judgement:
ON: Appeal No. 209 of 1964.
Appeal by special leave from the Judgment and order dated January 31, 1964 of the Bombay High Court in Criminal Revision Application No. 913 of 1963.
J. C. Dalal, E. E. Jhirad and O. P. Rana, for the appellant.
section C. Patwardhan B. Dutta, J. B. Dadachanjl, O. C. Mathur and Ravinder Narain, for respondent No. 1.
The Judgment of the Court was delivered by Shah, J.
The appellant, Mrs. Menezes, is the owner of a 123 124 house in Bombay, and the wife of the first respondent Yusuf Khan is a tenant of a part of the first floor in that house.
On January 17, 1963 one Robert a servant of the appellant, called the wife of the first respondent a thief and 'Halkat '.
On the next day the first respondent slapped the face of Robert.
This was followed by a heated exchange of abusive words between the first respondent and the appellant 's husband.
The first respondent was annoyed and threw at the appellant 's husband a "file" of papers.
The file did not hit the appellant 's husband, but it hit the elbow of the appellant causing a "scratch".
The appellant lodged information at the Bandra police station complaining that the first respondent had committed house trespass in order to the committing of an offence punishable with imprisonment, had thrown a shoe at her, had slapped the face of her servant Robert, and had also caused her a "bleeding incised wound on the forearm".
The version of the appellant was a gross exaggeration of the incident.
The Officer in charge of the police station was persuaded to enter upon an investigation on this information, which by charging the respondent with the offence of trespass was made to appear as if a cognizable offence was committed.
The Sub Inspector found that the appellant had suffered a mere scratch on her elbow.
The appellant and Robert declined to go to a public hospital for examination or treatment, and were, it is claimed, examined by a private medical practitioner, who certified that the appellant bad suffered a "bleeding incised wound, skin deep, size 1" in length on the right forearm", and that Robert had "a swelling about 1 1/2 " in diameter, roundish, soft and tender", but no bruises.
The offence was petty, but was given undue importance.
The case was transferred from the Court of the Presidency Magistrate, Bandra, to the Court of the Presidency Magistrate VI Court, Mazagaon, Bombay, and was entrusted to a special prosecutor on behalf of the State.
The Trial Magistrate held that the story that the first respondent had trespassed into the house of the appellant was false and the charge of trespass was made only with a view to persuade the police officer to investigate it as a cognizable offence.
The story of the appellant that the first respondent had hurled a shoe at her was also disbelieved.
The Trial Magistrate held that simple injuries were caused to Robert and to the appellant and for causing those injuries he convicted the first respondent of the offence under section 323 I.P. Code and sentenced him to pay a fine of Rs. 10 on each of the two counts.
Against the order of conviction, a revisional application was preferred to the High Court of Judicature at Bombay.
The appellant was no longer concerned with the proceedings in the High Court, but since there were some negotiations for compounding the offence, the appellant was impleaded as a party to the proceeding before the High Court.
The High Court was of the view that the appellant had grossly exaggerated her story, that the evidence of the medical practitioner who claimed to have examined the appellant and Robert and to have 125 certified the injuries" did "not inspire confidence", that the husband of the appellant had addressed provocative and insulting abuses, and that in a state of excitement the respondent hurled a "file of papers" at the appellant 's husband which missed him and caused a "scratch" on the appellant 's forearm.
The injuries caused to the appellant and to Robert were in the view of the High Court "trivial" and the case was one in which the injury intended to be caused was so slight that a person of ordinary sense and temper would not complain of the harm caused thereby.
The High Court accordingly set aside the conviction and acquitted the first respondent.
Before us it was urged that the High Court had no power to act under section 95 I.P. Code, since by the act of the respondent bodily hurt was intentionally caused.
It was argued that section 95 applies only in those cases where the act which causes harm is actually caused to the complainant section 95 cannot be invoked.
In section 95 I.P. Code includes financial loss, loss of reputation, mental worry or even apprehension of injury, but when physical, injury is actually caused to the complainant section 95 cannot be invoked.
In ' our view there is no substance in these contentions.
Section 95 provides: "Nothing is and offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
" It is true that the object of framing section 95 was to exclude from the operation of the Penal Code those cases which from the imperfection of language may fall within the letter of the law, but are not within its spirit and are considered, and for the most part dealt with by the Courts, as innocent.
It cannot however be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby, will not fall within the terms of section 95.
The argument is belied by the plain terms of section 95.
The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm.
The expression "harm" has not been defined in the 'Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil.
There is no warrant for the contention raised that the expression "harm" in section 95 does not include physical injury.
The expression "harm" is used in many sections of the Indian Penal Code.
In sections 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury.
In section 93 it means an injurious mental reaction.
In section 415 it means injury to a person in body, mind, reputation or property.
In sections 469 126 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party.
There is nothing in section 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word.
Section 95 is a general exception, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in section 95 in a restricted sense.
The next question is whether, having regard to the circum stances, the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm.
Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial character.
Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending act is done, and other related circumstances.
There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm.
It cannot be judged solely by the measure of physical or other injury the act causes.
A soldier assaulting his colonel, a, policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heniousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of dis cipline.
An assault by one child on another, or even by a grown up person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused.
that the victim ordinarily may not complain of the harm.
The complainant 's husband had, it appears, beaten the first respondent 's child for some rude behaviour and Robert the appellant 's servant was undoubtedly rude to the respondent 's wife and instead of showing contrition he said that he would repeat his rude words.
At the time of the incident in question, the appellant 's husband and the first respondent exchanged vulgar abuses.
Apparently the respondent was annoyed and threw a "file" of papers which caused a mere scratch to the appellant.
It is true that the servant Robert was given a slap on the face by the first respondent.
But the High Court was of the view that the harm caused both to the appellant and to Robert was "trivial", and that the evidence justified the conclusion that the injury was so slight that a person of ordinary sense and temper placed in the circumstances in which the appellant and Robert were placed may not reasonably have complained for that harm.
Even granting that a different view may be taken of the evidence, we do not think that we would 127 justified in an appeal under article 136 of the Constitution in discreeing with the order of the High Court.
We therefore maintain the order of acquittal passed by the High Court.
This court had at the time when special leave was granted directed that Rs. 1,500 be deposited by the appellant by way of costs of the respondents.
The State of Maharashtra has not appeared before us in this appeal.
In the circumstances, we direct that Rs. 750 be paid to the first respondent and the balance be returned to the appellant.
Appeal dismissed.

summary/full:
In the course of an altercation between neighbours the first respondent slapped the appellant 's servant and threw a file of papers at the appellant 's husband which missed him but hit the appellant on the elbow, causing a scratch.
On a prosecution being launched the Presidency Magistrate convicted the first respondent under section 323 of the Indian Penal Code.
The High Court however held that the offending act came within the General Exception in section 95 of the Indian Penal Code as it was trivial.
In appeal to this Court the appellant contended that: (1) Section 95 applies only when the act of the accused is accidental and not deliberate; (2) the section cannot be invoked if the harm caused consists of physical injury.
HELD:(i) It cannot be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby will not fall within the terms of section 95.
The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense or temper would complain of such harm.
[125 F] (ii) There is nothing in section 95 to justify the contention that the word 'harm ' as used in that section does not include physical injury.
Section 95 is a general exception and that word has in many other sections dealing with general exceptions a wide connotation inclusive of physical injury.
There is no reason to suppose that the Legislature intended to use the expression 'harm ' in section 95 in a restricted sense.
[126 A B] (iii)Whether, an offence is trivial must depend on the nature of the injury, the position of the parties, the knowledge or intention with which the offending act is done, and other related matters.[126 CD]


judgement:
s by special leave from the judgments and orders dated November 27, 1961 of the Gujarat High Court in Special Civil Applications Nos. 704 and 707 of 1961.
140 Arun Naginlal Surti, B. Datta and J. B. Dadachanji, for the appellants.
A. K. Sen, M. section K. Sastri and B. R. G. K. Achar, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
These four consolidated appeals are brought, by special leave, against the order of the High Court of Gujarat dated November 27, 1961 summarily dismissing four Special Civil Applications Nos.
704 to 707 of 1961 which had been filed by the appellants under article 227 of the Constitution of India for quashing the order of the Gujarat Revenue Tribunal dated July 18, 1961.
The appellants had applied for compensation to the Jagir Abolition Officer, Baroda under section 13 of the Bombay Merged Territories & Areas (Jagirs Abolition) Act, 1953, hereinafter referred to as the 'Jagirs Abolition Act ', in respect of their proprietary jagirs.
Against the award of compensation made by the Jagir Abolition Officer the appellants preferred appeals under section 16 of the Jagirs Abolition Act.
Although these appeals were filed before the Revenue, Tribunal at Bombay, the appeals were transferred, on the bifurcation of Bombay State, to the Gujarat Revenue Tribunal at Ahmedabad, hereinafter called the 'Tribunal '.
All these appeals were ultimately dismissed by the Tribunal for non prosecution on account of non appearance of the advocate of the appellants.
Against the dismissal of the appeals for non prosecution the appellants filed applications for restoration before the Tribunal on May 6, 1961.
The appellants contended that since the orders passed dismissing the appeals were received by them on April 9 and April 20, 1961, the restitution applications filed on May 6, 1961 were within 30 days of the receipt of the order of dismissal and hence the applications for restoration were made in time under Regulation 21 of the Bombay Revenue Tribunal Regulations.
The appellants also prayed that the applications for restoration should be allowed as they were prevented for sufficient cause from appearing at the hearing of the appeals.
The Tribunal rejected the applications holding that they were barred under article 168 of the Limitation Act read with Regulation 55 and 0.41, rr. 17 and 19 of the Civil Procedure Code.
The view taken by the Tribunal was that the applications for restoration should have been made within 30 days from the date of the order of dismissal.
As the orders of dismissal was made on February 1, 2 and 3, 1961 and the applications for restoration were made only on May 6, 1961, the Tribunal held that they were time barred.
Aggrieved by the order of dismissal of the restoration applications the appellants moved the High Court of Gujarat under article 227 of the Constitution of India but their applications were dismissed in Iimine.
The first question for consideration is whether the orders of the Tribunal dated February 1, 2 and 3, 1961 are illegal and ultra 141 vires because the Tribunal dismissed the appeals for non prosecution and there was no decision of the appeals on merits.
It was contended that it was obligatory on the part of the Tribunal to decide the appeals on merits and record its decision in view of section 17 of the Jagirs Abolition Act which states as follows: "17.
(1) The Bombay Revenue Tribunal shall, after giving notice to the appellant and the State Government, decide the appeal and record its decision.
(2)In deciding an appeal under this Act the Bombay Revenue Tribunal shall exercise all the powers which a court has and shall follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908.
" in our opinion, the contention put forward by the appellants is well founded and must be accepted as correct.
Section 13 of the Jagirs Abolition Act provides that any jagirdar entitled to compensation under section 11 or 12 shall, on or before the 31st day of July 1958 apply in writing to the Collector for determining the amount of compensation payable to him under the said section.
Section 13(2) states that on receipt of an application under sub section
(1), the Collector shall, after making formal enquiry in the manner provided by the Code, make an award determining the amount of compensation.
Section 14 of the Jagirs Abolition Act states as follows: "14.
(1) If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation.
(2) The application under sub section (1) shall be made to the Collector in the prescribed form on or before the 31st day of July 1958.
The Collector shall, after holding a formal inquiry in the manner provided by the Code, make an award determining the compen sation in the manner and according to the method provided for in sub section (1) of section 23 and section 24 of the Land Acquisition Act, 1894.
" Section 15 states that "every award made under section 13 or 14 shall be in the form prescribed in section 26 of the Land Acquisition Act, 1894 and the provisions of the said Act shall, so far as may be, apply to the making of such award".
Section 16 provides 142 for an appeal against the Collector 's award and is to the following effect: "16.
An appeal shall lie against an award of the Collector to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957 notwithstanding anything contained in the said Act.
" Section 20 provides for the finality of the award and of the decision of the Revenue Tribunal and reads as follows: "20.
The award made by the Collector subject to an appeal to the Bombay Revenue Tribunal and the decision of the Bombay Revenue Tribunal on the appeal shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court.
" On a consideration of the language of section 17(1) of the Jagirs Abolition Act and in the context of section 20 of the Jagirs Abolition Act we are of the opinion that it is obligatory on the part of the Tribunal to decide an appeal on merits even though there is default in the appearance of the appellants and to record its decision regarding the merits of the appeal.
If an appeal is dismissed for want of prosecution it cannot be said that the Tribunal has 'decided the appeal ' and 'recorded its decision ' within the meaning of section 17 of the Jagirs Abolition Act.
It cannot be supposed that the legislature intended by the word 'decide ' in section 17(1) to mean 'dispose of the appeal or to put an end to the appeal '.
It is important to notice that section 20 of the Jagirs Abolition Act makes a decision of the Tribunal in appeal as final and conclusive and not to be questioned in any suit or proceeding in any Court.
In the context of section 20 and in view of the express language of section 17(1) of the Jagirs Abolition Act we are of opinion that the Tribunal has no power to dismiss an appeal for non prosecution but it is obligatory on its part to decide the appeal on merits and to record its decision even though there is default on the part of the appellant to appear in the appeal.
The second question of law for consideration in this case is whether, on a proper construction of Regulations 19, 20 and 21 of the Bombay Revenue Tribunal Regulations, 1958, the Tribunal was right in taking the view that the applications for restoration made by the appellants were barred by limitation.
Section 14 of the Bombay Revenue Tribunal Act (Bombay Act No. XXXI of 1958) deals with the practice and procedure to be followed by the Gujarat Revenue Tribunal.
Section 14 states: "14.
(1) Subject to the provisions of this Act and to the previous approval of the State Government, the President may make regulations for regulating the practice and procedure of the tribunal, including the award of costs by the Tribunal, the levy of any process fee, the right of audience before the Tribunal, the sittings of the members either singly, or in 143 benches constituted by the President or such member as is authorised by him from amongst the members of the Tribunal, the disposal by the Tribunal, or a bench thereof, of any proceedings before it notwithstanding that in the course thereof there has been a change in the persons sitting as members of the Tribunal or bench; and generally for the effective exercise of its powers and discharge of its functions under this Act.
Where any members sit singly or where any benches are constituted, such member or bench shall exercise and discharge all the powers and functions of the Tribunal.
(2) The regulations made under this section shall be published in the Official Gazette.
" Regulation 19 deals with procedure to be followed by the Tribunal in case of non appearance of parties.
Regulation 19 is to the following effect: "19.
(1) If on the date fixed for hearing or any other subsequent day to which the hearing may be adjourned, the appellant or applicant does not appear either in person or through his agent or lawyer when the appeal or application is called for hearing, the Tribu nal may dismiss the appeal or application or may decide it on merits, after hearing the respondent or his agent or lawyer, if present.
(2) If on the date fixed for hearing or on any other subsequent day to which the hearing may be adjourned, the respondent or opponent, as the case may be, does not appear in person or through his agent or lawyer when the appeal or application is called for hearing the Tribunal may decide the same on merits, after hearing the appellant or applicant or his agent or lawyer. . . . " Regulation 20 provides for restoration of an appeal or application and reads as follows: "20.
If any of the parties was absent on the date of the hearing, either preliminary or final, and the appeal or application was heard and declared ex parte, the party concerned may apply for restoration of the appeal or application, as the case may be, and if the party satisfies the Tribunal that he had no notice of the date of the bearing or that be was prevented by sufficient cause from appearing when the appeal or application was called for hearing, the Tribunal may restore the appeal or application to its file, provided that where the other party had appeared in the appeal or application such party shall be given notice and an opportunity of being heard before the order for resto ration of the appeal or application is made.
" 144 Regulation 21 is to the following effect: (1) An application for restoration of an appeal or application made under regulation 20 shall be filed within thirty days from the date of the receipt of the order or dismissal of the appeal or application and shall be accompanied by (a) a certified copy of the Tribunal 's order; (b) the decision or order (either in original or a certified copy thereof) in respect of which appeal or application sought to be restored is made; (c) if the decision or order referred to in clause (b) is itself made in appeal against any decision or order, then also such latter decision or order either in original or a certified copy thereof; and (d) as many copies of the restoration application as there are respondents or opponents.
. . . . . . . .".
Regulation 55 states that in any matter not provided for in the Regulations the Tribunal shall follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908.
From the scheme of the Regulations it is apparent that under Regulation 19(1) it is open to the Tribunal to dismiss an appeal for non prosecution in a case where the appellant does not appear either in person or through his agent or lawyer.
It is also open to the Tribunal in such a case to hear the respondent to the appeal and decide it on merits.
Regulation 19(2) contemplates a case where the respondent fails to appear and even so it is open to the Tribunal to hear the appellant and then decide the case on merits.
Regulation 20 which provides for restoration of the appeal is a, consequential regulation to Regulation 19.
One of the conditions for invoking the provisions of restoration under Regulation 20 is that "the appeal 'or application was heard and decided ex parte".
On behalf of the respondent it is contended by Mr. Asoke Sen that Regulation 20 only applies to cases contemplated by the latter part of Regulation 19(1) and 19(2) and not to cases of dismissal for want of prosecution under the first part of Regulation 19(1).
We are unable to accept this submission as correct.
In our opinion, the language of Regulation 20, on its true interpretation, applies not only to a case where the appeal has been decided on merits but also to a case where the appeal has been dismissed for want of prosecution under Regulation 19(1).
The reason is that in Regulation 19(1) and 19(2) the legislative authority uses the words "decide it on merits" but in Regulation 20 the expression used is "decided ex parte" and we see no reason, either in the language or context of Regulation 20, why it should not include in its scope and ambit an application for restoration of an appeal dismissed for non prosecution as also an application for restoration of appeal decided 145 on merits under Regulation 19(1).
If the view that we have taken as to the interpretation of Regulation 20 is correct, it follows that Regulation 21 applies to the present case and the period of limitation prescribed by that Regulation being 30 days from the date of receipt of the order of dismissal of the appeal, the applications of restoration made by the appellants in all the four cases were well within the period of limitation prescribed by Regulation 21.
It follows, therefore, that the Tribunal committed an error of law in dismissing the applications of restoration made by the appellants in all the four appeals.
For these reasons we allow these appeals, set aside the order of the Gujarat High Court dismissing Special Civil Applications 704 to 707 of 1961 and hold that the order of the Gujarat Revenue Tribunal dismissing the restoration applications Nos.
GRT.D. 10 to 13 of 1961 dated July 18, 1961 is defective in law and must be set aside.
We also hold that the orders of the Gujarat Revenue Tribunal dismissing Appeals Nos.
REV.A. 27.
28, 29 and 30 of 1960 are ultra vires and illegal and must be set aside and order that these four appeals should go back to the Gujarat Revenue Tribunal for being reheard and dealt with in accordance with law.
The parties will bear their own costs up to this stage.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellants had applied for compensation to the Jagir Abolition Officer under section 13 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953 in respect of their proprietary jagirs.
Against the orders of the said officer they preferred appeals to the Revenue Tribunal which were dismissed for non prosecution.
The appellants thereupon filed applications for restoration of the appeals within 30 days of the receipt of the orders of dismissal of the appeals.
These applications were dismissed as time barred, the Tribunal taking the view that time was to be calculated from the date of the order.
The appellants ' applications under article 227 of the Constitution to the High Court failed and they came by way of special leave, to this Court.
It was contended on behalf of the appellant that (i)the Tribunal even while deciding ex parte had to decide on merits and that (ii) the applications for restoration were filed within the time prescribed in Regulation 21 made under the Bombay Revenue Tribunal Act, 1958 which applied to the case.
HELD:(i) In the context of section 20 and ;in view of the express language of section 17(1) of the Jagirs Abolition Act the Tribunal had no power to dismiss the appeals in question for non prosecution, but it was obligatory on its part of decide the appeals on merits and to record is decision even though there was default on the part of the appellant to appear in the appeal.
[142 E F] (ii) The Tribunal also committed an error of law in dismissing as time barred the applications for restoration of the appeals made by the appellants.
In Regulation 21 made under Bombay Revenue Tribunal Act, 1958 the time prescribed for such applications is thirty days from the date of receipt of the Tribunal 's order dismissing the appeal, and the appellants had filed their applications within the said period.
[145 A, B] Regulation 21 lays down the procedure for dealing with applications for restoration made under Regulation 20 and the latter Regulation includes within its scope all appeals 'decided ex parte ' whether on merits or otherwise.
It could not therefore be said that Regulation 21 did not apply to the case.
[144 H]


judgement:
Appeals Nos. 926 and 927 of 1965.
Appeals from the judgment and decree dated November 25, 1962 of the Madhya Pradesh High Court (Indore Bench) at Indore, in First Appeals Nos. 19 and 23 of 1957 respectively.
166 section V. Gupte, Solicitor General, Rameshwar Nath, section N. Andley, P. L. Vohra and Mahinder Narain, for the appellant.
section P. Sinha, Ganapat Rai, E. C. Agarwala and P. C. Agarwala, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by certificate on behalf of the defendant from the judgment of the High Court of Madhya Pradesh, Indore Bench, dated November 20, 1962 in First Appeals Nos. 19 and 23 of 1957.
The plaintiffs, Rup Chand and Hukam Chand instituted Civil Suit No. 8 of section 1999 in the Court of District Judge, Ujjain, against the defendant Vithal Das and three others, for partition of houses and for rendition of accounts.
Two of the defendants, Bheronlal and Indermal died in the course of the suit and the suit was continued against Vithal Das.
The plaintiffs alleged that the immovable property constituting Blocks Nos. 206 and 207 in Freeganj, Ujjain was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were, at one time, partners and by two documents dated July 2, 1937 and July 16, 1937, the properties continued to remain in the ownership of the partnership firm, though the firm had been dissolved in the year 1937.
The plaintiffs claimed that the properties were managed by the defendant on behalf of the plaintiffs and the defendant realised rents from the tenants on their behalf and plaintiffs were, therefore entitled to receive half the amount realised as rent and the defendant was liable to render accounts thereof.
The plaintiffs also claimed parti tion of the joint properties, or in the alternative, the sale of the property by auction and after deducting the cost of auction, half of the sale proceeds.
The defendant contested the suit on the ground that at the time of the execution of the document dated July 2, 1937 there were only three blocks in partnership which were at that time open land.
The defendant claimed that Block 'No. 206 and the building constructed thereon was not a partnership property.
It was further alleged that the defendant had invested Rs. 10.000 in the three blocks of land which were held in partnership for constructing a building.
The trial court accepted the plaintiffs ' case and granted a decree for partition of the blocks and for an account of income realised in respect of the property situated on block No. 207.
As regards block No. 206 and the property standing thereon the trial court directed the defendant either to remove the construction or accept his share of money spent by the defendant over it and created a charge over the property in respect of the amount so held payable.
Both the parties preferred appeals in the High Court of Madhya Pradesh against the judgment of the trial court which partially allowed the appeals and remanded the case to the trial Court.
The High Court held that the plaintiffs were entitled to claim half share in both the properties built on blocks Nos, 206 and 207 and the defendant was liable to account 167 for the income of the properties on block No. 207 from the date of dissolution i.e., from July 2, 1937 and of block No. 206 from the year 1939.
The High Court also held that the plaintiffs were liable to pay half the costs spent by the defendant in constructing the building on block No. 206.
After the order of remand the trial Court appointed a Commissioner for examining accounts of rent realised by the defendant.
After considering the report of the Commissioner, the trial Court determined the total amount of rent of both the blocks Nos. 206 and 207 at Rs. 41,829/3/7 and the half share of the plaintiffs was determined at Rs. 20,914/4/9.
The trial Court also awarded interest to the plaintiffs on the half share of the income to the extent of Rs. 6,676/7/3 calculated upto April 11, 1957.
The total amount thus due to the plaintiffs was determined at Rs. 27,591 /1/ .
Out of this amount the trial court allowed sum of Rs. 9,755/7/3 on account of the half costs of ' construction and interest thereon and expenses incurred for house tax, water tax, legal expenses and repairs.
The net amount thus awarded to the plaintiffs was Rs. 17,670/9/9.
As regards the partition of blocks Nos. 206 and 207, the trial court held that in view of the method of construction of the blocks it was not possible to make partition in equal shares and therefore the trial court directed that the two blocks should be auctioned in separate lots and the parties should be at liberty to bid at the auction and the parties would have equal rights to the amount of the auction.
Aggrieved by the judgment of the trial court both the parties preferred appeals to the High Court of Madhya pradesh, namely, First Appeals Nors.
19 and 23 of 1957.
The defendant 's appeal was registered as Civil First Appeal No. 19 of 1957 and the plaintiffs ' appeal was registered as Civil First Appeal No. 23 of 1957.
Both, the appeals were heard and disposed of by a common judgment by the High Court which modified the trial court 's finding, as to the income of blocks 206 and 207 to the extent of Rs. 803/ '5/3 by reducing the income of the two blocks by that figure. 'The total income was thus reduced from Rs. 41,829/3/7 to Rs. 41 015,/14/4 with the corresponding,reduction in the amount of interest.
The High Court affirm the finding of the trial court that tile defendant was liable to pity interest on the half share of the rental income on the ground that the relationship between the parties was in the nature of a truest under section 90 of the Trusts Act (Act 11 of 1882).
The plaintiffs ' appeal No. 23 of 1957 was allowed to the extent of Rs. 4,942/9/after adjustment, the plaintiffs ' claim was decreed for Rs. 22,103/ .
The first question for consideration in these appeals is whether the High Court was right in granted interest to the plaintiffs on their share of rental income to the extent of Rs. 6,676 / 7 / 3 for the period prior to the institution of the suit.
It was argued by the Solicitor Geiieral on behalf of the appellant that the High Court was in error in appellant that the relationship between the prince was governed by section 90 of the Trusts Act and the plaintiffs were therefore entitled to interest on their share of rent under the provi LIS5SCI 13 168 sions of section 23 of that Act.
In our opinion, the contention put forward by the Solicitor General is well founded and must be accepted as correct.
It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law as for instance section 80 of Negotiable Instruments Act or section 23 of the Trusts Act.
It is admitted in the present case that the two agreements between the parties dated July 2, 1937 and July 16, 1937 did not provide for payment of interest on the rental realised by the defendant on the joint properties.
Nor is interest payable by virtue of any provision of the law governing the case.
Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument.
But it is conceded that the position in the present case is different.
It was suggested by Mr. section P. Sinha on behalf of the respondents that interest may be awarded under the Interest Act which contains a provision that "interest shall be payable in all cases in which it is now payable by law".
But this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest.
The legal position has been explained by the Judicial Committee in Bengal Nagpur Rly.
Co. Ltd. vs Ruttanji Ramji(1) at p. 72 as follows: "As observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. vs Hart, , at p. 640; (AIR 1939 PC 185 at p. 188), 'In order to invoke a rule of equity It is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non performance of a contract of which equity can give specific performance '.
" The decision of the Judicial Committee in Bengal Nagpur Rly.
Co. Ltd. vs Ruttanji Ramji(1) was relied upon by this Court in Thawardas Pherumal vs Union of India(1) in rejecting a claim for interest.
In that case, a contractor entered into a contract with the Dominion of India for the supply of bricks.
A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration.
The dispute having arisen, the matter was referred to arbitration and the arbitrator gave an award in the contractor 's favour.
The Union of India which has succeeded to the rights and obligations of the Dominion, contested the award on various grounds one of which was the liability to pay interest on the amount awarded.
It was held by this Court that the interest awarded to the contractor could not, in law, be awarded and the arbitrator is not a Court within the meaning of the Interest Act, 1839 and.
in any event, interest could only be awarded if there was (1) 65 I.A. 66.
(2) 169 a debt or a sum certain payable at a certain time or otherwise by virtue of some written contract and there must have been a demand in writing stating that interest will be demanded from the date of the demand.
The same view has been expressed by this Court in two later cases Union of India vs Rallia Ram(1) and Union of India vs Watkins Mayor and Co.(2).
It was, however, pointed out for the respondents that the defendant was in possession of the entire properties as co owner after the dissolution of the partnership by the document dated July 16, 1937.
It was argued that the defendant was realising rents of all the properties and he was in the position of a constructive trustee under section 95 of the Trust Act and was liable therefore to pay interest on the plaintiffs ' share of rent under section 23 read with section 95 of the Act.
We do not consider there is any justification for this argument.
Section 90 of the Act states: "Where a tenant for life, co owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to payment by such persons of their due shares of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage." Section 95 provides as follows: " The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it: Provided that (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment , and (b) where he holds the property by virtue of a contract with a person for whose benefit he holds it, or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgagee of the property or any part there of.
" Section 23 reads as follows: "Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary has thereby sustained, unless the beneficiary has by (1) A.I.R. 1963 S.C. 1636.
(2) A.I.R. 1966 S.C. 275.
170 fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of the facts of the case and of his rights as against the trustee.
A trustee committing a breach of trust is not liable to pay interest except in the following cases: (a) where he has actually received interest; (b) where the breach consists in unreasonable delay in paying trust money to the beneficiary; (c) where the trustee ought to have received interest, but has not done so; (d) where he may be fairly presumed to have received interest.
He is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d) to account for simple interest at the rate of six per cent.
per annum, unless the Court otherwise directs. . . " We do not agree with the contention of the respondents that section 90 of the Trusts Act applies to this case.
A co owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants.
If the co owner is to be clothed with the status of a trustee it must be shown that he has gained some advantage in derogation of the other co owners interested in the property and that he gained such an advantage by availing himself of his position as co owner.
In the present case, there is no allegation made by the plaintiffs that the defendant has gained any advantage in derogation of the rights of the plaintiffs, nor is there any finding of the lower courts that the defendant gained any advantage by availing himself of his position as co owner.
We shall, however, assume in favour of the respondents that the defendant is in the position of a constructive trustee in view of the provisions of section 90 of the Trusts Act.
Even upon that assumption we are of opinion that the defendant is not liable to pay interest to the plaintiffs for their share of the rent of the properties.
The reason is that the trustee is liable to pay interest only if he commits a breach of trust under section 23 of the Trusts Act.
There is also the restriction contained in section 23 of the Trusts Act, namely, that a trustee committing a breach of trust is not liable to.
pay interest except in the cases mentioned in that section.
It was argued by Mr. section P. Sinha for the respondents that the defendant was liable to pay interest under section 23(b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary.
We are unable to accept this argument as correct.
In 171 our opinion, section 23(b) contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand.
In our opinion, there is no question of breach of trust on the part of the, defendant in the present case and the provisions of section 23(b) of the Trusts Act are not attracted.
The view that we have expressed is borne out by several authorities.
In Blogg vs Johnson(1), Lord Chelmsford, L.C. stated that "the Court will not charge an executor who has been guilty of delay in accounting, with interest on arrears of income unpaid by him".
In that, case, X was entitled to a life income from the estate of her husband, and died in 1861.
A bill was filed by her executor, in 1862, against the executor of her husband 's will, who had been his partner in business, for an account of income due to her estate; in 1863 accounts were directed.
In 1866 a certificate was made, finding that a large sum was due from the husband 's executor.
It was held by Lord Chelmsford, L.C. that he was not chargeable with interest before the date of the certificate.
Again, in Silkstone and Haigh Moor Coal Co. vs Edey(2), it was held by the Chancery Court that upon the setting aside of a sale by a trustee of trust property to himself, and the reconveyable of the property to the beneficiaries, it is not the practice of the Court to charge the trustee with interest on the rents and profits received by him since the date of the sale.
Interest was, however, charged on arrears in some cases as in Malland vs Gray(1) and Guildrey vs Stevens(1), but these cases fall within the range of another principle of equity that where an executor or a trustee unnecessarily detains money in his hand which he ought either to have invested or to have paid over to the person entitled to it, he will have to pay interest for it.
As Lord Chelmsford, L.C. observed in Blogg vs Johnson(1) at p. 228: "Where money is thus improperly retained, it appears to me to be immaterial how the sum has arisen, whether from a legacy, or a distributive share, or a residue, or the arrears of income.
In the latter case, the claim for interest is not made on account of the arrears, but for the improper keeping back or a sum of money, from whatever source derived, which the executor or trustee ought to have paid over.
" We have already given reasons for holding that the provisions of section 23(b) of the Trusts Act do not apply to the present case and the plaintiffs are not entitled to claim any interest on arrears of rent and the High Court has fallen into an error in granting such interest.
The next contention raised on behalf of the appellant is that the Commissioner examined the accounts and submitted his report from July 2, 1937 to December 31, 1954 and the High Court was not justified in granting a decree to the plaintiffs for the subsequent (1) 1867 2 Ch.
A. 225.
(3) E.R. 744.
(2) (4) 172 period from January 1, 1955 to April 11, 1957 on the basis of the figures found from the Commissioner 's report.
It was argued that the High Court had no basis for assuming that the same rental income was received by the defendant for the period from January 1, 1955 to April 11, 1957 as for the prior period.
In our opinion, there is great force in this argument and we should, in the normal course, remand the case to the High Court for a finding as to the accounts of the subsequent period.
Mr. Sinha, however, pointed out that the litigation commenced in 1942 and has already been pro tracted too ]on .
We do not, therefore, wish to remand the case to the High Court for further inquiry.
Having examined the evidence on the record of this case, we consider that, in the circumstances, a sum of Rs. 2,400/ (instead of Rs. 3,100/ ) for the period from January 1, 1955 to April 11, 1957 should be granted to the plaintiffs as their share of profits.
We direct that the interest may be granted to the plaintiffs at the rate of 6 per cent p.a. from November 20, 1962 which is the date of the final decree on the amount found due to the plaintiffs.
Two other points were raised by the Solicitor General in the course of argument.
It was pointed out, in the first place, that First Appeal No. 23 of 1957 filed by the plaintiffs in the High Court was barred by limitation and the High Court should have dismissed the appeal on that ground.
It was argued that the trial courts judgment was delivered on April 11, 1957 and the appeal to the High Court was filed on July 22, 1957.
A certified copy of the judgment was delivered to the plaintiffs on May 4, 1957 but the endorsement on the certified copy with regard to the date was fraudulently made.
An application was made by the defendant to the High Court on November 20, 1961 drawing the attention of the High Court with regard to the endorsement on the certified copy of the judgment.
There is, however, no reference in the judgment of the High Court on the question of limitation and it should, therefore, be taken that the point was not pressed on behalf of the defendant at the time of the hearing of the appeal by the High Court.
It is, therefore, not possible for us to entertain the argument of the appellant at the present stage, in the absence of any finding of the High Court.
The other objection put forward by the Solidtor General is that the High Court has not taken into account vacancies in the computation of the rental income due to the plaintiffs.
It was said that the High Court was wrong in holding that the defendant was liable as a trustee for the rents he ought to have realised even though there was no letting of the building.
The Solicitor General may be right in his argument that the defendant cannot be held liable as a constructive trustee for the rent he has not realised from the tenants and for the premises which were not let out to tenants and which had been lying vacant, but the ground upon which the High Court has made the defendant liable is different.
The High Court has taken the view that the defendant has 173 not kept proper accounts of the income of the rents realised from the shops.
In the absence of proper accounts it is not possible to accept the case of the defendant regarding the vacancies.
In our opinion, the finding of the High Court on this point is not vitiated by any error of law and the argument of the Solicitor General must be rejected on this aspect of the case.
For the reasons already expressed, we hold that these appeals should be partly allowed with proportionate costs and the decree of the High Court dated November 20, 1962 should be modified to the extent indicated in this judgment.
Appeals allowed in part.

summary/full:
The plaintiffs instituted a suit for partition of immovable property constituting two blocks and for rendition of accounts.
They claimed that the property was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were Partners and that by two documents dated July 2, 1937 and July 16, 1937, the properties continued to remain in the ownership of the partnership firm, though the firm was dissolved in 1937.
The defendant contested the suit on various grounds and also alleged that he had invested Rs. 10,000/ for constructing a building on the land in one of the blocks.
The trial Court granted the plaintiffs a decree for most of the reliefs sought.
The High Court, in appeal, held that the plaintiffs were entitled to claim half share in the properties and that the defendant was liable to account for the income from the date of dissolution i.e. July 2, 1937 in the case of one block and from 1939 in the case of the other block and furthermore that the plaintiffs were liable to pay half the amount spent by the defendant in constructing the building on one of the blocks.
Upon a remand of the case to the trial Court a Commissioner was appointed to examine the accounts of rent realized by the defendant and on the basis of his report, the trial court granted the plaintiffs a decree for the amount payable to them as their half share, together with interest upto April 1957 and after deducting the plaintiffs ' share of the expenditure incurred by the defendant on the building.
In further appeals to the High Court by both the parties the decision of the trial court was substantially confirmed.
In the appeal to this Court by the defendant, it was contended, inter alia, on his behalf that the trial court and the High Court had erroneously decided that the defendant was liable to pay interest for the period prior to the institution of the suit on the half share of the rental income on the ground that the relationship between the par ties was in the nature of a trust under Section 90 of the Trusts Act, 1882.
On the other hand the contentions for the respondents were that interest prior to the date of institution of the suit could be paid to them under the Interest Act, 1839: that the defendant was in possession of the entire properties as as Owner after the dissolution of the partnership by the document dated July 16, 1937 and that as he 165 was realizing rents of the properties, he was in the position.
of a constructive trustee under section 95 of the Trusts Act and was liable therefore to pay interest on the plaintiffs ' share of rent under section 23 read with section 95 of the Act; and that he was in any event liable to pay interest under section 23(b) of the Trusts Act because there was unreason able delay in paying the trust money to the beneficiary.
HELD: Interest was only payable to the plaintiffs at the rate of 6% per annum from the date of the final decree on the amount found due to the plaintiffs.
It is well established that interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law as for instance under section 80 of Negotiable Instruments Act or section 23 of the Trusts Act.
It was admitted in the present case that the two agreements between the parties dated July 2,1937 and July 16,1937 did not provide for payment of interest on the rental reilised by the, defendant on the joint properties.
Nor was interest payable under any provision of law governing the case.
Under the Interest Act, 1839, the court may allow interest if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument but it was conceded that was not the position in the present case.
The provision in section 1 of the Interest Act that "interest shall be payable in all cases in which it is now payable by law," applied only to cases in which the Court of Equity exercised jurisdiction to allow interest.
[168 B D].
Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji 65 I.A. 66, Thawardas Pharumal vs Union of India, Union of India vs Rallia Ram, ; and Union of India vs Watkins Mayor & Co. A.I.R. 1966 section C. 275, referred to.
There was no force in the contention that section 90 of the Trusts Act applied to this case.
A co owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants.
If the co owner is to be clothed with the status of a trustee, itmust be shown that he has gained some advance in derogation ofthe other co owners interested in the property and that he gained such advantage by availing himself of his position as co owner.
In the present case, there was no allegation or finding by the trial court that the defendant had gained any such advantage.
[17O E] Even assuming that the defendant was in the position of a constructive trustee, he would be liable to pay interest under section 23 only if he committed a breach of trust and in the present case there was no question of any such breach on his part.
Furthermore, he was not liable to pay interest under section 23(b) as that provision contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand.
[170 F].
Blogg vs Johnson., [1867] 2 Ch.
A 225, Silkstone and Haigh Moor Coal Co. vs Edey, ; Malland V. Gray and Guildrey vs Stevens , referred to.


judgement:
il Appeal No. 255 of 1964.] Appeal by special leave from the judgment and order dated November 14, 1960 of the Madhya Pradesh High Court in Misc.
Petition No. 273 of 1959.
B. Sen, R. P. Kapur and 1.
N. Shroff, for the appellants.
section P. Sinha, and section Shaukat Hussain, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Under a contract dated October 14.
1956, the respondent was granted a right to the forest produce from Coupe No. 9, Lendara in the Saiura Borgain Reserved Forest in the Kanker Forest Division of Bastar District of Madhya Pradesh, for the period October 14, 1956 to March 31, 1958.
The Divisional Forest Officer held an enquiry in respect of certain breaches committed by the respondent of the terms of the contract, and by order dated January 30, 1958 directed the respondent in exercise of the authority under r. 15(1) of the Forest Contract Rules framed by the Government of Cenytral Provinces & Berar, to pay Rs. 8,500 as compensation assessed by him for damage done in the reserved 159 forest and Rs. 500 as penalty under r. 30(1) of the Forest Contract Rules.
An appeal against the order to the Conservator of Forests, and a revision petition to the Chief Conservator of Forests, Madhya Pradesh, were unsuccessful.
The respondent then moved the High Court of Madhya Pradesh by a petition under article 226 of the Constitution for a writ quashing the order dated January 30, 1958 directing payment of compensation and penalty and restraining enforcement of the order.
The High Court granted the petition and restrained the State and the forest authorities from recovering Rs. 9,000, ordered on January 30, 1958, from the respondent.
In this appeal, the appellants contended in the first instance that the High Court was in error in holding that by r. 15 of the Forest Contract Rules the Divisional Forest Officer was not authorized to direct the contractor to pay compensation for damage done by him or his agents or servants, because the coupe was not in "a reserved forest".
Such a case, it was said, was never pleaded by the contractor in his petition, and the High Court in granting relief to the respondent made out a case which the appellants had no opportunity to meet.
In support of their case that the coupe is a part of the reserved forest, the appellants have annexed to their petition for special leave a "true copy" of a notification issued under section 20 of the , as applied to the Central Provinces, declaring that the State forests of the Bastar District in Tahsil Kanker Sainmura Borgaon specified in the Schedule shall be reserved forests.
We agree with the appellants that the High Court has without any plea or evidence assumed that compensation under r. 15(1) could not be directed to be paid by the contractor for damage done in the coupe, for which he was given a contract, because the coupe was not included in a. reserved forest.
The plea which appealed to the High Court was not raised in the petition, nor in the objections to the Divisional Forest Officer in reply to the notice to show cause, nor in the memorandum of appeal before the Conservator of Forests, nor in the petition invoking the revisional jurisdiction of the Chief Conservator of Forests.
The High Court assumed that because the forest authorities charged the contractor with "illegal fellings in the coupe" granted to him, the "fellings could not be in a reserved forest".
For this assumption there is no warrant.
The High Court was therefore in error in setting up the ground that the impugned order was not authorised by the terms of r. 15(1).
But the appeal filed by the appellants must still fail on the grounds to be presently set out.
The following are the relevant terms of the contract: "1.
The Governor hereby agrees to sell to the forest contractor, and the forest contractor agrees to purchase the forest produce described in the First Schedule hereunder 160 . .situated in the area specified in the said Schedule. . on the conditions hereinafter stated.
" The First Schedule describes the area of the forestand sets out the forest produce sold under the contract.
The forest contractor shall be subject to the Forest Contract Rules as amended from time to time (a copy of which has been furnished to the forest contractor, the receipt of which the forest contractor hereby acknowledges) and the Rules shall be deemed to De part of this contract in so far as they are applicable thereto: Provided that the said Rules shall be deemed to be modified to tile extent and in the manner laid down in the Second Schedule hereunder." "7.
The forest contractor hereby binds himself to perform all acts and duties required, and to abstain by himself and his servants or agents from performing any act forbidden by the , by the Forest Contract Rules and by this contract.
In the event of any doubt or dispute arising between the parties as to the interpretation of any of the conditions of this contract or as to the performance or breach thereof, the matter shall be referred to the Chief Conservator of Forests, Madhya Pradesh, Nagpur, whose decision shall be final and binding on the parties hereto." By cl. 6 of the contract, the Forest Contract Rules framed by the local Government are made part of the contract.
The material clauses of the Rules read as follows: "2.
All contracts whereby Government sells forest produces to a purchaser shall be subject to the following rules, in so far as they are applicable, and these rules, in so far as they are applicable, shall be deemed to be binding on every forest contractor not only as rules made under the Forest Act, but also as conditions of his forest contract: Provided that the forest officer executing a forest contract shall have power to vary these rules by express provision in such contract, and where these rules are in conflict with such an express provision, such express provision shall prevail:Provided further "15(1) A forest contractor shall be responsible for any damage that may be done in a reserved forest by himself or his servants and agents.
The compensation for such damage shall be assessed by the Divisional Forest Officer, whose decision shall be deemed to be that of an arbitrator and shall be 161 final and binding on the parties, except to the extent that it shall be subject to an appeal to the Conservator of Forests.
Explanation. . (2) Any sum assessed as damages under this rule shall be recoverable as arrears of land revenue. . . "30(1) Where the forest contractor commits a breach of any of the conditions of his contract but it is not proposed to terminate his contract on account thereof, the whole penalty provided for in rule 28 shall not be recovered from him, but the Divisional Forest Officer shall have power to recover a portion thereof, not exceeding five hundred rupees, in accordance with the provisions of section 85 of the Act.
(2) An order of the Divisional Forest Officer under this rule shall be subject to appeal to the Conservator of Forests if the amount levied exceeds two hundred rupees, but shall otherwise be final.
(3)The payment of a sum assessed under this rule shall absolve the forest contractor from all further liabilities under his contract in respect of such breach, except his liability under rule 15 for damage done in a reserved forest.
" On behalf of the respondent it was urged before the High Court, as also before this Court, that where a dispute arose between the Divisional Forest Officer and the contractor, whether the contractor, his servants or agents had caused damage in a reserved forest, the question could be decided in the manner appointed in cl. 9 of the contract alone, i.e., by arbitration of the officer denominated, and not by the Divisional Forest Officer.
In dealing with the validity of the order imposing penalty upon the contractor the High Court upheld that argument.
Rule 15 in the first instance declares that the forest contractor shall be responsible for any damage done either by himself, or his servants or agents: it then proceeds to state that compensation shall be assessed by the Divisional Forest Officer whose decision shall be deemed to be that of an arbitrator subject to an appeal to the Conservator of Forests.
The rule does not confer upon the Divisional Forest Officer authority to determine, when a dispute is raised, whether damage has been caused in a reserved forest by the contractor, his agents or his servants.
The rule only declares that for damage that may be done, by the contractor, his servants or agents, in the forest, the contractor shall be liable: the rule also invites the Divisional Forest Officer with authority to determine the amount of compensation payable by the contractor, but not to determine whether the contractor, his servants or his agents have committed breach of the contract.
Clause 9 of the contract confers authority upon the Chief Conservator of Forests to adjudicate upon disputes, inter alia, as to the performance or breach of the contractor.
I read with the Schedule to the contract "the contractor had to fell or uproot 162 trees marked with a geru band or to fell trees on coupes and section lines which bear a marking hammer impression on the stump buttends and all Karra over 9" at B.H. whether marked or not".
It was the case of the Divisional Forest Officer that the contractor had, contrary to the terms of the contract, cut trees not marked with the geru band.
Plainly, the Divisional Forest Officer claimed that the contractor had committed a breach of the terms of the contract, and when the contractor denied the breach, a dispute arose between the parties as to the performance or breach of the terms of the contract, and it had to be referred to the Chief Conservator of Forests.
It is conceded, and in our judgment counsel is right in so conceding, that the expression "shall be referred to" means "shall be referred to the Officer denominated" as an arbitrator to decide the dispute.
It was argued however that by virtue of cl. 6 of the contract, the Forest Contract Rules were made part of the contract, and the Divisional Forest Officer was invested with authority not only to determine the amount of compensation which may be payable by the contractor for damage done in a reserved forest, but also to determine whether the contractor or his agents or servants had been responsible for causing the damage.
This, for reasons already stated, we are unable to accept.
There is no inconsistency between cl. 9 of the contract and r. 15.
It is unnecessary, therefore, to consider whether in case of inconsistency, the terms of the contract expressly setting out a certain covenant may supersede the terms of the rule.
Under r. 15 the liability for damage done in a reserved forest is declared against the contractor.
He is also declared liable to pay compensation as may be assessed by the Divisional Forest Officer.
But the Divisional Forest Officer is not invested with authority to determine whether the damage was done by the contractor, his agents or servants.
That is a matter which must be determined in a reference under cl. 9 of the contract.
It was urged by the appellants that it could not have been intended by the rule making authority, who had also prescribed the form as part of the rules in which the contract was required to be executed, to set Lip a complicated and clumsy procedure for determination of a dispute about the breach of contract, if the language of the rules were ambiguous, this may be a relevant consideration.
When a dispute arises between the contractor and the forest authorities relating to the performance or breach of the contract, there has, under the terms of cl. 9, to be a reference to the Officer denominated in the contract.
After liability is determined, there may have to be an assessment by the Divisional Forest Officer of compensation payable by the contractor to the State.
163 That would necessitate another inquiry.
The procedure is apparently clumsy and likely to be dilatory.
But we are unable to ignore the plain terms of the contract and the rules, and to hold that in respect of the determination of responsibility for damage done in a reserved forest, there need be no reference under cl. 9 of the terms of the contract.
It was then urged that in any event a decision was in fact given by the Chief Conservator of Forests in this case, and that decision complied with the requirements of cl. 9 of the contract.
But as already stated, the Divisional Forest Officer passed an order holding the respondent liable to pay compensation for damage done in a reserved forest and assessing the compensation at Rs. 8,500 and penalty at Rs. 500.
That order was confirmed in appeal by the Conservator of Forests, and in exercise of his revisional jurisdiction the Chief Conservator of Forests upheld the order of the Conservator of Forests.
The Chief Conservator of Forests did not even purport to act as an arbitrator: he recorded no evidence, and expressly held that the Divisional Forest Officer was not obliged to refer the case for arbitration under cl. 9 of the contract, The trial was not of a proceeding in arbitration, but of a proceeding in exercise of supervisory or revisional jurisdiction.
If in truth the dispute had to be referred for adjudication to the Chief Conservator of Forests, his decision that he found no reason to interfere with the "findings of the Divisional Forest Officer" who was one of the parties to the dispute, cannot conceivably be regarded as an award between two contesting parties.
It must therefore be held that the order passed by the Divisional Forest Officer imposing liability for compensation for damage done by illegal fellings cannot be sustained.
The second part of the order imposing penalty under r. 30(1) also suffers from the same infirmity.
It is true that under the rule the Divisional Forest Officer had power to impose penalty in a sum not exceeding Rs. 500.
But exercise of that power is conditioned by the existence of a breach by the forest contractor of any of the terms of the contract.
Where a, dispute arises whether there has been a breach of any of the terms of the contract, it is, for reasons already stated, to be determined by the Chief Conservator of Forests.
That has admittedly not been done.
The order imposing penalty under r. 30(1) must also be set aside.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

summary/full:
Under r. 15(1) of the Central Provinces and Berar Forest Contract Rules a forest contractor is responsible for any damage done in a reserved forest by himself or his servants or agents and compensation for such damage is to be assessed by the Divisional Forest Officer.
The respondent was, under a contract, granted a right to the forest produce.
By cl. 9 of the Contract any doubt or dispute arising between the parties as to the performance or breach of any of the conditions of the contract had to be referred to the Chief Conservator of Forests for decision.
The Divisional Forest Officer, acting under r. 15(1), held that the contractor committed a breach of the contract and assessed the compensation for damages.
HELD:Rule 15(1) does not invest the Divisional Forest Officer with authority to determine whether the contractor, his servants or his agents have committed a breach of the contract.
When a dispute arises between the contractor and the forest authorities relating to the performance or breach of the contract, there has to be, under the terms of cl. 9, a reference to the officer denominated in the contract.
After liability is determined, there may have to be an assessment, by the Divisional Forest Officer,, of compensation payable by the contractor to the State, There is no inconsistency between cl. 9 of the Contract and r. 15 [161 F H; 162 E F].


judgement:
Appeal No. 374 of 1965.
Appeal by special leave from the judgment and decree dated August 9, 1963 of the Madras High Court in L.P.A. No. 45 of 1962.
A. V. Narayanaswami Iyer and section Venkatakrishnan, for the appellant.
A. K. Sen, N. Natesan and R. Ganpathy Iyer for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment and decree of the Madras High Court dated August 9, 1963 in Letters Patent Appeal No. 45 of 1962.
119 The suit which is the subject matter of this appeal was filed by the Tirunagar Panchayat, hereinafter called the 'Panchayat ', against the Madurai Co operative House Construction Society (hereinafter called the 'Society ') in the District Munsif 's Court of Tirumangalam.
The Tirunagar Colony has been formed by the Society.
The Colony consists of about 300 houses and its total population exceeds 1,500.
At its inception the colony was within the jurisdiction of the Tirupparakundram Panchayat.
On February 21, 1955 the Tirunagar colony was excluded from Tirupparankundram Pan chayat and was declared as a separate village and was constituted as a separate Panchayat known as Tirunagar Panchayat.
In the formation of the colony the Society has laid out and set apart and formed public roads, parks, play grounds and other public common places.
There was a change in the Board of Directors of the. defendant Society and as a consequence of this change the Society passed a resolution on July 23, 1956 cancelling its previous resolution handing over the roads, streets and scavenging arrangements to the Panchayat.
The Panchayat therefore filed a suit O.S. 38 of 1957, in the District Munsif 's Court of Tirumengalam for an injunction restraining the Society and its servants from obstructing and interfering with its lawful exercise of statutory duties relating to the roads and streets in Tirunagar and cleaning of latrines, public and private, lighting the houses and roads and making arrangements for the civic needs of the village of Tirunagar.
The Society contested the suit on the ground that the constitution of the Panchayat was illegal as the provisions of the Madras Village Panchayats Act (Madras Act 10 of 1950), hereinafter to be called the 'Act ', had not been complied with.
The Society also contended that the public cannot use the roads or streets as a matter of right, that the entire colony was a closed one and no outsider except the members of the Society had the right to enter the colony and that the Parks, central oval, play grounds and open spaces were the exclusive properties of the Society.
The contentions of the Society were all over ruled by the trial court and a permanent injunction was granted to the plaintiff Panchayat, as prayed for.
The decision of the trial court was affirmed by the Subordinate Judge of Madurai in A.S. 92 of 1958.
The Society took the matter in Second Appeal to the High Court.
The appeal was partly allowed by Ramakrishnan,J. who held that the streets and roads in Tirunagar colony alone would vest in the Panchayat and that the injunction passed by the lower appellate court should be confined only to streets and roads in the colony and should not be extended to any other place like the parks, oval park, play grounds, schools, library or club and such other amenities which the Society had provided for the residents of the colony.
The decision of Ramakrishnan, J. was affirmed by the High Court in Letters Patent Appeal and the injunction granted by the lower courts was accordingly Confined to roads and streets and the cleaning of public and private latrines, and the decree of the lower courts was set aside so far as the injunction related to the parks.
play grounds, bus stand and other public places.
120 The question presented for determination in this appeal is whether there is a statutory vesting in the panchayat of the parks, play grounds, schools, libraries and other public places which the Society provided for its members and whether the Panchayat is entitled to a permanent injunction restraining the Society and its servants in the manner decreed by the trial court.
On behalf of the appellant reference was made to sections 56 and 58 of the Act relating to vesting of the property in the Panchayat.
Section 56 of the Act reads as follows: "56.
(1) All public roads in any village (other than district roads and roads which are classified by the Government as national or State highways), shall vest in the panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drawings works tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.
Section 58 is to the following effect: "Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation shall vest in the panchayat and be administered by it for the benefit of the villagers or holders aforesaid.
" The rules framed under the Co operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres, hospitals, clubs, religious places etc.
should be made in the layout.
Reference was made, on behalf of the appellant, to the layout plan exhibit A 44 for the Tirunagar Housing colony.
There is evidence in this case that the Government had assigned to the House Building Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc.
It was submitted on behalf of the appellant that the parks, play grounds, hospitals, schools etc.
of the Tirunagar Housing Colony would vest in the Panchayat under section 58 of the Act.
We do not consider that there is any justification for this argument.
Under section 56 of the Act all 'public roads ' in any village shall vest in the Panchayat together with all, pavements, stones and other materials thereof, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise.
Under section 2(20) of the Act a ` public road ' means "any street, road, square, court, alley, passage, cart track, footpath or riding path, over which the public have a 121 right of way".
Section 58 of the Act provides for vesting of the communal property in the panchayat.
By this section the legislature has provided that any property or income which by custom belongs to the villagers in common, or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat.
The legislature has further provided in this section that any property or income which by custom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid.
In enacting section 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (1) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or of lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description.
Having regard to the grammatical structure and the context, we are of opinion that the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common.
It is manifest that section 58 provides for the vesting of such property and income to which the villagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom.
It was argued on behalf of the appellant that if parks or play grounds or markets had been.
dedicated to the public the Panchayat would acquire title to such properties under section 58 of the Act.
We do not think that dedication is a relevant circumstance in considering the scope and meaning of section 58 of the Act.
In the enactment of this section the legislature did riot contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact of such dedication.
What is required by section 58 for the ' purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income.
Vesting of rights takes place under section 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common.
Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income ad ministered for the benefit of the villagers in common.
For example, the Society may have established a library or a social club or a school for the benefit of its members Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village.
In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of section 58 of the Act.
It cannot be supposed that such a startling and unjust result was contemplated by the, 122 legislature in enacting section 58.
We are accordingly of the opinion that the scope of section 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.
For these reasons we hold that the judgment and decree of the High Court in Letters Patent Appeal No. 45 of 1962 is correct and this appeal must be dismissed with costs.
Appeal dismissed.

summary/full:
The respondent Society formed a housing colony, laid out public roads and set apart public common places for parks.
play grounds, schools, library, hospital and club for the benefit of the members of the colony.
The respondent passed a resolution for handing over the roads and the other common places to the appellant Panchayat, but later, passed another resolution cancelling it.
The appellant, thereupon, filed a suit for an injunction restraining the respondent from obstructing the appellant in the exercise of its statutory duties in relation to the roads and other common places.
The High Court, on appeal, held that the streets and the roads in the colony alone would vest in the appellant under the Madras Village Panchayats Act, 1950 and that, an injunction could be granted only with respect to them, but not, with respect to the other amenities which the respondent had provided for the residents of the colony.
In appeal to this Court, it was contended that the amenities excluded would also vest in the appellant under section 58 of the Act, especially because they had been dedicated to the public.
HELD:The scope of the section must be confined to communal property and income of the Panchayat which, by custom, belong to the villagers in common, or, has been administered for their benefit as a matter of custom.
Therefore, the section cannot be extended to amenities such as parks, play grounds etc.
provided by the respondent for the benefit of the members of the colony; and dedication is not a relevant circumstance in considering its scope and meaning.
[121 E F; 122 A B].