judgement:
l Appeals Nos. 176 and 176 A of 1952.
Appeals by Special Leave granted by the Supreme Court on the 20th February, 1952, and 23rd May, 1952, respectively, from the Judgment and Order dated the 6th December, 1951, of the High Court of Judicature in Assam at Gauhati in its Revenue Appellate Jurisdiction (Deka J.) in Revenue Appeal No. 65 (M) of 1951.
C. K. Daphtary, Solicitor General for India (Nuruddin Ahmed, with him) for the appellant in Civil Appeal No. 176.
B. B. Tawakley (K. B. Asthana, with him) for the respondent in Civil Appeal No. 176.
R. K. Chaudhury (Jai Gopal Ghosh and R. N. Tikku, with him) for respondent No. 2.
in Civil Appeal No. 176 and appellant in Civil Appeal No. 176 A. 1953.
April 14.
The Judgment of the Court was delivered by BOSE J.
This is a curious case in which the State Government of Assam having granted the first respondent a lease later cancelled its grant and regranted it to another party and now contends that it is not bound by the laws and regulations which ordinarily govern such transactions.
Assam is blest with fisheries which are under the control of and belong to the State Government.
Periodically the fishing rights are ]eased out to licensees and the State derives considerable revenue from this source.
So valuable are these rights that as long ago as 1886 it was considered undesirable to leave such a lucrative source of revenue, to the unfettered 867 discretion and control of either the Provincial Government or a single individual however eminent.
Accordingly, legislation was enacted and Regulation I of 1886 (The Assam Land and Revenue Regulation, 1886) was passed into law.
A Register of Fisheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (later Provincial Government), to declare any collection of water to be a fishery.
Once a fishery was so declared no person could acquire fishing rights in it except as provided by rules drawn up under section 155.
These rules, with alterations made from time to time, were still operative at all dates relevant and material to this case.
Put shortly, the effect of these rules at the dates mentioned here, was to require the fishing rights to be sold periodically by public auction in accordance with a particular procedure which was prescribed.
These sales were called " Settlements.
" Among the conditions of sale were the following : (1)The officer conducting the sale does not bind himself to accept the highest bid or any bid.
(2)The purchaser shall immediately after the acceptance of his bid furnish as security etc.
(3)The annual sale of fisheries in a district should be reported to the Commissioner for sanction in Form No. 100.
The Form shows that each individual settlement had to be sanctioned.
But the rules in force at the dates relevant to this case permitted a departure in these words: " Rule 190 A.
No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government.
" There is also the following rule: " 191.
Fisheries should be settled to the best advantage but, subject to this condition, the agency of middlemen as lessees should be done away with as 868 far as possible.
To effect this the fishery area should be broken up into blocks of such size that the actual fishers may be able to take the lease, which should be given, for preference, to the riparian land occupants or to the actual fishermen.
The endeavour of the District Officer should be to do away with the middlemen by finding out who the sub lessees are and trying to come to terms with them.
" The Rules also made provision for an appeal to the Revenue Tribunal (the High Court acted as such) in the following words : "190.
All orders of a Deputy Commissioner or Sub Divisional Officer passed under these rules are appealable to the Revenue Tribunal.
" The first respondent held previous leases of the fishery with which we are concerned for a number of years.
The last of these was to expire on 31st March, 1951.
Shortly before its expiry there was agitation by way of petitions and memorials by some of the local fishermen asking in effect that rule 191 be given effect to though the applications do not actually mention the rule.
These applications, six in number, range in date from 27th October, 1950, to 13th March, 1951.
They were addressed to various officials ranging from the Chief Minister and the Revenue Minister to the Secretary to Government and the Parliamentary Secretary and the Deputy Commissioner.
Government therefore had all the facts fully before it.
In view of these applications Government decided to settle the fishery direct and wrote the following letter to the Deputy Commissioner on 1st February, 1951: Government desire to settle the above mentioned fishery direct under rule 190 A.
I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement.
" By that date Government had four of the six applications to which we have referred before it.
In addition, it had the recommendation of the Sub Deputy Collector 869 dated 4th January, 1951, in favour of these applications together with the Deputy Commissioner 's endorsement letter dated 5th January, 1951, confirming the facts set out in the Sub Deputy Collector 's endorsement and in the applications.
The first respondent also made ail application to the Parliamentary Secretary on 13th March, 1951, before any final decision was reached.
The Deputy Commissioner proceeded to auction the fishery on 24th February, 1951.
, and on 26th February, 1951, forwarded the bid lists to the Government with a recommendation in the first respondent 's favour (his was the highest bid) in the following terms : The present lessee is managing the fishery well and there is nothing against him." After this, and before the final sanction, Government received still another petition from some of the local fishermen asking for a settlement in their favour.
This was on 13th March, 1951.
Therefore, by that date Government had six petitions from the local fishermen before it and one by the first respondent as well as the various recommendations made by the District officials.
With all this material in its possession Government decided in favour of the first respondent and on 17th March, 1951, wrote to the Deputy Commissioner, with a copy to the Development Commissioner, as follows: " Government sanction settlement of the Chaiduar Brahmaputra and Kharoibeel fishery under rule 190 A with the existing lessee Shri Keshab Prosad Singh at an annual revenue of Rs. 17,700 for a term of three years with effect from the 1st April, 1951, on the usual terms and conditions.
" The Deputy Commissioner conveyed this sanction to the first respondent on 21st March, 1951, and called on him to make the necessary deposits.
The sanction is in the following terms: " You are hereby informed that Government have allowed settlement of Chaiduar Brahmaputra and Kharoibeel fishery with you at Rs. 17,700 per year 870 for 3 years with effect from 1st April, 1951.
You are therefore directed to deposit the 1 /4 purchase money amounting to Rs. 4,425 on 28th March, 1951, and the balance of Rs. 13,275 in cash on 31st March, 195 1, failing which the settlement granted is liable to be cancelled.
" According to all notions of contract current in civilised countries that would have constituted a binding engagement from which one of the parties to it could not resile at will, and had the first respondent tried to back out we have little doubt that the State Government of Assam would, and quite justifiably, have insisted on exacting its just dues.
But the State Government did not feel itself hampered by any such old fashioned notions regarding the sanctity of engagements.
On the very day on which it passed its orders in the first respondent 's favour, 17th March, 1951, it received two more petitions.
They emanated from the same sources as before and said nothing new; but they asked for a reconsideration of the orders just passed.
Had Government recalled its orders then and there, possibly no harm would have been done beyond exposing its vacillations to a limited official circle.
But it allowed five davs to pass and then the Revenue Secretary wired the Deputy Commissioner not to recall the orders of Government, but to "stay delivery of possession" pending what the Revenue Secretary was pleased to call "further orders of Government on the revision petitions".
But by then it was too late.
The acceptance of the bid had already been communicated to the first respondent and by all ordinary notions the contract was complete.
The State Government now says in effect, somewhat cynically, that it is not bound by the statutory rules and claims that that gives it the right to recall its previous orders and regrant the fishery to some other person or body more to its liking, or rather in whom it has discovered fresh virtueshidden from its view in its earlier anxious and mature deliberations.
Acting on the telegraphic instructions received by him, the Deputy Commissioner conveyed the orders to the first respondent on 22nd March, 1951, and said; 871 "The under mentioned document is forwarded to Srijut Keshab Prosad Singh for information and necessary action.
He is further informed that he is not to deposit the 1/4th purchase money and additional security. . till the decision of the revision petition mentioned in the telegram".
Three weeks elapsed and then on 13th April, 1951, the State Government solemnly "reviewed" its former order and said: "It is reported by the Deputy Commissioner that the Gamiri Kharai Chaiduar Fishermen Society, Ltd., is constituted by bona fide fishermen.
Accordingly, in view of the new circumstances brought forward by the above Society the review petition is allowed and the previous orders of Government dated the 17th March, 1951, is modified.
The Chaiduar Brahmaputra and Kharaibeel fishery is accordingly settled with the Camiri kharaiChaiduar Fishermen Society Ltd. " The manager of this Fishermen 's Society is one Maniram Das.
His name was put forward by 205 members who claimed to be bona fide Assamese fishermen in the petitions of 27th October, 1950, and 21st December, 1950, also by Manirani himself on behalf of this Society on 2nd January, 1951.
Their claims were endorsed by the Sub Deputy Collector on 4th January, 1951, and by the Deputy Commissioner on 5th January, 1951.
The same claims were again made by Manirani Das on behalf of the Society on 23rd January, 1951.
The " new circumstances " said to have been discovered on review was the following statement made by the Deputy Commissioner on 3rd April, 1951: " Gamiri Kharai Chaiduar Society is formed by bona fide fishermen" The previous statement of the Sub Deputy Collector made on 4th January, 1951, was: "The applicants are all Kaibarta people in the district of Darrang whose sole business is to deal with 872 fish. .
The applicants are Assamese people.
In view of this and in view of the fact that these people have been recommended by respectable persons, I suggest that Kharai Chaiduar fishery" (the one in question here) " may be settled with them to encourage them to compete with the, other fishermen coming from outside Assam.
" The Deputy Commissioner 's endorsement on this (the same Deputy Commissioner) dated 5th January, 1951, runs: " The petitioner (Maniram Das) is an actual fisherman as will appear from the report of the Sub Deputy Collector As observed by the Sub Deputy Collector. . it is a fact that the indigenous fishermen cannot compete with the upcountry people in open auction." To characterise the later statement of the Deputy Commissioner dated 3rd April, 1951, as disclosure of a new circumstance betrays a cynical disregard for accuracy on a par only with the Assam Government 's cynical disregard for its pledged word.
The Deputy Commissioner was informed of the Government 's revised decision on 13th April, 1951, and on 16th April, 1951, the fishery was settled with Maniram Das and, according to the first respondent, the settlement in his name was cancelled.
The first respondent 's reaction to this was to file an appeal to the High Court under rule 190 and at the same time to apply for a mandamus under article 226 of the Constitution.
The relief sought was worded as follows : " The humble appellant, therefore, prays that your Lordships would be pleased to set aside the settlement of the fishery with the respondent and restore the settlement of the same with the humble appellant.
" The High Court, not unsurprisingly on these facts.
granted the prayer.
It acted under rule 190 as an appellate tribunal and the only question for us to decide is whether it had jurisdiction to do so.
The 873 mandamus petition is not before us.
The appellant is the State of Assam.
There is an ancient presumption under section 114, illustration (h), of the Evidence Act, dating from at least 1872, that official acts have been regularly performed.
Strange as it may seem this applies to Governments as well as to lesser bodies and officials, and ancient though it is the rule is still in force.
True, the presumption will have to be applied with caution in this case but however difficult the task it is our duty to try and find a lawful origin for as many of the acts of the appellant 's Government as we can.
Now, as we have seen, prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Governments or officials and were placed under statutory regulation and control by sections 16 and 155 of the Assam Land.
and Revenue Regulation of 1886 and we have already referred to the elaborate set of rules which were drawn up in pursuance of that Regulation.
It follows that no fishery can be "settled" except in accordance with those Rules.
It was not disputed that, apart from rule 190 A which we are now called upon to construe, the Deputy Commissioner alone could effect a "settlement" and, as we have shown, he was bound.
to follow a prescribed procedure; also that his "settlement" was subject to the sanction of the Commissioner.
Rule 190 A permits a departure but we do not consider it necessary in this case to determine the exact extent of the departure permitted because the Deputy Commissioner was directed to put the fishery to auction and he did so.
The only departure from the rules was that instead of sending the result of the auction to the Commissioner for Settlement it was sent to the State Government direct.
In our opinion, that was a permissible departure but it was for all that a departure within the Rules.
In our judgment, the words " except with the previous sanction of the Provincial Government " are, 874 important.
We do not consider that this permits the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action.
Such a construction would make rule 190 A run counter to section 16 of the Regulation which requires these sales to be made in accordance with rules framed under section 155, and of course a rule making authority cannot override the statute.
Accordingly, the law requires the sale to be under and in accordance with the rules.
It follows that the departure contemplated by rule 190 A is also a departure within the four corners of the rules read as a whole and is a part of the rules.
It is true the departure need not conform to the " preceding instructions " contained in the earlier portion of the rules but the departure once sanctioned itself becomes part and parcel of the rules.
This is important because one of the statutory safeguards against arbitrary executive action is the appeal to the Revenue Tribunal, which in this case is the High Court.
We would be slow to bold that this safeguard can be circumvented by the simple expedient of lifting a sale out of the rules whenever Government finds that convenient.
It seems to us that if the intention was to authorise Government to lift the matter out of the rules altogether and to proceed in an executive capacity the word " sanction " would be out of place, for Government would hardly require its own previous sanction to something which it is itself authorised to do.
The sanction must therefore refer to something which some other person or body is authorised to do, and in the context we feel that it can only mean sanction to the Deputy Commissioner to proceed in a manner which is not quite in accordance with the instructions con tained in the rules.
The next question is, to what extent was a departure sanctioned? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner : 875 Government desire to settle the above mentioned fishery direct under rule 190 A.
I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement ".
The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by executive action.
The words " direct settlement " do lend themselves to that construction but that would be an act which, in our opinion, would not be warranted by the law and, as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed, we must, if we can, lean against a construction which would put that Government more in the wrong than we can help especially as it self purported to act under rule 190 A.
Now the only act which would be in consonance with rule 190 A and which would at the same time be in conformity with the letter of the first February would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner.
That, in our opinion, would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190 A.
In the cir cumstances, we are bound to construe this letter in that sense.
Now what did the Deputy Commissioner do ? So far as the actual auction was concerned, he followed the Rules.
He held a regular auction and recorded the bids in the usual way.
Up to that point he not only complied with the letter of the 1st February but also with the regular rules.
His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner.
This, according to us, was a permissible departure.
Upon receipt of the Deputy Commissioner 's recommendation Government sanctioned the settlement with the first respondent and the Deputy Commissioner communicated the sanction.
876 It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent.
our opinion, that is a mere playing with words.
The substance of the thing is there.
It would be illegal for Government to settle the fishery direct by executive action because of the statute.
It would be proper for it to sanction the settlement under rule 190 A in the way it did.
Government said it was acting under rule 190 A.
It said it had " sanctioned " the settlement.
Whose act was it sanctioning? Certainly not its own, for one cannot sanction one 's own act.
Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner.
Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound.
It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules.
That vested the first respondent with a good and legal title to the lease.
Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body.
As the Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party.
That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.
When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee.
If this auction had proceeded in the normal 877 way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction.
He would then have "settled" the fishery.
In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190 A in place of the Commissioner.
It was the Deputy Commissioner who made the initial choice.
It was his choice which was " sanctioned " and it was he who in reality and in fact: " settled " the fishery with the first respondent.
The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority.
This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another.
His discretion was to select a bidder and he did that without any outside pressure.
There after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character.
On the merits the High Court was abundantly right.
We accordingly upheld its order and dismiss the appeal with costs payable to the first respondent.
Civil Appeal No. 176 A of 1952.
BOSE J.
For the reasons given in our judgment in Civil Appeal No. 176 of 1952 pronounced to day, we dismiss the appeal without costs.
Appeals dismissed.
Agent for the appellant in Appeal No. 176: Naunit Lal.
Agent for respondent No. 1 in Appeal No. 176 and respondent in Appeal No. 176 A: A. D. Mathur.
Agent for respondent No. 2 in Appeal No. 176 and appellant in Appeal No. 176 A: K. R. Krishnaswamy.

summary/full:
The Government of Assam, desiring to settle a fishery direct under r. 190 A of the rules framed under the Assam Land and Revenue Regulation (1 of 1886), directed the Deputy Commis sioner concerned to put the fishery to auction and submit the bid list to Government with his recommendation for direct settlement.
The Deputy Commissioner accordingly auctioned the fishery and submitted the bid list with a recommendation in the first respondent 's favour.
Government sanctioned the settlement of the fishery with the first respondent and the latter was informed of the acceptance of the bid and directed to make the deposits.
Government received two more petitions on the same day for re consideration of the orders passed and three weeks later Government reviewed its order and settled the fishery with another person.
The first respondent preferred an appeal to the High Court under r. 190 which provided that all orders of a Deputy Commissioner passed under these rules were appealable to the High Court: Held, the words " except with the previous sanction of the Provincial Government " in r. 190 A do not permit the Provincial Government when it so wishes to lift the sales completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action.
Such a construction would make r. 190 A run counter to section 16 of the Regulation which requires these sales to be made under and in accordance with the Rules.
The departure contemplated by r. 190 A was a departure within the Rules.
As the Deputy Commissioner was the only 112 866 authority competent to settle these fisheries, subject to sanction, the act of cancellation and the act of resettlement were his acts, however much he may have acted under the direction and orders of the Government, and the High Court had jurisdiction to entertain the appeal under r. 190.
Judgment of the High Court of Assam affirmed.


judgement:
Civil Appeal No. 310 of 1960.
Appeal by special leave from the judgment and decree dated July 24, 1954, of the Board of Revenue (Uttar Pradesh) Allahabad, in Revision No. 20A of 1952/53.
section P. Sinha and J. P. Goyal, for the appellants, N. N. Keswani, for respondent No. 2. 1962.
December 7.
The Judgment of the Court was delivered by AYYANGAR, J.
This is an appeal by special leave against an order of the Board of Revenue, Uttar Pradesh which declined to order restitution under section 144, Civil Procedure Code in the following circumstances.
The father of the 1st respondent was the Zamindar who filed a suit in the court of SubDivisional Officer, Tehsil Iglas at Aligarh for the eviction of Ram Prasad father of the appellants from certain plots of land situated in village Kanchiraoli in The district of Aligarh.
The suit was decreed and in execution of that decree the Zamindar took possession.
Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944.
He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28 1948 an application was filed for recording this compromise.
The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute; in other words, the order for evicton 830 was nullified.
The compromise was recorded and a decree in terms thereof was passed.
Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention, but these attempts failed with the result, that it left the compromise decree passed by the Board in full force.
It might however, be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub Divisional officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case.
On the strength of the compromise decree Ram Prasad applied for restitution of possession under section 144 of the Civil Procedure Code.
This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal.
The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not, therefore, entitled to retain the possession which they obtained during the proceedings for ejectment.
From this order an ' appeal was taken by Data Ram and others to the additional commissioner who, for reasons which it is not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to Symbolical possession as against the Zamindar.
This order was taken to the Board in revision where, however, it was dismissed.
It is to challenge the correctness of this order that this appeal has been filed.
Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal The first objection was that this appeal was barred by res judicate.
To understand this objection it is 831 necessary to state a few more facts.
When the Board of Revenue upheld the order of the Additional Commissioner declining the prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under article 226 of the Constitution.
The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after 'elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U. P. Zamindari & Land Reforms Act, 1950 and could not therefore be evicted by the application of the rule of lis pendens.
No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave.
The result is that there is now a decision of the High Court which has become final and binding on the parties.
Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired, the appellant is not entitled to bypass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue.
We consider this preliminary objection wellfounded.
Learned Counsel for the respondent relied in supportof his submission on the decision of this Court in Daryao vs The State of U. P. (1).
The question before the Court was whether, when the High Court dismissed a writ petition under article 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened, (1) ; 832 a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party was permissible.
This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings.
If thus the rule of res judicata were a bar even to a petition under article 32 which is a Constitutionally guaranteed right, it looks to us that it would be afortiori so as regards an appeal under article 136 where the right to relief is discretionary.
Learned Counsel for the appellant invited our attention to the decision of this Court in Chandi Prasad Chokhani vs State of Bihar (1) as lying down a rule not quite so inflexible as the decision in Daryao 's case ' would suggest, that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court, this Court was competent to waive this rule and here the appeal notwithstanding that it meant that the decision of the High Court was bypassed.
No doubt, there are a few observations of section K. Das, J., who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned judges upheld the preliminary objection and dismissed the appeal, these observations are only by way of obiter and cannot outweigh the expressdecision on the point in Daryao 's case.
We might, however, point out that in Indian Aluminium Co.Ltd.
vs Commissioner of Income tax, West Bengal (2) in which also the judgment was delivered by section K. Das,J., the reasoning of the learned judge who upheld a similar preliminary objection is more in line with the decision in Daryao 's(3) case though the latter judgment which was delivered on the same day as in the Indian Aluminium Co. 's case (2) is not naturally referred to.
The learned judge observed : (1) ; (3) [1962) I S.C.R, 574. 833 "The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above (no appeal was preferred against the order of the High Court refusing to make a reference under section 66(2) of the Income Tax Act) special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under article 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under section 66 of the Act. . . .
We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under article 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court." This preliminary objection therefore has to be upheld.
The other preliminary objection raised was this.
The application for special leave filed by the appellant was out of ' time and the delay in filing it was condoned by this Court without notice to the respondent.
Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked.
In view, however, of our decision on the first objection raised we do not consider it necessary to deal with this.
The result is that the appeal failes and is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The father of respondent No. 1, who was the Zamindar, filed a suit for the eviction of Ramprasad, the father of appell ants, from certain plots of land.
The suit was decreed and the Zamindar took possession of the land.
Ramprasad filed an appeal before the Additional Commissioner but the same was dismissed .
He preferred a second appeal before the Board of Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in dispute and the order of eviction was; thus nullified.
He applied for restitution of possession under section 144 of the Code of Civil Procedure.
The application was resisted by Dataram and others who had been inducted as tenants on these plots of land during the pendency of the appeals.
The trial court allowed the application but its order was reversed by the Additional Commissioner who held that the newly inducted tenants could not be dispossessed.
Its order was affirmed by the Board of Revenue in revision.
Thereafter fie filed a petition under article 226 of the Constitution in the High Court challenging the decision of the Board of Revenue, but that petition was dismissed on merits.
No appeal was attempted to be filed against the order of the High Court either by applying for a certificate or moving this Court for special leave under article 136.
The appellants have instead come to this Court in appeal by special leave against the order of the Board of Revenue.
A preliminary objection was raised on behalf of of the respondent that the appeal was not maintainable as it was barred by res judicata.
Held, that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings. 829 Daryao vs State of U. P., [19621 1 section C. R. 574 and Indian Aluminium Co. Ltd. V. The Commissioner of Income tax, West Bengal, (1961) 43 , relied on.
Chandi Prasad Chokhani vs State of Bihar, [1962] 2 section C. R. 276, explained.


judgement:
Appeal No. 486 of 1963.
Appeal from the judgment and order dated September 27, 1962, of the Calcutta High Court in Appeal from Original Decree No. 424 of 1962.
S.Chaudhuri, R. C. Deb and section section Shukla, for the appellant.
Hari ' Prosonna Mukherjee, K. G. Hazra Chaudhari and D. N. Mukherjee, for the respondents Nos. 1 and 2.
August 14, 1963.
This is an appeal on a certificate granted by the High Court of Calcutta under article 133(1)(c) of the Constitution.
No preliminary objection having been taken as to the competency of the certificate, we have heard the appeal on merits.
The short facts giving rise to the appeal are these The appellant before us is Gurugobinda Basu who is a chartered accountant and a partner of the firm.
of auditors carrying on business under the name and style of G. Basu and Company.
This firm acted as the auditor of certain 313 companies and corporations, such as the Life Insurance Corporation of India, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., on payment of certain remuneration.
The appellant was also a Director of the West Bengal Fi nancial Corporation having been appointed or nominated as such by the State Government of West Bengal.
The appointment carried with it the right to receive fees or remuneration as director of the said corporation.
In February March, 1962, the appellant was elected to the House of the People from Constituency No. 34 (Burdwan Parliamentary Constituency) which is a single member constituency.
The election was held in February, 1962.
There were two candidates, namely, the appellant and respondent No. 3 to this appeal.
The appellant was declared elected on March 1, 1962, he having secured 1,55,485 votes as against his rival who secured 1,23,015 votes.
This election was challenged by two voters of the said constituency by means of an election petition dated April 10, 1962.
The challenge was founded on two grounds : (1) that the appellant was, at the relevant time, the holder of offices of profit both under the Government of India and the Government of West Bengal and this disqualified him from standing for election under article 102 (1)(a) of the Constitution; and (2) that he was guilty of certain corrupt practices which vitiated his election.
The second ground was abandoned at the trial, and we are no longer concerned with it.
The election Tribunal held that the appellant was a holder of offices of profit both under the Government of India and the Government of West Bengal and was therefore disqualified from standing for election under article 102(1)(a) of the Constitution.
The Election Tribunal accordingly allowed the election petition and declared that the election of the appellant to the House of the People was void.
There was an appeal to the High Court under section 116 A of the Representation of the People Act, 1951.
The High Court dismissed the appeal, but granted a certificate of fitness under article 133(1) (c) of the Constitution.
The only question before us is whether the appellant was disqualified from being chosen as, and for being, a member of the House of the People under article 102(1)(A) of the Constitution.
The answer to the question depends 21 2 S C India/6 314 on whether the appellant held any offices of profit under the Government of India or the Government of any State other than such offices as had been declared by Parliament by law not to disqualify their holder.
It has not been seriously disputed before us that the office of auditor which the appellant held as partner of the firm of G. Basu and Company was an office of profit.
It has not been contended by the appellant before us that the office of profit which he held had been declared by Parliament by law not to disqualify the holder.
Therefore the arguments before us have proceeded entirely on the question as to the true scope and meaning of the expression "under the Government of India or the Government of any State" occurring in cl.
(a) of article 102(1) of the Constitution.
The contention on behalf of the appellant has been that on a true construction of the aforesaid expression, the appellant cannot be said to hold an office of profit under the Government of India or the Government of West Bengal.
On behalf of the respondents the contention is that the office of auditor which the appellant holds is an office of profit under the Government of India in respect of the Life Insurance Corporation of India, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., and in respect of the West Bengal Financial Corporation of which the appellant is a Director appointed by the Government of West Bengal, he holds an office of profit under the Government of West Bengal.
These are the respective contentions which fall for consideration in the present appeal.
It is necessary to state here that if in respect of any of the four companies or corporations it be held that the appellant holds an office of profit under the Government, be it under the Government of India or the Government of West Bengal, then the appeal must be dismissed.
It would be unnecessary then to consider whether the office of profit which the appellant holds in respect of the other companies is an office of profit under the Government or not.
We would therefore take up first the two companies, namely, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., which are 100% Government companies and consider the respective contentions of the parties before us in respect of the office of auditor which the appellant holds in these two companies.
If we hold that in 315 respect of any of these two companies the appellant holds an office of profit under the Government of India, then it would be unnecessary to consider the position of the appellant in any of the other companies.
It is not disputed that the Hindustan Steel Ltd., and the Durgapur Projects Ltd. are Government companies within the meaning of section 2(18) read with section 617 of tile Indian .
It has been stated before us that 100% of the shares of the Durgapur Projects Ltd. are held by the Government of West Bengal and 100% of the shares of the Hindustan Steel Ltd. are held by the Union Government.
We may now read section 619 of the Indian . "(1) In the case of a Government company, the following provisions shall apply, notwithstanding any thing contained in sections 224 to 233.
(2)The auditor of a Government company shall be appointed or re appointed by the Central Government ,on the advice of the Comptroller and Auditor General of India.
(3)The Comptroller and Auditor General of In dia shall have power (a)to direct the manner in which the company 's accounts shall be audited by the auditor appointed in pursuance of sub section (2) and to give such auditor instructions in regard to any matters relating to the performance of his functions as such : (b) to conduct a supplementary or test audit of the company 's accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons so authorised, on such matters, by such person or persons, and in such form, as the Comptroller and Auditor General may, by general or special order, direct.
(4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller and Auditor General of India who shall have the right to comment upon, or supplement, the audit report in such manner ,as he may think fit.
(5) Any such comments upon, or supplement 316 the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report.
" It is clear from the aforesaid provisions that not with standing section 224 of the Act which empowers every company to appoint an auditor or auditors at each annual general meetings, the appointment of an auditor of a Government company rests solely with the Central Government and in making such appointment the Central Government takes the advice of the Comptroller and Auditor General of India.
Under section 224(7) of the Act an auditor appointed under section 224 may be removed from office before the expiry of his term only by the company in general meeting, after obtaining the previous approval of the Central Government in that behalf.
The remuneration of the auditors of a company is to be fixed in accordance with the provisions of sub section
(8) of section 224.
It is clear however that sub section
(7) of section 224 does not apply to a Government company because the auditor of a Government company is not appointed under section 224 of the Act, but is appointed under sub section
(2) of section 619 of the Act.
It is clear therefore that the appointment of an auditor in a Government company rests solely with the Central Government and so also his removal from office.
Under sub section
(3) of section 619 the Comptroller and Auditor General of India exercises control over the auditor of a Government company in respect of various matters including the manner in which the company 's accounts shall be audited.
The Auditor General has also the right to give such auditor instructions in regard to any matter relating to the performance of his functions as such.
The Auditor General may conduct a supplementary or test audit of the company 's accounts.
by such person or persons as he may authorise in this behalf.
In other words, the Comptroller and Auditor General of India exercises full control over the auditors of a Government company.
The powers and duties of auditors in respect of companies other than Government companies are laid down in section 227 of the Act but by virtue of sub section
(1) of section 619 of the Act, the provisions in section 227 of the Act do not apply to a Government company because a Government company is subject to the provisions ,of section 619 of the Act.
Under section 619 A of the Act, where the 317 Central Government is a member of a Government company, an annual report of the working and affairs of the company has to be prepared and laid before both Houses of Parliament with a copy of the audit report and the comments made by the Comptroller and Auditor General.
Under section 620 of the Act the Central Government .may by notification direct that any of the provisions of the Act, other than sections 618, 619 and 639, shall not apply.
to any Government company.
The net result of the aforesaid provisions is that so far as the Durgapur Projects Ltd. and the Hindustan Steel Ltd. are concerned, the appellant was appointed an auditor by the Central Government; he is removable by the Central Gov ernment and the Comptroller and Auditor General of India exercises full control over him.
His remuneration is fixed by the Central Government under sub section
(8) of section 224 of the Act though it is paid by the company.
In these circumstances the question is, does the appellant hold an office of profit under the Central Government? We may now read article 102(1) of the Constitution.
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder (b) (c) (d) We have stated earlier that the sole question before us is whether the office of profit which the appellant undoubtedly holds as auditor of the Durgapur Projects Ltd., and the Hindustan Steel Ltd. is or is not under the Government of India.
According to Mr. Chaudhuri who has argued the appeal on behalf of the appellant, the expression "under the Government, occurring in article 102(1)(a) implies sub ordination to Government.
His argument is that ordinarily there are five tests of such subordination, namely, (1) whe ther Government make , the appointment to the office; (2) whether Government has the right to remove or dis 318 miss the holder of office; (3) whether Government pays the remuneration; (4) what are the functions which the holder of the office performs and does he perform them for Government; and (5) does Government exercise any control over the performance of those functions.
His argument further is that the tests must all co exist and each must show subordination to Government so that the fulfillment of only some of the tests is not enough to bring the holder of the office under the Government.
According to him all the tests must be fulfilled before it can be said that the holder of the office is under the Government.
His contention is that the Election Tribunal and the High Court were in error in holding that the appellant was a holder of office under the Government, because they misconstrued the scope and effect of the expression "under the Government" in article 102(1)(a) of the Constitution.
He has contended that tests (3), (4) and (5) adverted to above are not fulfilled in the present case.
The appellant gets his remuneration from the company though fixed by Government; he performs functions for the company and he is controlled by the Comptroller and Auditor General who is different from the Government.
On behalf of the respondents it is argued that the tests are not cumulative in the sense contended for by the appellant, and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case, and whether stress will be laid on one factor or the other will depend on the circumstances of each particular case.
According to the respondents, the tests of appointment and dismissal are important tests in the present case, and in the matter of a company which is a 100% Government company, the payment of remuneration fixed by Government, the performance of the functions for the company and the exercise of control by the Comptroller and Auditor General, looked at from the point of view of substance and taken in conjunction with the power of appointment and dismissal, really bring the holder of the office under the Government which appoints him.
One point may be cleared up at this stage.
On behalf of the respondents no question has been raised that the Durgapur Projects, Limited, or the Hindustan Steel, Limi 319 ted, is a department of Government or an emanation 'of Governments question Which was considered at some length in Narayanaswamy vs Krishnamurthi(1).
Learned counsel for the respondents has been content to argue before us on the basis that the two companies having been incorporated under the Indian are separate legal entities distinct from Government.
Even on that footing he has contended that in view of the provisions of section 619 and other provisions of the Indian , an auditor appointed by the Central Government and liable to be removed from office by the same Government, is a holder of an office of profit under the Government in respect of a company which is really a hundred per cent Government company.
We think that this contention is correct.
We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them.
, The Constitution itself makes a distinction between 'the holder of an office of profit under the Government ' and 'the holder of a post or service under the Government '; see articles 309 and 314.
The Constitution has also made a distinction between 'the holder of an office of profit under the Government ' and 'the holder of an office of profit under a local or other authority subject to the control of Government '; see article 58(2) and 66(4).
In Maulana Abdul Shakur vs Rikhab Chand and another(1) the appellant was the manager of a school run.
by a committee of management formed under,the provisions of the Durgah Khwaja, Saheb Act, 1955.
He was appointed by the administrator of the Durgah and was paid Rs. 100 per month.
The question arose whether he was disqualified to be chosen as a member of Parliament in view of article 102(1)(a) of the Constitution.
It was contended for the respondent in that case that under sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of, appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and super (1) I.L.R. [1958] Mad 513.
(2) [1958] S.C.R. 387 320 vision of the Government and that therefore he was holding an office of profit under the Government of India.
This contention was repelled and this court pointed out the distinction between 'the holder of an office of profit under the Government ' and 'the holder of an office of profit under some other authority subject to the control of Government '.
Mr. Chaudhuri has contended before us that the decision is in his favour.
He has argued that the appellant in the present case holds an office of profit under the Durgapur Projects Ltd. and the Hindustan Steel Ltd. which are incorporated under the Indian ; the fact that the Comptroller and Auditor General or even the Government of India exercises some control does not make the appellant any the less a holder of office under the two companies.
We do not think that this line of argument is correct.
It has to be noted that in Maulana Abdul Shakur 's case(2) the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government.
The appointment was made by the administrator of a committee and he was liable to be dismissed by the same body.
In these circumstances this Court observed: "No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting, within the four corners of the Act.
Merely because the Committee or the members of the Committee are removable by the Government of India or the Committee can make bye laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India.
The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India.
The power of the Government to appoint a person to an office of profit or to continue him in that office 'or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though pay [1958] S.C.R. 387.
321 ment from a source other than Government revenue is not always a decisive factor.
But the appointment of the appellant does not come within this test.
" It is clear from the aforesaid observations that in Maulana Abdul Shakur 's case(1) the factors which were held to be ,,decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that ,office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor.
In the case before us the appointment of the appellant :as also his continuance in office rests solely with the Government of India in respect of the two companies.
His remuneration is also fixed by Government.
We assume for the purpose of this appeal, that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government com panies within the meaning of the Indian and 1000% of the shares are held by the Government.
We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom.
Under article 148 of the Constitution the Comptroller and Auditor General of India is appointed by the President and he can be removed from office in like manner and on the like grounds as a judge ,of the Supreme Court.
The salary and other conditions of service of the Comptroller and Auditor General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution.
Under cl.
(4) of article 148 the Comptroller and Auditor General is not eligible for further office either under the Government of India or under the Government of any 'State after he has ceased to hold his office.
(5) of the said Article lays down that subject to the provisions of the 'Constitution and of any law made by Parliament, the administrative powers of the Comptroller and Auditor (1)[1958] S.C.R. 387.
322 General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.
Under article 149 of the Constitution the Comptroller and Auditor General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor General of India immediately before the commencement of the Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.
The reports of the Comptroller and Auditor General of India relating to the accounts of the Union have to be submitted to the President and the reports of the Comptroller and Auditor General relating to the accounts of 2 State have to be submitted to the Governor.
From the aforesaid provisions it appears to us that the Comptroller and Auditor General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers arc such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament.
Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, lie is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.
In Ramappa vs Sangappa(1) the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under article 191 of the ' Constitution, which is the counterpart of article 102, in the matter (1) [1959]1 S.C.R. 1167.
323 of membership of the State Legislature.
It was observed therein: "The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements.
The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it.
The fact that the Government cannot refuse to make the appointment does not alter the situation.
" There again the decisive test was held to be the test of appointment.
In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is, absent, the test of a person holding an office under the Government, Central or State, is not satisfied.
The cases we have referred to specifically point out that the circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question.
As we have said earlier whether stress will be laid on one factor or the other will depend on the facts of each case.
However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.
For the reasons given above we have come to the conclusion that the Election Tribunal and the High Court were right in coming to the ' conclusion that the appellant as an auditor 'of the two Government companies ' held an 324 office of profit under the Government of India within the meaning of article 102(1)(a) of the Constitution.
As such he was disqualified for being chosen as, and for being, a member of either House of Parliament.
It is unnecessary to consider the further question whether he was a holder of an office of profit either under the Government of India or the Government of West Bengal by reason of being an auditor for the Life Insurance Corporation of India or a Director of the West Bengal Financial Corporation.
The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant was a chartered accountant and a partner of a firm of auditors.
This firm acted as auditors of two companies, among others, registered under the Indian , the entirety of the shares of one of which are owned by the Union Government and the entirety of the shares of the other by the West Bengal Government.
The appellant was declared elected to the Lok Sabha.
His election was challenged by two voters of the constituency by means of an election petition.
The main ground raised was that the appellant was at the relevant period the holder of an office of profit under the Government of India as well as the State Government and hence he was disqualified from standing for election under article 102(1)(a) of the Constitution.
The Election Tribunal accepted this contention and declared the election of the appellant void.
The appellant filed an appeal before the High Court in which he did not succeed.
The present appeal was by virtue of a certificate granted by the High Court under article 133(1)(c) of the Constitution.
It was contended before this Court that on a true construction of the expression "under the Government of India or the Government of any State" occurring in cl.
(a) of article 102 (I.) of the Constitution the appellant could not be said to hold an office of profit under the Government of India or the Government of West Bengal.
It was argued that the various tests, namely, who has the power to appoint, who has the right to remove, who pays the remuneration, what are the functions and who exercises the control should all co exist and each must show subordination to the Government.
The fulfillment of some of the tests alone, would not be sufficient to determine that a person holds an office of profit under the Government.
It was contented on behalf of the respondent that the tests were not cumulative and that the court should look to the substance rather than to the form.
Held : (i)For holding an office of profit, under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them.
312 (ii)The examination of the various provisions of the Com panies Act, 1956 (sections 224, 227, 618 and 619) showed that so far as the two companies in question were concerned the appellant was appointed as an auditor by the Central Government, was removable by the Central Government, that the Comptroller and the Auditor General of India exercised full control over him and that his remuneration was fixed by the Central Government under sub section
(8) of section 224 of the though it was paid by the companies concerned.
(iii)Where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed and the power to determine the question of remuneration are all present in a given case then the officer in question holds the office under the authority so empowered.
It is not necessary that all these must co exist nor is the fact that the source from which the remuneration is paid is not from public revenue decisive.
(iv)The appellant held an office of profit under the Government of India within the meaning of article 102(1)(a) of the Constitution of India and as such he was disqualified for being chosen as a member of Parliament.
Maulana Abdul Shakur vs Rikhab Chand, [1958] S.C.R. 387, distinguished.
Ramappa vs Sangappa, ; , referred to.


judgement:
iminal Appeal No. 3 of 1962.
Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960.
D. Goburdhan, for the appellant.
S.P. Ferma, for the respondent.
July 31, 1963.
The judgment of the Court was delivered by AYYANGAR J.
This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran.
The appellant was charged with an offence under section 304A of the Indian Penal Code for causing the death of one Mst.
Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine.
The deceased Madilen was an inmate of a house near that of the accused.
The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence July 16, 1959, with the result that her latrine had become exposed to public view.
Consequently the deceased among others, started using the latrine of the accused.
The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there.
The oral warnings, however, proved inef 201 fective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders.
Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them.
The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after.
On these facts the Courts below held that the accused was guilty of an offence under section 304A of the Indian Penal Code which en acts : "304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
" The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away.
But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de tected merely by the place being properly lit.
The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a 'rash act ' done in reckless disregard of the serious consequences to people coming in contact with it.
It might be mentioned that the accused was also cliar 14 2 section C. India/64 202 ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge.
The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right.
The learned judges repelled this defence and in our opinion, quite correctly.
The right of private defence of property which is set out in section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of section 99 of the Code.
It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of section 99, nor of course of section 103 of the Code.
As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length.
Learned Counsel, however, tried to adopt a different approach.
The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime.
There is no substance in this line of argument.
In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act.
But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong.
A trespasser is not an outlaw, a Caput lupinem.
The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in jury by direct violence and the same principle would 203 govern the infliction of injury by indirectly doing some thing on the land the effect of which he must know was likely to cause serious injury to the trespasser.
Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover.
The laying of such a trap, and there is little difference between the spring gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth "an arrangement to shoot a man without personally firing a shot".
It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers.
As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property.
The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: "The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises.
For example, he must not set man traps or spring guns.
This is no more than ordinary civilised behaviour." judged in the light of these tests, it is clear that the point urged is wholly without merit.
The appeal fails and is dismissed.
Appeal dismissed.

summary/full:
The appellant was charged under section 304 A of Indian Penal Code for causing the death of a woman.
The deceased was residing near the house of the accused.
The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused.
The accused protested against their coming there.
The oral warnings however, proved ineffective and so he fixed up a naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected.
On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after.
The trial and the appellate court convicted and sentenced the appellant under section 304A of the Indian Penal Code.
Hence this appeal.
200 Held : (1) The plea of the right of private defence of property was not sustainable for the reason that the type of injury caused by the trap laid by the accused could not be brought within the purview of section 99 or 103 of the Indian Penal Code.
(2) A trespasser was not an outlaw, a caput lupinem.
The mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.