4.1988 (with effect from 15.4.1989) as covered by GSR 1157 (E) dated 9.12.1988.
Rules 44(g) and 47 as they originally stood and as they stood modified at the relevant time of taking of the sample, figured during the arguments and they are extracted hereunder with comments : "44.Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43, no person shall either himself or by any servant or agent sell (g) any article of food which contains any artificial sweetener, except Saccharin, or in the preparation of which any such artificial sweetener has been used".
" "47.
Addition of Saccharin to be mentioned on the label.
Saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label.
which shall be in the form given below : This . . (name of food) . . contains an admixture of Saccharin".
These Rules held the field from November 24, 1956 until August 24, 1968 when they were further amended.
The Preven tion of Food Adulteration (Third Amendment) Rules 1968, redrafted Rules 44 (g) and 47.
and it 396 is these Rules which were extant at the time of the alleged offence.
It is proper at this stage to reproduce these two Rules: "44.
Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell (g) any article of food which contains any artificial sweetener except where such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
"47.Addition of artificial sweetener to be mentioned on the label Saccharin or any other artificial sweetener shall not be added to any article of food, except where the addi tion of such artificial sweetener is permitted in accordance with the stand ards laid down in Appendix 'B ' and where any artificial sweetener is added to any food the container of such food shall be labelled with an adhesive declaratory label which shall be in the form given below: This . . (name of food) . . contains an admixture . . (name of the artificial sweetener)".
The Supreme Court in its decision Pyarali K. Tejani vs Mahadeo Ramchandra Dange and Others, ; took the view that at the relevant time the article like saccha rin could not be added to the Supan in view of the amended Rules 44(g) and 47 of the Rules.
It will be noticed that till date no standard has been prescribed in Appendix 'B ' to the Rules so far as the Supari is concerned.
Therefore under Rule 44(g) there was a total prohibition of use of saccha rin, which is an artificial sweetener, to any article of food including Supari and regarding saccharin it was specif ically provided in Rule 47 that it shall not be added to any article of food, except where the addition of such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
Therefore, under Rule 47 again so far as saccharin is concerned and for which no standards have been prescribed in Appendix 'B ' there was total prohi bition of adding the same in any article of food.
This was the view taken in the aforesaid case of Pyarali K. Tejani.
For the period relevant for the Tejani 's case the Rules permitted saccharin to be added in case of carbonated water in item 5(B) A 1.01.01 only but no such permission was noticed by the Supreme Court in the case of Supari.
Thus the Supreme Court had settled the law, as far as the Rules between August 24, 1968 and 15th April, 1988 are concerned.
We may mention that w.e.f. 15.4.
1988 Rule 44(g) was omitted and Rule 47 was substituted by new Rules.
397 However, it appears that with effect from 26th May, 1971 for the first time a standard was prescribed for Saccharin Sodium as item No. A.07.10 in Appendix 'B ' to the Rules.
After the provision of standard for Saccharin Sodium in Appendix 'B ' to the Rules, the Bombay High Court in the case of State of Maharashtra vs Ranjitbhai Babubhai Suratwalla, distinguished the judgment of the Supreme Court in Tejani 's case (supra) and took the view that because standards; have been prescribed for saccharin, Rule 47 permitted its user in article of food.
This view was followed by Single Judge of the Andhra Preadesh High Court in the case reported as Thummalapudi Venkata Gopala Rao vs The State, (1986)Cr1 LJ 1699.
Asimilar view was taken by another Single Bench of the Madras High Court in the case M/s. Wahab and Co., a Proprietory concern represented by its proprietor M. A Wahab son of N. Mohamed Sheriff vs Food Inspector, Tiruchirappalli Municipal corparation Trichy; (1990)L.W.(CrI.)437 with out noticing the earlier cotract view of the same High Court reported as State by Public Prosecutor vs K. R. Balakrishnan, (1986) (I) FAC 384.
The Rajasthan High Court also took the same view in the case reported as Kailash vs The State of Rajasthan, (1985) (I) FAC 282.
The Gauhati High Court in the case reported as State of Assam vs Rant Karani and Others (1987) (3) All India Prevention of food Adulteration Journal 153 following some of the aforesaid decisions also look the view that addition of artificial sweetener like saccharin in Supari or Pan Ka Masala, if it conforms to the standard laid down in clause A.07.10 of the Appendix 'B ' of the Rules, did not violate Rule 44(g) read with Rule 47 of the Rules.
The Madhya Pradesh High Court in the case reported as Ujjain Municipal Corporation, Ujjain vs Chetan Das, (1985) (I) FAC 46. followed the view of the Bomaby High Court in the case reported as Ranjitbhai Babubhai Suratwalla (supra).
On the other banal the High court of Kerala, Allahabad and another earlier Single Bench of the Madras High Court took the view that prescription of standard of saccharin in Appendix 'B ' to the Rules could not alter the interpretation of Rule 44(g) nor help could be taken from interpretaion of Rule 47.
The Kerala High Court in the case reported as Food Inspector vs Usman, noticed the view of the Bombay High Court in Ranjitbhai Babubhai Suratwalla 's case (supra) and dissented from it and held: "Rule 47 of the Prevention of Food Adultera tion Rules provides that saccharin or any other artificial sweetener shall not be added to any article of food, except where the addi tion of 398 such artificial sweetener is permitted in accordance with the standards laid down in Appendix 'B ' and where any artificial sweeten er is added to any food, the container of such food shall be labelled with an adhesive de claratory label to that effect.
That means unless and to the extent in accordance with the standards prescribed in Appendix 'B ' saccharin or any other artificial sweetener are prohibited material in food articles.
For pan supari no standard is fixed in Appendix 'B '.
That means addition of artificial sweet ener is not permitted by the standards laid down in Appendix 'B ' and the prohibitions under Rule 47 operates as an absolute prohibi tion against addition of saccharin or other artificial sweetener so far as pan supari is concerned.
Whether addition of artificial sweetener is injurious to health or life is not a matter for consideration when its addi tion is prohibited".
Following the decision of the Supreme Court in Tejani 's case the Court set aside the acquittal of accused No. 1 and sentenced him.
A Division Bench of the Allahabad High Court in Krishna Chandra (in Jail,) vs State of Uttar Pradesh, (1990) (I) F.A.C. 35 differed with the earlier decision of the Single Bench in Ibrahim Hussain vs ,State of Uttar Pradesh and also differed with the view of the Bombay High Court in Ranjitb hai Babubhai Suratwallas case and declined to distinguish the Tejani 's case as held by this court and took the view that the prescription of the standard of saccharin is not at all relevant to the inquiry and saccharin could not be added to any article of food unless permitted by standard pre scribed in Appendix 'B ' to the Rules and purported to the decision of this Court in Tejani 's case.
Before us also Mr. B.R.L. lyengar, who appeared for the accused, made submission that on the construction of Rule 44(g) it permits sale of article of food which contains artificial sweetener with the standard as laid down in Appendix 'B ' to Rules.
We are unable to accept the submis sion.
We are also unable to accept the decisions of the High Courts supporting that view.
Rule 44 (g) indicates that sale of any article of food which contains artificial sweetener is banned.
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix 'B ' to the Rules.
Admittedly no stand ard has been laid down for Pan Masala or Supari.
It is this article of food which was being sold.
No standard was pre scribed for this article of food.
Therefore, the exception permitted by clause (g) has no application 399 and no relevance.
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added.
Again Rule 47 in other form specifi cally bars saccharin or any other article of artificial sweetener to be added in any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
Therefore both Rules 44(g) and 47 constitute a total blanket ban on the addition of any artificial sweetener including saccharin to any article of food unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener.
The argument that since the standards of saccharin have been provided for in the Appen dix 'B ' to the Rules and therefore, it could be added in view of the language of Rule 44(g) is fallacious.
What one has to see is the article of food in which the artificial sweetener is sought to be added.
If the standards for that article of food is provided in Appendix 'B ' to the Rules and such standards permit the addition of saccharin or any other artificial sweetener, then and then only saccharin or any other artificial sweetener could be added and not otherwise not.
It appears that the Bombay High Court and the other High Courts which have taken the opposite view seem to have fallen into errors while interpreting Rule 44(g1.
They have assumed as if once the standards of saccharin or the artifi cial sweetener have been prescribed it could be freely added to any article of food.
It is necessary to point out that the prescription of standard of saccharin or any artificial sweetener in Appendix 'B ' is really irrelevant.
What was emphasised in Tejani 's case is the standard of food and the standard should permit saccharin or any artificial sweetener to be added.
It is not the question of standard being pre scribed for saccharin which is relevant; what is relevant is the standard being prescribed in Appendix 'B ' of the article of food which is being sold and which standard permits user of saccharin.
This is the real intention of the legislature while enacting Rule 44(g) of the Rules.
For Supari and Pan Masala, it is undisputed that there is no standard pre scribed.
In this view of the matter, we agree with the decisions of the Kerala High court in Food Inspector vs Usman ; Allahabad High Court in Krishna Chandra, (in Jail) vs State of Uttar Pardesh, 1990 (I) F.A.C. 35 and Madras High Court in State by Public Prosecutor vs K.R. Balakrishnan, The decisions in: State of Maharashtra vs Ranjitbhai Suratwalla, the Bombay High Court; Thummalapudi Venkata Gopala Rao vs The State.
(1986) Crl.
L.J. 1699 of the Andhra Pradesh High Court; M/s. Wahab and Co., a Proprietory concern represented by its proprietor M.,A. Wahab son of N. Mohammed Sheriff vs Food Inspec 400 tor, Tiruchirapalli Municipal Corporation, Trichy, (1990) L.W. (Crl.) 437 of the Madras High Court; Kailash vs The State of Rajasthan, 1985 (I) F.A.C. 282 of the Rajasthan High Court; The State of Assam vs Ram Karani and Others, 1987 (3) All India Prevention of Food Adulteration Journal 153 of the Gauhati High Court and Ujjain Municipal Corpora tion, Ujjain vs Chetan Das, 1985 (I) F.A.C. 46 of the Madhya Pradesh High Court cannot be said to have been correctly decided and are hereby overruled.
The result is that civil Appeal Nos.
3708 13 of 1989 are accepted and the impugned judgment of the Andhra Pradesh High Court dated 16th June, 1986 is set aside Crl.
Appeal Nos.
553/89, 283/91,284/91, Civil Appeal No. 1897/91 and the appeal arising out of S.L.P. (Crl.) No. 2647/ 91 are dis missed.
T.N.A. Appeals dis posed of.

summary/full:
The appellant (in Criminal Appeal No. 553/89) was prose cuted for selling adulterated supari with admixture of saccharin.
He filed a petition in the Kerala High Court under section 482 of the Criminal Procedure Code for quash ing the criminal proceedings which was dismissed by a single judge.
Against the decision of the single judge an appeal was filed in this Court.
The appellant (In Criminal Appeal No. 283/91) was also prosecuted for selling adulterated Supari but was acquitted by the Chief Judicial Magistrate, Palakkad.
On appeal the Kerala High Court set aside his acquittal and convicted him under section 16(1) (a) (i) of the Prevention of Food Adul teration Act and sentenced him to imprisonment for 6 months and a fine of Rs.1000.
Against the order the Kerala High Court an appeal was filed in this Court.
The appellant (In Criminal Appeal No. 284/91) was con victed ruder section 7(i) and (v) read with sections 16(i) (a) (ii) of the prevention of Food Adulteration Act for sale of adulterated supari with admixture of saccharin.
He filed a Revision Petition in the Kerala High Court and a Single Judge dismissed the same.
Against the order of the Single Judge an appeal was filed in this Court.
The facts in the connected civil appeal (Nos. 3708 13/89) are that a batch of writ petitions was filed in the Andhra Pradesh High 391 Court for a declaration that the admixture of saccharin in supari was in accordance with Rule 44 of the Prevention of Food Adulteration Rules, 1955 and for restraining the re spondents from interfering with the business of sale of supari.
A Division Bench of the High Court allowed the writ petitions.
Against the decision of the Division Bench Union of India has filed appeals in this Court.
Civil Appeal No. 1897/91 is directed against the order of the Division Bench of the Kerala High Court which held that the learned Single Judge should have declined jurisdic tion for the reason that the relief claimed was of a general character for a declaration that the admixture of saccharin in Roja Scented betelnut is not a blanket ban under Rule 47 read with Appendix 'B ' of the Prevention of Food Adultera tion Rules, 1955.
Criminal Appeal No. 722/91 is directed against the order of the High Court of Kerala setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law.
The High Court did not agree with the submission that the arti cle of Supari was not adulterated as saccharin could be added to Supari.
Accordingly it held that saccharin could not be added to supari and consequently remanded the matter to the trial court for fresh disposal according to law.
In appeals to this court it was contended on behalf of the accused that on the construction of Rule 44(c) it per mits sale of Article of food which contains artificial sweetener with the standard as laid down in Appendix 'B ' to Prevention of Food Adulteration Rules, 1955.
Disposing the appeals, this Court, FIELD: 1.
Rule 44(g) of the Prevention of Food Adultera tion Rules, 1955 indicates that sale of any article of food which contains artificial sweetener is banned.
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix 'B ' to the Rules.
Rule 47 in other form specifically bars saccharin or any other article of artificial sweetener to be added in any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix ' 'B '.
Thus both Rules 44(g) and 47 constitute a total blanket ban on the addition of any artificial sweeten er including saccharin to any article of food 392 unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener.
[398 G, 399 A B] 2.
The prescription of standard of saccharin or any artificial sweetener in Appendix 'B ' is really irrelevant.
It is not the question of standard being prescribed for saccharin which is irrelevant what is relevant is the stand ard being prescribed in Appendix 'B ' of the article of food which is being sold and which standard permits user of saccharin.
This is the real intention of the legislature while enacting Rule 44(g) of the Rules.
[399 E F] 3.
What one has to see is the article of food in which the artificial sweetener is sought to be added.
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added.
If the standards for that article of food is provided in Appen dix 'B ' to the Rules and such standards permit the addition of saccharin or any other artificial sweetener, then and then only saccharin or any other artificial sweetener could be added and not otherwise.
[399 A C] 4.
Admittedly no standard has been laid down for Pan Masala or Supari i.e. the article of food which was being sold.
Therefore, the exception permitted by clause (g) of Rule 44 has no application and no relevance.
[398 H, 399 A] Pyarali K. Tejani vs Mahadeo Ramchandra Dange and Ors., ; , explained and applied.
State of Maharashtra vs Ranjitbhai Babubhai Suratwalla, ; Thummalapudi Venkata Gopala Rao vs The State.
, M/s Wahab and Co. a proprie tary concern represented by its ' proprietor N.A. Wahab son of N. Mohammad Sheriff vs Food lnspector.
Tiruchirappalli Municipal Corpn., Trichy.
[1990] L.W. (Crl.) 437; Kailash vs The ,State of Rajasthan, ; State of Assam vs Ram Karani anti Ors., (1987) 3 All India Prevention of Food Adulleration Journal 153; Ujjain Municipal Corpn.
, Ujjain vs Chetan Das, (1985) I F.A.C. 46, overruled.
State by public prosecutor vs
K.R. Balakrishnan, ; Food Inspector vs Usman. ; Krishna Chandra (In jail) vs State of Uttar pradesh, , approved.