judgement:
iminal Appeal No. 75 of 1967.
Appeal by special leave from the judgment and order dated April 8, 1966 of the Andhra Pradesh High Court in Criminal Appeal No. 636 of 1963.
Nur ud din Ahmed, A. V. Rangam, A. Vedavalli and D. Gopala Rao, for the appellants.
P. Ram Reddy and A. V. V. Nair, for the respondents.
425 The Judgment of the Court was delivered by Dua, J.
In this appeal by special leave directed against.
the order of the Andhra Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial.
The appellants who are ten in number were tried on as many is 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges.
On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal.
Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence.
The case was in consequence laid before Basi Reddy, J., as provided by section 429, Cr.
That learned Judge accepted the prosecution case and convicted the appellants on some of the charges.
He expressed his final conclusion thus : "I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed: On charge No. 21 would convict accused 1, 3 and 5 to 9 under section 147, I.P.C. and on charge No. 3 accussed 2, 4 and 10 and sentence each of accused 1, 2,3, 4 and 5 to pay a fine of Rs. 5001/ in default each to suffer six months ' rigorous imprisonment.
I would sentence each of accused 6 to 9 (who are farm servants) to pay a fine of Rs. 100/ in default to suffer two months ' rigorous imprisonment.
I would sentence accused 10 to suffer rigorous imprisonment for two years.
On each of charges nos.
4, 5 and 6 which pertain to the three counts of murder, I would convict and sentence accused 10 to suffer imprisonment for life under section 302, I.P.C. 3.
On charge No. II, I would convict and sentence accused No. 10 to suffer two years ' rigorous imprisonment under section 326, I.P.C. for having caused grievous hurt to P.W. 6 by shooting at him with the gun.
On charge No. 221 would convict accused 10 under section 19(a) of the Indian Arms Act and sentence him to suffer one year 's rigorous imprisonment.
I would direct all the sentences of imprisonment passed on accused 10 to run concurrently.
I would uphold the order of acquittal on other charges.
426 The net result will be that accused 10 will have to undergo imprisonment for life; accused 1 to 5 will each have to pay a fine of Rs. 500; and accused 6 to 9 will each have to pay a fine of Rs. 100/ ".
The final.
order of the High Court on appeal followed the opinion expressed by Basi Reddy, J. The charges on which the appellants were convicted are there ". . . .
Secondly : that you accused nos.
1, 3 and 5 to 9 along with accused nos.
2, 4 and 10 at about 10 a.m. on 10 9 61 at the same place and in the course of the same transaction as set out in charge No. 1 above, formed your the common object of such assembly viz : beating and the occupiers of Gabbilalakunta, committed an offence of assembly, viz. : beating and killing the members of the lakunta, committed an offence of rioting and that at that weapons to wit, 'spears ' and the 10th accused was armed and within my cognizance; Thirdly : that you accused nos.
2, 4 and 10 along with accused nos.
1, 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge No. 2 above, were members of an unlawful assembly and did in prosecution of the common object of such assembly, viz :beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, committed an offence of rioting and that at that time, the accused nos.
2 and 4 were armed with deadly weapons to wit, 'spears ' and the 10th accused was armed with a D.B.B1 Gun and thereby committed an offence punishable under section 148 of the Indian Penal Code and within my cognizance; Fourthly : that you accused No. JO at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with a D. B. B1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance; Fifthly : that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Bodapati China Anjaiah s/o Danaiah of Mustabada by shooting 427 him with a D.B.B I gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance; Sixthly : that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, did commit murder by intentionally or knowingly causing the death of Boddapati Lakshmaiah s/o Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting him with a D.B.B1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance; Eleventhly : that you accused No. 10 at the same time and place and in the course of the same transaction as set out in charge No. 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam, son of Venkaiah of Davajigudem by means of a D.B.B1 gun an instrument for shooting and thereby committed an offence punishable under section 326 of the Indian Penal Code and within my cognizance and that the said act having been done in pursuance of the common object of the unlawful assembly consisting of you all the accused herein, all of you are guilty of the offence under section 326 of the Indian Penal Code read with section 149, Indian Penal Code and within my cognizance, or alternatively under section 326 read with section 34, Indian Penal Code and within my cognizance; Twentysecondly : that you accused No. 10 at about the same time and place and in the course of the same transaction as set out in charge No. 2 above, were armed with a D.B.B1 gun without licence under the Indian Arms Act and thereby committed an offence punishable under section 19(e) of the Indian Arms Act and within my cognizance.
" In this Court, as already observed, the appellants ' learned Advocate confined his submission only to the question of right of private defence.
According to the prosecution case, there is a low lying area covering.
about 11 acres known as Gabbilalakunta (hereafter to be referred as the Kunta) about one mile away from Surampalli village but within its limits.
This Kunta serving as a tank is fed by rain water.
The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram.
Under 428 the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram was taken over by the Government in 1950.
As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances.
This Kunta thus belonged to the Government.
Some poor landless persons like P.Ws 13 and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part of this Kunta and started raising wet and dry crops.
This started in the year 1953.
Their occupation being unauthorised the Revenue Authorities collected penalty list from the occupants.
Accuse4d nos.
1 to 4, Gottipulla Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla Seshaiah and Gottipulla Subba Rao, who are the ,former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. 'There is a big tank called Erracharuvu located about three or four furlongs to the north of the Kunta.
There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused nos.
1 to 4.
According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta.
According to the accused persons, however their fields should receive water from the Kunta through sluices in its southern bund.
In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of 34 acres.
Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted a suit for injunction restraining accused nos.
1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957.
Accused nos.
1 to 4 also filed an application seeking to in junct the occupiers from opening the sluices (out lets) or making breaches in the bund of the Kunta during the pendency of the suit.
On this application also the court, by an order dated August 29, 1957, granted a temporary injunction in the following terms "Pending disposal of this petition, the respondents are restrained fro in opening the sluices or outlets or cutting any breaches to the bund of the tank situated in section No. 44 if there is any bund. " On February 3, 1960 the Court confirmed both the orders of injunction mentioned above.
The land in the Kunta was not cultivated in the years 1958 to 1960 because, of failure of rains.
In June, 1961 cultivation was resumed by P.W. 13 and P.W. 14, along with four other persons, raising paddy crop in a part of the Kunta.
Another part of the Kunta was prepared for raising 429 jonna crop.
The suit mentioned above was still pending when on September 4, 1961 it was adjourned to some other date.
It rained heavily that night and the,, rain water collected in the Kunta.
On the following morning when P.W. 13 and P.W. 14, along with some other occupiers passed by the side of the Kunta they saw a new bund raised on its western side so as to prevent the rain water collected therein from flowing westwards.
This resulted in submerging the crop grown on the eastern portion of the Kunta.
The new bund was about 3 high, 2 1/2 wide and 25 yards in length.
There being no one present at the bund P.Ws 13 and 14 and their companions made a breach therein to let the water flow westwards.
In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position.
There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping a watch.
The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did not listen to their entreaties and threatened to beat them if they dared to interfere with the bund.
The occupiers thereupon went back to their village.
On the following day, September 6, 1961, P.W. 12, Yelamanchili Malikharjuna Rao, a medical practitioner at Surampalli and a leading member of the Communist Party was approached by the occupiers to assist them in representing to the authorities against the high handed action of the Mokhasadars.
A report was prepared by P.W. 12 which was addressed to the Sub Inspector of Police.
The Sub Inspector promised to send his constables to the spot and on this assurance the occupiers went back to their village.
On September 7, 1961 under the direction of the Police Sub Inspector two police constables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties.
The Kunta was full of water and the paddy crop was submerged.
Six of the occupiers were also present at the spot.
The police Constables informed the persons present keeping a watch on the bund, which included accused No. 1 Gottipulla Venkatasiva Subbarayanam, accused No. 2 Gottipulla Bapaiah and accused No. 10, Charugulla Vijayaramarao, that the Sub Inspector had directed the western bund to be removed so that water may flow westwards.
Accused nos.
1, 2 and 10 asked for Government orders to that effect and declined to allow the bund to be removed in the absence of such an order.
The police constables asked the parties present to meet the Sub Inspector on the following day.
Neither party, however, went to the police station as required.
The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was not his business and that it was for the Revenue Divisional Officer to look into the matter.
On September 9, 1961 the Sub Inspector sent a head constable along with 430 the constable who had gone there on September 7, to enquire into the complaint made to the police earlier.
According to the report prepared by the head constable accused No. 10 was firm and emphatic that the bund could not be removed in the absence of a Government order to that effect.
Bonds were, therefore, secured from accused nos.
2 and 3 and also from the occupiers for appearance before the Sub Inspector on the following morning.
It appears that these steps by the police produced no tangible result.
The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that object they approached some ryots of the surrounding villages to intervene on their behalf and to persuade the Mokhasadars to remove the bund.
After the police party had left Surampalli on the evening of September 9, P.Ws. 13 and 14 and some other occupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight.
The occupiers were assured of their support on the following morning.
On the morning of September 10, P.W. II, Katragadda Pedavenkatarayudu accompanied by P.W. 6, Koli Nagabhushanam, and Anne Rama Rao (deceased No. 1) went to Mustabada on their way to Surampalli.
At Mustabada they contacted Chinna Anjayya (deceased No. 2) and P.W. 15, Pendyala Venkateswara Rao, and from there they all proceeded to Surampalli.
At the Panchayat Board Office at Surampalli they collected P.W. 1, Madhukuluri Satyanarayana, P.W. 4, Kolampatta Venkata Sub bayyachari, P.W. 5, Jasti Ramarao, P.W. 7, Garimella Subbarao, P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala Veeraiah and deceased No. 3, B. Lakshmayya and also the six occupiers of the Kunta and two or three other persons.
P.W. 12, Y. Mallikarjuna Rao also arrived there.
A message was sent through P.W. 13 to bring accused nos.
1 to 4 to the Panchayat Board office but they were reported to be at the Kunta.
Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at about 10 a.m. on September 10.
Accused nos.
1 to 9 were found near the huts whereas accused No. 10 with a gun was standing about 25 yards to the southeast of the huts.
Accused nos.
2 and 4 had spears whereas accused nos.
3 and 5 to 9 had sticks with them.
P.Ws. 1, 4, deceased No. 1, P.W. II and others are stated to have requested accused nos.
1 to 4 to remove the bund and save the growing crop belonging to the poor men.
The accused declined to do so.
Thereupon the six occupiers went towards the bund about 25 yards to the north of the huts and started themselves removing a portion.
Accused nos.
1 to 9 thereupon rushed at them to beat them.
At that stage P.W. 5, Jasti Ramarao, P.W. 7, Garimella Subba Rao and some others who had come to mediate intervened but they were beaten by the accused.
The, prosecution witnesses in turn snatched the sticks from some of the accused persons and retaliated causing injuries to some of them.
431 At this point of time accused No. 10 who was standing near the huts shouted that the party of the occupiers would not go back unless shot at and asked his companions to come back.
Accused nos.
1 to 9 started retreating towards the huts.
Deceased No. 1 and P.W. I who was about 10 yards southeast of the huts at that time went towards accused No. 10 challenging him to shoot if he dared and saying that they were prepared to be shot for a just cause.
Accused No. 10 then stepped forward and fired at deceased No. 1 from a distance of about 10 yards.
Crying out "Abba" deceased No. 1 fell down and died on the spot.
A pellet grazed the nose of P.W. I who was a couple of yards behind deceased No. 1 and he too fell down.
According to the prosecution version accused No. 2 hit P.W. I at the back as a result of which P.W. I also fell down unconscious.
, Accused No. 10 is stated to have fired another shot towards the west as a result of which P.W. 6 was injured.
Accused No. 10 then re loaded his gun and fired a shot towards the west and this hit deceased No. 2 who also fell down dead.
The fourth shot was fired by accused No. 10 in the northwestern direction which hit deceased No. 3 who was about 25 yards away from the huts and he too fell down dead.
P.Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the course of this firing.
This, broadly speaking, is the prosecution case.
According to the defence version sought to be supported by ,four defence witnesses the gun used during the occurrence was brought by accused No. 1 who holds the necessary licence for this fire arm and it was he who used it in exercise of the right of private defence after accused nos.
2 to 4 had received injuries at the hand of about 200 or 300 communist & who had come to the place of occurrence from the house of P.W. 12.
They were armed with sticks and spears and were also carrying their flag.
They were raising party slogans and shouting that Gottipulla people should be killed.
They tried forcibly to remove the bund and on being obstructed by accused nos.
2 to 4 and their servants working at their farm the occupiers and the communists gave a severe beating to the latter.
Accused No. 1 came to the spot with his gun and fired at the aggressors in exercise of the right of private defence.
Accused no.10, according to this version, was not present at the spot.
In his statement under section 342, Cr.
P.C. this accused pleaded alibi by stating that he was at Sivapuram, Kadapa district on the fateful day having gone there weeks before and that he knew nothing about this occurrence; according to him he stayed in Sivapuram for about one month and himself surrendered in the Magistrate 's court on hearing that he was named as an accus ed in this case.
The trial court did not accept his plea of alibi nor did the High Court accept it and we do not find any cogent ground for disagreeing with this conclusion.
432 Now, the facts in the background of which, the question of Tight of private defence is to be considered are that the Kunta was the property of the Government and it was registered as a source of irrigation in the year 1958 or 1959.
The occupiers were thus cultivating the Kunta in an unauthorised manner.
Both sides had also secured injunction orders from the civil court against their opponents and the orders secured by the accused restrained the opposite party (plaintiffs in the suit) from cutting any breaches in the bund.
The accused no doubt seemed to have put up the present bund after the occupiers had grown their crops but it is clear that for a couple of years previously there was insufficient rain and there was also no cultivation in the Kunta.
The present bund was apparently raised on September 4, because it was on the morning of September 5, that the existence of the bund is stated to have been noticed by the occupiers.
Thereafter the occupiers approached the police authorities for assistance in getting the bund removed but unfortunately the matter was not dealt with by the authorities in an effective manner as they ought to have.
Having failed in their attempt to have the bund removed, the occupiers with their communist helpers seem to have gone to the spot on the day of the occurrence to help themselves.
Up to this stage there does not seem to be any controversy.
The only difference between the rival versions relates to the question, whether or not the party of the occupiers was armed and their number.
The prosecution witnesses would have us believe that they (the occupiers) along with some of their friends and supporters had gone to the Kunta unarmed to peacefully persuade the accused persons to remove the bund and that the accused persons beat them tip with sticks and spears.
The occupiers, acting merely in self defence, snatched the sticks and spears from some of the accused persons and gave them a beating whereupon accused No. 10 used his gun indiscriminately firing at the party of the occupiers.
The accused, on the other hand, claimed that the party of the occupiers, helped by prominent communists which far outnumbered the accused persons were armed with sticks and spears and they forcibly tried to remove the bund and when the accused objected they were beaten up.
Apprehending danger to their lives, the gun was used on behalf of the party of the accused persons.
It was thus in exercise of the right of private defence that this gun was used.
It may at this stage be pointed out that the accused persons had also reported the matter to the police but on the plea that the police was siding with the occupiers and favouring them the accused persons filed a complaint in the court of a Magistrate against 35 persons and both the cases were tried simultaneously.
As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as eye witnesses are clearly interested in the occupiers the nature and 433 extent of the injuries suffered by the men of the two factions would serve as more reliable material for arriving at the truth.
It is in this connection noteworthy that even according to the prosecution witnesses the party of the occupiers consisted of not less than 20, persons.
We may now turn to the wound certificates of the accused persons.
Gottipulla Venkata Siva Subbarayanam, aged 60 years, accused No. 1, had 10 injuries on his person mainly on the head, base of the neck and the shoulders and dying declaration was considered necessary by the Civil Assistant Surgeon.
Gotti pulla Bapaiah, aged about 50 years, accused No. 2 had the following injuries on his person : 1.
A contusion 12" in length x 1/2" with raised edges placed diagonally across the upper 1 /3 of left half of the back, the lower and towards the spine and the upper end towards the shoulder.
Brownish red in colour; 2.
A contusion brownish red in colour 1" in diameter situated on the right shoulder; 3.
Whole of the right shoulder joint swollen and brownish red in colour.
Movements at right shoulder joint restricted; 4.
A contusion bluish in colour 3" in diameter on the outer aspect of upper 2 1/2 of the right arm; 5.
A contusion 6"X1/2" with raised edges situated diagonally across the right side back, the outer end towards the axilla and the upper end towards the neck.
Brownish in colour; 6.
Whole of the right hand swollen and tender brownish red in colour; 7.
A lacerated injury 2" x 1/2" scalp deep situated on the left parietal, eminence 4" above Pinna of left ear.
Clotted blood seen in the wound and is placed transversely; 8.
An incised wound transversly placed on the right half of centre of occiput at the back of head 1 1/2" x 1/4" scalp deep.
Clotted blood found in the wound.
X ray report disclosed M.C. dislocation of right acromio clavicular joint.
Gottipulla Seshayya, aged 50 years, accused No. 3, had two injuries on his person one of which was incised wound scalp deep situated diagonally on the front half of right parietal bone.
Dying declaration was not considered necessary and he was discharged from the hospital on the 16th September, 1961 after six days.
434 Gottipulla Subba Rao, aged 48 years, accused No. 4 had a brownish red contusion with raised edges and small abrasion over it situated transversely on the right forearm, 1/3 of which was swollen and tender.
There was a fracture of the bone below.
He also remained in the hospital from September 10, to September 16.
Korlagunta Narayana Rao, aged 35 years, accused No. 5 had four injuries on his person including a lacerated injury 2" x 1/2 " scalp deep on the front of the right parietal bone, 1/2" to the right of mid line of skull and another similar injury 1" x 1/2" scalp deep on a contusion 3" in diameter, brownish red in colour at the back of junction of both parietal bones in between parietal eminences.
Shaik Madarsaheb, aged 25 years, accused No. 6, had five injuries on his person including a contusion.
He too remained in the hospital for six days upto September 16, 1961.
Thota Seetharamayya, aged 40 years, accused No. 7 had a simple injury on his right hand ring ginger.
Accused No. 8, Thota Subba Rao, aged 22 years had only a contusion on right buttocks.
These injuries quite clearly suggest that the party of occupiers did not consist of a few unarmed persons who had no design to forcibly remove the bund.
It is the prosecution case that the accused were determined not to allow the bund to be removed without an order from the Government authorities and that they were prepared to use force to protect the bund.
The accused were also armed with the gun belonging to accused No. I and this was fully known to the occupiers.
In this background it is not possible to accept the story that the prosecution witnesses had one to the Kunta unarmed and it was only when they were beaten by the accused persons that they in self defence snatched the sticks and spears from some of the accused persons and beat up the others With 'those sticks and spears.
Some of the injuries found on the persons of the prosecution witnesses were of course caused by blunt weapons but most of the injuries were, according to the medical evidence caused by gun shots.
According to the trial court both parties asserted their respective claims, the occupiers to the use of the land in the Kunta for cultivation and the accused to the use of the Kunta as a source of supply of rain water for irrigating their land and these conflicting rights could not co exist.
When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up.
The two factions had a1so, affiliations with two different political parties 435 the occupiers had full support of the Communist Party and accused No. 10 was a member of the Mandal Congress.
The court also did not believe the prosecution version that prosecution witnesses had gone to the Kunta to peacefully persuade the accused persons to remove the bund.
It held the occupation of the Kunta by the occupiers to be unauthorised after its registration as an irrigation tanks.
It further held that the bund as it existed on September 5, 1961had been raised by the accused persons but there were sluices and vents in the southern bund.
The court also found that water from Errache uvu used to flow into the bund of the Kunta from where it passed on to the fields of the accused nos.
1 to 4 with the result that the accused persons were justified in raising the bund and if there was any contravention of the civil court 's injunction the occupiers should have approached that court for appropriate relief.
It was on this line of reasoning that the action of the accused in protecting the bund was upheld.
On a consideration of the prosecution evidence the trial court observed that notwithstanding the denial of his presence at the spot by accused No. 10 it was open to him to say that on the prosecution evidence itself he must be held to have acted in exercise of the right of private defence and so observing that court expressed its conclusion thus : "The facts and circumstances elicited in the prosecution evidence referred to above clearly establish that the accused 1 to 9 were maintaining a right at that time, that the bund was being removed by men on the other side and the men on the other side also inflicted simple and grievous injuries on the accused 1 to 9.
In such a situation it was open either to any of the accused 1 to 9 or even to the 10th accused to do something to avert further beating.
The beating to the extent to which it took place resulted in grievous injuries to some of the accused.
Under these circumstances it has to be held that the facts disclose a situation in which the 10th accused can well claim to have acted in the exercise of the right of private defence.
Charges 4 to 6, 10 to 13, 15 to 17 against the 10th accused, therefore, fail.
Consequently, the charges 7, 8 and 9 against the remaining accused also fail.
" In regard to the other charges, after discussing the evidence, in the case and other material on the record and criticising the failure on the part of the police authorities to take effective and timely measures in advance to prevent the occurrence in question the trial court came to the conclusion that in regard to the actual beating suffered by the members of both parties the evidence was so conflicting and their respective versions so distorted that 436 no definite finding could safely be arrived at.
All that emerged from the material in the court 's view was that the accused wanted to retain the bund which the prosecution party wanted to remove and the fight ensued.
On this view the accused were acquitted.
On appeal Basi Reddy J., who disposed it of in the High Court under section 429, Cr.
P.C. felt that the case put forward by the prosecution was substantially true and the case set up by the defence palpably false.
According to the learned Judge neither the accused had a right to put up the bund nor had the occupiers a right to encroach on the bed of the Kunta.
The injunction order in favour of the accused was only based on the existence of a bund at the time of the order and thus did not entitle the accused to raise a new bund whereas the injunction order in favour of the occupiers restrained the accused persons from interfering with the enjoyment of the Kunta by the occupiers.
The accused who had raised the bund and who being fully armed were determined to guard and preserve it by use of force were held by the learned Judge to constitute an unlawful assembly.
Accused nos.
2, 4 and 10 were held to be armed with deadly weapons and therefore guilty of section 148, I.P.C. and the other accused were held guilty under section 147, I.P.C. The right of private defence was also negatived by the learned Judge.
It was observed that this right had not been pleaded by accused No. 10 and on the prosecution evidence the accused had first attacked the mediators on their inter vention to prevent the occupiers being beaten up and it was thereafter that P.Ws. 5 and 7 and others beat the accused persons in retaliation.
The High Court did not consider it material whether the prosecution witnesses and others had brought with them sticks or had snatched the same from the accused persons and sustenance of injuries by accused nos.
1 to 8 in this connection was held not to give rise to any right of private defence.
Holding the use of the gun by accused No. 10 to be his individual act independent of the object of the assembly he alone was held guilty of the offence of murder.
In our opinion the High Court has misconceived the law in regard to the right of private defence and the appeal has, therefore, to be allowed.
The right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits.
Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order.
The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to 437 them or to punish the wrongdoer for commission of offences.
The right of private defence serves a social purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril; (Munshi Ram vs Delhi Administration(1) and Kishna vs State of Rajasthan(2).
But this right is basically preventive and not punitive.
It is in this background that the provisions of sections 96 to 106, I.P.C. which deal with the right of private defence have to be construed.
According to section 96 nothing is an offence which is done in the exercise of the right of private defence and under section 97 subject to the restrictions contained in section 99 every person has a right to, defend : (1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether movable or immovable of himself or of any other person against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences.
The right of private defence, according to section 99, does not extend to an act which does, not reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith etc., and there is also no right of private defencein cases in which there is time to have recourse to the protection of the public authorities.
Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence.
Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants.
They are: (1) if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof and (2) if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release.
In case of less serious offences this right extends to causing any harm other than death.
The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues.
The right of private defence of property under section 103 extends, subject to section 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house breaking by night, mischief by fire on any building etc.
, or if such offence is, theft, mis (1) Crl.
A. No. 124 of 1965 decided on 27.11.1967.
(2) Crl.
A. No. 23 of 1960 decided on 30.10.1962.
L7Sup.
CI(NP)/70 13 438 chief or house trespass in such circumstances as may reasonably cause apprehension that death, or grievous hurt will be the consequence, if the right of private defence is not exercised.
This right commences when.
reasonable apprehension of danger to the property commences and its duration, as prescribed in section 105, in case of defence against criminal trespass or mischief, continues as long as the offender continues in the commission of such offence.
Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons.
In the case in hand it is undoubtedly true that the accused persons are found to have raised the bund after the rainfall of September 4, 1961.
But it is indisputable that the occupiers had ample opportunity of approaching the public authorities concerned if they felt that their right had been encroached upon.
it is noteworthy that the accused persons had accomplished the raising ,of the bund long before the occupiers noticed it.
A civil suit had already been instituted by them as far back as 1957 in respect of their right to cultivate the Kunta.
In that suit a permanent in.
junction had been sought against the defendants and their agents etc., restraining them from interfering with the plaintiffs possession and enjoyment of the disputed land.
Damages amounting to Rs. 300/ were also claimed in that suit for loss suffered by the plaintiffs as a result of trespass alleged to have been committed by the defendants on the said land.
This suit was pending at the time of the occurrence in question and as observed earlier in February, 1960 both sides had secured injunctions in this suit.
The police authorities had also been approached by the occupiers with a complaint against the recent raising of the bund by the accused persons a couple of days prior to the present occurrence.
If the Sub Inspector concerned was guilty of grave dereliction of duty (as in our opinion he clearly was) the higher authorities could easily have been approached by the occupiers and their supporters.
Even the civil court could have been moved with a complaint that the accused persons were interfering with the occupiers ' possession and enjoyment of the Kunta.
But instead of having recourse to these steps the occupiers and their supporters decided to go to the spot in large numbers fully determined to remove the bund by use of force.
When this attempt was foiled by the accused persons with show of force the party of the prosecution witnesses mercilessly beat up some of the accused persons who were advanced in age.
This conduct on the part of the occupiers and their supporters was, in our opinion, sufficient, on the facts and circumstances of this case, to give rise to a reasonable apprehension in the mind of accused No. 10 that the victims of this assault would have been killed had he not exercised the right of private defence.
The use of the gun by accused No. 10 against the members of the opposite faction would thus seem to be justified.
It may be 439 recalled that accused No. 1 aged about 60 years, who is the father in law of accused No. 10 had received as many as 10 injuries mostly on vital parts of the body and accused No. 2 about 50, years old had also been subjected to severe beating.
In a situation like this it is not possible for an average person whose mental excitement can be better imagined than described, to weigh the position in golden scales and it was, in our opinion, wellnigh impossible for the person placed in the position of accused No. 10 to take a calm and objective view expected in the detached atmosphere of a court, and calculate with arithmetical precision as to how much force would effectively serve the purpose of selfdefence and when to stop.
It appears that the persons against whom the gun was used were the real aggressors from whom accused No. 10, agitated in mind as he must be at that time, apprehended grave danger to the lives of the other accused persons and ultimately to himself.
We are, therefore, satisfied that accused No. 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution wit nesses who had come to the spot in support of the occupiers to use force in removing the bund and who actually did use it and mercilessly beat up the accused persons and that accused No. 10 did not exceed this right.
The fact that the plea of self defence was not raised by accused No. 10 and that he had on the contrary pleaded alibi does not in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right.
When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified.
in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence.
The analogy of estoppel or of the technical rules of civil pleadings is, in cases like the present, inappropriate and the Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive.
The approach of the High Court in this matter seems to us to be erroneous.
We accordingly allow the appeal and acquit the appellants.
V.P.S. Appeal allowed.

summary/full:
With respect to a kunta, which was government property, certain persons who had occupied a part of the land in the kunta and the accused, were asserting their respective claims, the former to the use of the land in the kunta for cultivation and latter, to the use of the kunta as a source of irrigation.
The occupiers and accused belonged to opposite political factions.
A suit was filed by the occupiers and the civil court passed two orders of injunction, one restraining the accused from interfering with the occupiers ' possession, and the other, restraining the occupiers from opening sluices in the bund of the kunta.
While the suit was pending the occupies raised corps on their land and the accused raised a new bund.
Since their crops were being damaged as a result of the raising of the new bund, the occupiers approached the police 'authorities and tahsildar for the removal of the bund, but they did not give any effective help.
The accused were not willing to allow the removal of the bund without any Government order.
Thereupon, the occupiers and their supporters, numbering not less than twenty went to the spot to remove the bund by force, but the accused were present at the spot determined not to allow the bund to be removed.
In the fight that ensued, the first accused, aged about 60 years, received ten injuries on the vital parts of his body and the Civil Assistant Surgeon who attended on him thought it was neces sary to take a dying declaration from him.
The second accused who was about 50 years old, was also subjected to severe beating.
Some of the other accused also received injuries.
The tenth accused, who had a gun in his hand, and who was the son in law of the first accused, shot at the actual aggressors and killed three of them and injured another.
The party of the occupiers asserted that they went to the scene of occurrence unarmed and with the intention of peacefully persuading the accused to remove the bund and that when beaten by the: accused they snatched the sticks and spears from them and retaliated.
The tenth accused put forth a plea of alibi.
The other accused asserted that the party of the occupiers were the aggressors and that they acted in self defence.
Holding that it was not material to consider whether the occupiers 'and their supporters had brought with them sticks or snatched them from the accused, that the accused had attacked first, and that the injuries to the accused did not give rise to any right of private defence, the High Court convicted some of the accused for the offence under sections 147 I.P.C., to, the offence under section 148 I.P.C., and the tenth accused for the offences of murder and grievous hurt with a dangerous weapon.
In appeal to this Court, HELD : (1 ) When they went to the scene, the occupiers knew that determined not to allow the removal of the bund without an order from determined not to allow the removal of the bund without an order 'from the Government authorities.
In the circumstances the occupiers and their 424 supporters must have gone to the kunta fully armed, and it was not possible to accept their version.
[434 E G] (2) The occupiers moved in the matter only after the new bund was raised by the accused.
They had ample opportunity of approaching public authorities to have the bund removed.
When the occupiers and their supporters found that the police were guilty of a grave dereliction of their duty, they could have approached the higher authorities or the civil court in which the suit was pending.
Instead of having recourse to those steps they decided to go to the scene in large numbers fully determined to remove the bund by force.
When that attempt was foiled by the accused with show of force, the members of occupiers ' party mercilessly beat up some of the accused persons who were advanced in age.
In such a situation it was not possible for an average person placed in the position of the tenth accused, to take a calm and objective view and calculate with arithmetical precision as to how much force would effectively serve the purpose of self defence and when to stop.
He only used the gun against the real aggressors from whom he apprehended grave danger to the lives of the other accused persons and to himself.
Therefore, he was fully justified in using his gun in the exercise of the right of private defence against the party of the occupiers.
[438 C D, E H; 439 A E] Except as against acts of public servants acting in good faith and when there is time to have recourse to the protection of public authorities, under section 97 I.P.C., every person has a right to defend : (1) his own body and the body of any other person against any offence affecting the human body, and (2) the property of himself or of any other person against theft, robbery, mischief, of criminal trespass.
Such a right is basically preventive and not punitive, and, nothing is an offence which is done in the exercise of the right.
Under section 100 one of the circumstances in which the right of private defence of the body extends to the voluntary causing of death of the assailant, is, if the assault, which occasions the exercise of the right, reasonably causes the apprehension that death or grievous hurt would otherwise be the consequences thereof.
[437 B D, E F] (3) When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence, the court would not be justified in ignoring that evidence and convicting the accused merely because he had set up a defence of alibi and set forth a plea different from the right of private defence.
Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object.
Therefore, the Court was not precluded from giving the tenth accused the benefit of the right of private defence.
[439 F H]


judgement:
Appeals Nos. 397, 400 to 402, 404 to 417, 422 to 4.41, 451, 1158 to 1161, 1176, 1178 to 1181, 1204, 1207 and 1407 of 1969.
Appeals from the judgments and orders dated January 6, 1969 of the Madras High Court in Writ petitions Nos. 846 of 1968 etc.
K. K. Venugopal, K. R. Nambiar and A. section Nambiar, for the appellants (in C.As.
Nos, 397, 400 to 402, 422,, 423, 441 and 451 of 1969).
M. C. Chagla, V. Subramaniam, V. T. Gopalan, Radharani, C. section Prakasa Rao and K. Jayaram, for the appellant I s (in.
404 to 417, 1179, 1180 of 1407 of 1969).
M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellant (in C.A. No. 1176 of 1969).
R. V. section Mani, for the appellants (in C.As.
424 to 428, 1158 to 1161 and 1207 of 1969).
A. K. Sen, C. A. Prakasa Rao and R. Gopalakrishnan, for the appellants (in C.As.
429, 431 to 438, 440, 441, 1178 and 1181 of 1969).
C. section Prakasa Rao, A. R. Ramanathan and R. Gopalakrishnan, for the appellant (in C.A. No. 430 of 1969).
507 C. section Prakasa Rao, R. Gopalakrishnan and Sudhir Khanna, for the appellant (in C.A. No. 439 of 1969).
C. section Prakasa Rao, K. K. Venugopal and R. Gopalakrishnan, for the appellant (in C.A. No. 1204 of 1969).
Niren De, Attorney General for India and A. V. Rangam, for the respondents (in C .
A. No. 397 of 1969).
section V. Gupte and A. V. Rangam, for the respondents (in C.A. No. 400 of 1969).
A. V. Rangam, for the respondents (in C.A. Nos. 401, 402, 404 to 417, 422 to 441, 451, 1158 to 1161, 1176, 1178 to 1181, 1204, 1207 and 1407 of 1969).
The Judgment of the Court was delivered by Hegde, J.
These 52 appellants are private stage carriage operators in the State of Tamil Nadu.
They have been operating in various routes in that State.
Some of those routes are proposed to be rationalised.
A draft scheme of nationalisation has been prepared and published under section 68 (C) of the Motor Vehicles Act (Central Act IV of 1939) (to be hereinafter referred to as 'the Act ').
The validity of the draft scheme was challenged by the appellants before the High Court of Madras under article 226 of the Constitution.
Incidentally the validity of some of the provisions of the amending Act XVIII of 1968 (Madras Act) also came to be challenged in those petitions.
A division bench of the Madras High Court consisting of Anantanarayanan C.J. and Natesan J. have dismissed those petitions.
As against the decision of the High Court these appeals have been brought on the strength of the certificates issued by the High Court.
In these appeals we are primarily concerned with the validity of the draft scheme under challenge.
The ground on which it is challenged is that the opinion requisite Under section 68 (C) of the Act was not formed by the State Government but by the Secretary to the government in the Industries, Labour and Housing Department, acting in pursuance of the powers conferred on him under rule 23(A) of the Madras Government Business Rules (to be, here inafter referred to as 'the Rules ').
The contention of the appellants is that the said rule is ultra vires the provisions of the Consti tution.
There is no dispute that if the rule in question is valid, the challenge directed against the &aft scheme must fail.
The High Court has opined that that rule is a valid rule.
It is the correctness of that conclusion that is primarily in issue in these, appeals.
508 Section 68(C) prescribes : "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion .thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." This section requires that the State transport undertaking must form the opinion contemplated therein.
In the State of Tamil Nadu, the State transport undertaking is a department of the State government.
Therefore the necessary opinion should have been formed by the State government.
It was urged on behalf of the appellants that under our constitutional set up, the requisite opinion could have been formed either by the Council of Ministers or the Minister to whom the business in question had been allocated under the 'Rules '.
The same could not have been formed by the 'Secretary who is merely an official and that too by the Secretary who is not the head of the department to which the functions under the Act had been assigned.
The contentions advanced on behalf of the appellants proceed thus : The executive power of the State vests in the Governor (article 154).
In the exercise of that power he has to be aided and advised by the Council of Ministers with the Chief Minister at the head (article 163(1)) but the Governor can make rules for more convenient transaction of the business of the government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion, (article 166(3)).
A Minister can only deal with the business that has been allocated to him by the Governor under 'the Rules '.
He is not competent to deal with any other business.
Motor Vehicles Act has been allocated to the Home Department.
Mr. Karunanidhi, the Transport Minister was not in charge of the Home Department.
Therefore his department could not have dealt with functions arising under the Act.
Further the Governor could not have allocated any business to a Secretary.
Hence in making rule 23(A), the Governor exceeded the powers conferred on him under article 166(3).
509 On the other hand, it was urged on behalf of the State of Tamil Nadu that originally the functions under the Motor Vehicles Act had been allocated to the Home Department but when Mr. Annadurai formed the D.M.K. government in Tamil Nadu in 1967, the Home Department as such was not allocated to any Minister.
The various subjects included in that department were split up and distributed amongst the various Ministers.
Transport was allocated to Mr. Karunanidhi.
Motor Vehicles Act as such was not allocated to any Minister.
The department of Transport included functions under the Motor Vehicles Act as well.
Ever since the D.M.K. ministry was formed, the functions under the Motor Vehicles Act were dealt with by the Transport ministry.
At the instance of the Transport Minister, Mr. Karunanidhi, Governor framed rule 23(A) for the more convenient discharge of the business.
On behalf of the government, it was further urged that article 166(3) has two, parts namely (1) rules for the more convenient transaction of the business of the government of the State and (2) rules relating to allocation of business of the State among the Ministers.
It was said that after allocating the business of the government among 'various Ministers, it was open to the Governor on the advice of the ministry to make rules for the convenient discharge of the business allocated.
Rule 23(A) is one such rule made under article 166(3).
Hence its validity is not open to question.
The impugned rule 23(A) was introduced for the first time by G.O.Ms.
No. 2715 Public dated 22 12 67.
Under sub cl.
(1) of that rule, it is provided that powers and functions which State transport undertaking may exercise under section 68(C) of the Act shall be exercised and discharged on behalf of the State government by the Secretary to the Government of Madras in the Industries.
Labour and Housing Department.
The rule further provides that cases relating to such powers and functions of the State transport undertaking under section 68(C) need not be submitted to the Minister in charge.
Under sub cl.
(2) of that rule, the powers and functions of the State government under section 68(D) of the Act and the rules relating thereto are directed to be exercised and discharged by the Secretary to the government in the Home Department.
Rule 4 of 'the Rules ' deals with allocation and disposal of business.
It provides.
that the business of the Government shall be transacted in the department specified in the 1st Sch.
and classified and distributed between those departments as laid down therein.
Rule 5 says that Governor shall, on the advice of the Chief Minister allot the business of the government among the Ministers, assigning one or more departments to the charge of a Minister but the proviso to that rule says that nothing in that rule shall prevent the assigning of one department to the charge of more than one Minister.
510 Rule 6 prescribes that each department of the secretariat shall be under a Secretary who shall be the official head of the department.
Under rule 7, the Council of Ministers constituted under Art 163(1) is held collectively responsible for all the executive orders issued in the name of the Governor in accordance with rules, whether such orders are authorised, by an individual Minister on a matter pertaining to his portfolio or as a result of the discussion at the meeting of the Council of Ministers.
Rule 9 provides that without prejudice to the provisions of rule 7, the Minister in charge of a department shall be primarily responsible for the disposal of the business pertaining to his department.
Section III of the "Rules" containing rules 21 to 30 deal with the departmental disposal of business.
Rule 21 says that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he may think fit for the disposal of cases in the department; copies of such standing orders shall be sent to the Governor and the Chief Minister.
Rule 22 provides that each Minister shall by means of standing orders arrange with the secretary of the department what matters or class of matters are to be brought to his personal notice; copies of such standing orders has to be sent to the Governor and the Chief Minister.
Rule 23 prescribes that except as otherwise provided in the rules, all cases shall be submitted to the Minister in charge by the secretary of the department to which they belong.
Then comes rule 23(A) to which reference has already been made.
The first question that has to be decided is whether the functions under the Motor Vehicles Act had been assigned to Mr. Karunanidhi, the Minister for Transport.
It is true that when the various departments were reorganized in 1961, Motor Vehicles Act as well as Transport were included in the Home Department.
But when the D.M.K. ministry came to power after the 1967 general elections, the Home Department as such was not allocated to any Minister.
The various subjects included in that department were distributed amongst several Ministers.
Transport was allocated to the Transport Minister.
Motor Vehicles Act as such was not allocated to any Minister.
The allocation of business among the various Ministers appears to have been made under broad heads.
In 1961 while allocating subjects to the various departments there was a detailed and exhaustive enumeration of the subjects.
But that method was not adopted in 1967 while distributing the business of the government among the various Ministers.
The functions under the Act undoubtedly relate to Transport department.
It cannot be assumed that functions under the Act had not been assigned to any Minister.
It is proved that those functions were being discharged by the Minister for Transport. 'Hence we agree with the High Court that those functions had been 511 allocated to the Transport Minister and that the State transport undertaking was being run by the Transport ministry.
Mr. Karunanidhi has in his affidavit filed before the High Court sworn to the fact that rule 23(A) was framed at his instance.
Admittedly he could have assigned the functions under section 68(C) of the Act to the Transport Secretary by making a standing order under rule 22.
If he could have done that, we fail to see why he could not advise the Governor through the Chief Minister to make rule 23 (A).
It was urged on behalf of the appellants that the parliament has conferred powers under section 68(C) of the Act to a designated authority.
That power can be exercised only by that authority and by no one, else.
The authority concerned in the present case is the State government.
The government could not have delegated its statutory functions to any one else.
The government means the Governor aided and advised by his Ministers.
Therefore the required opinion should have been formed by the Minister to whom the business had been allocated by 'the Rules '.
It was further urged that if the functions of the Government can be discharged by any one else, then the doctrine of ministerial responsibility which is the very essence of the cabinet form of government disappears; such a situation is impermissible under our Constitution.
We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution.
Under our Constitution, the Governor is essentially a constitutional head; the administration of State is run by the Council of Ministers.
But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government.
In order to obviate that difficulty the Constitution has authorised the Governor under sub article
(3) of article 166 to make rules.
for the more convenient transaction of business of the government of the State and for the allocation amongst its Ministers, the business of the government.
All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister.
Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business.
He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function.
But this again he can do only on the advice of the Council of Ministers.
512 The cabinet is responsible, to the legislature for every act ion taken in any of the ministries.
That is the essence of joint responsibility.
That does not mean that each and every decision must be taken by the cabinet.
The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions.
Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry.
This again is a political responsibility and not personal responsibility.
Even the most hard working minister cannot attend to every business in his department.
If he attempts to do it, he is bound to make a mess of his department.
In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure.
The Minister is not expected to burden himself with the day to day administration.
His primary function is to.
lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the 'government.
When a civil servant takes a decision, he does not do it as a delegate of his Minister.
He does it on behalf of the government.
It is always open to a Minister to call for any file in his ministry and pass orders.
He may also issue directions to the officers in his ministry regarding the disposal of government business generally or as regards any specific case.
Subject to that over all power, the officers designated by the 'Rules ' or the standing orders, can take decisions on behalf of the government.
These officers are the limbs of the government and not its delegates.
In Emperor vs Sibnath Banerji and ors.
(1) construing section 5 9 (3) of the Government of India Act, 1935, a provision similar to article 166(3), the Judicial Committee held that it was within the competence of the Governor to empower a civil servant to transact any particular business of the government by making appropriate rules.
In that case their Lordships further observed_ that the Ministers like civil servants are subordinates to the Governor.
In Kalyan Singh vs State of U.P.(2) : this Court repelling the contention that the opinion formed by an official of the government does not fulfil the requirements of section 68 (C) observed : "The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government.
It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the (1) L. R. 72 T. A. p. 241.
(2) [1962] Sup.
(2) section C. R. p .76.
513 notification was issued.
It is not denied that the Secre tary of the said Department has power under the rules of business to act for the State Government in that behalf.
We, therefore, hold that in the present case the opinion was formed by the State transport undertaking within the meaning of section 68 (C) of the Act, and that, there was nothing illegal in the manner of initiation of the said Scheme".
In Ishwarlal Girdharlal Joshi etc.
vs State of Gujarat and anr.
( 3 ) this Court rejected_the contention that the opinion formed by the Deputy Secretary under section 17(1) of the Land Acquisition Act cannot be considered as the opinion of the State government.
After referring to the rules of business regulating the government business, this Court observed at p. 282 "In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfy themselves about the need for acquisition under section 6, the urgency of the matter and the existence of waste and arable lands for the application of sub sections
(1) and (4) of section 17.
In view of the Rules of business and the Instructions their determination became the determination of Government and no exception could be taken." In Capital Multi purpose Co operative Society vs State of Madhya Pradesh and Ors.
(1), this Court dealing with the scope of section 68 (D) of the Act observed that the State Government obviously is not a natural person and therefore some natural person has to give hearing on behalf of the State Government and hence the hearing given by the special secretary pursuant to the power conferred on him by the business rules framed under article 166(3) is a valid hearing.
As mentioned earlier in the very nature of things, neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government.
Those matters have to be attended to and decisions taken by various officials at various levels.
When those officials discharge the functions allotted to them, they are doing so as limbs of the government and not as persons to whom the power of the government had been delegated.
In Halsbury Laws of England Vol.
I 3rd Edn.
at p. 170, it is observed : "Where functions entrusted to a Minister are performed by an official employed in the Minister 's department (1) [1968] 2, section C R. p. 266.
(2) C. A. 2201 of 1966 decided on 30.3.1967.
L8Sup CI/70 3 514 there is in law no delegation because constitutionally the act or decision of the official is that of the Minister.
" Similar view has been expressed in "Principles of Administrative Law" by Griffith and Street.
That is also the view taken by Sir Ivor Jennings in his "Cabinet Government".
For the reasons mentioned above, we are of opinion that the functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under "the Rules" and the Secretary of that ministry had been validly authorised under rule 23 A to take action under section 68 (C) of the Act.
The validity of some of the provisions of Madras Act 18 of 1968 which amended the Act was canvassed before us,.
It is not necessary to go into those questions for deciding the validity of the impugned scheme.
Those questions can be more appropriately gone into and decided if 'and when action is taken on the strength of those provisions.
Hence we leave open those questions.
In the result these appeals fail and they are dismissed with costs hearing fee one set.
R.K.P.S. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
A draft scheme for the nationalisation of certain transport routes was prepared and published by the respondent State Government under Section 68(C) of the Motor Vehicles Act 4 of 1939.
The validity of the scheme was challenged by the appellants, who were private stage carriage operators, in a petition under Article 226 of the Constitution but the peti tion was dismissed by the High Court.
In appeal to this Court the validity of the scheme was mainly challenged on the ground that the opinion requisite under Section 68(C) was not formed by the State Government but by the Secretary to the Government acting pursuant to powers conferred on him under Rule 23 A of the Madras Government Business Rule.
It was further contended that the said rule was ultra vires, the provisions of the Constitution; Parliament has conferred powers under Section, 68 C to a designated authority and that power can be exercised only by the authority specified and no one else.
The authority concerned in the present case was the State Government and it could not have delegated is statutory 'functions to any one else.
By Government was meant the Governor aided and advised by his Ministers.
The requisite opinion should therefore have been formed by the Minister to whom the business had been allocated under the Rules.
HELD : The functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry had been validly authorised under Rule 23 A to take action under section 68(C) of the Act.
In the very nature of things, neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government.
Those matters have to be attended to and decisions taken by various officials at various levels.
When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated.
[513 G] Under our Constitution, the Governor is essentially a constitutional head; the administration of the State is run by the Council of Ministers.
in order to obviate the difficulty that would arise if the Council of Ministers had to deal with every matter, the Constitution has authorised the Governor under sub article (3) of the Article 166 to make rules for the more convenient transaction of the business of the Government of the State and for the allocation amongst its Ministers of the business of Government.
All matters excepting those in which the Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on 506 the advice of the Chief Minister.
Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business.
He can not only allocate the various subjects amongst the Ministers but may go further and on the advice of his Ministers, designate a particular official to discharge any particular function.
[511 F] The cabinet is responsible to the Legislature for every action taken in any of the Ministries.
This is the essence of joint responsibility.
That does not mean that each and every decision must be taken by the cabinet.
The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the functions of the Government.
Similarly an individual Minister is responsible to, the Legislature, for every action taken or omitted to be taken in his ministry.
This again is a political responsibility and not personal responsibility.
In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure.
The Minister is not expected to burden himself with the day to day administration.
His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the, Government.
[512 A] Emperor vs Sibnath Banerjee & Ors.
L.R. 72 I.A. p. 241; Kalyan Singh vs State of U.P. [1962] Supp. 2 S.C.R. 76; Ishwarlal Girdharlal Joshi vs State of Gujarat and anr.
, , Capital Multipurpose Cooperative Society vs State of Madhya Pradesh and Ors.
Civil Appeal No. 2201/1966 decided on 30 3 1967; referred to.


judgement:
Appeal No. 2315 of 1966.
Appeal from the judgment and order, dated August 25, 1965 of the Madras High Court in Tax Case No. 216 of 1962 (Reference No. 121 of 1962).
Sukumar Mitra and R. N. Sachthey, for the appellant.
T. A. Ramachandran, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Arunachallam Chettiar whom will hereinafter be called "A Senior" had three wives Valami Achi, Lakshmi Achi and Nachiar Achi.
By Valami Achi he had a son who was also called Arunachallam We will call him "A. Junior".
A Junior married Umayal Achi.
A Senior, A. Junior and the wives of the two members formed a joint Hindu family, possessing a large estate in Ceylon.
A. Junior died on July, 9, 1934.
A Senior died on February 1 23, 1.938, leaving heirs running his two wives Lakshmi Achi and Nachiar Achi and his son 's widow Umayal Achi.
The Revenue authorities in Ceylon levied Rs. 221.743 as estate duty in respect of the estate of A. Junior and Rs. 6,33,601.76 in respect of the estate of A. Senior.
The levy was challenged by the three widows and the dispute was carried to the Judicial Committee of the Privy Council.
The Board set aside the entire levy.
In 1957 the Government of Ceylon deposited in Court the duty which was levied together with Rs. 7,97,072 as interest due from the date on which the estate duty was collected.
After the death of A. Senior, there were disputes between the three widows Lakshman Achi, Nachiar Achi and Uniayal Achi, and each widow adopted a son to her deceased husband.
A suit for, partition of the joint family property was then filed in the Civil Court at Deokotai.
Under a settlement reached on February 17, 1949 between the three widows and the adopted son of A. Junior (whom we will hereinafter call the assessee) was held entitled, to 5/24th share in the estate.
This appeal relates to the liability to income tax on the share of the assessee in the amount of interest paid on the estate duty which was refunded by the Ceylon Government after the Judicial, Committee set aside the order levying the estate duty.
The Income Tax officer, karaikudi brought to tax the, 'assessees share of the amount interest received from the Ceylon Government on the estate duty.
The Income tax Officer rejected the, contention of the assessee that the receipt was of a capital nature,: and that in any case it was a casual receipt and on that account 309 exempt from tax under section 4(3) (vii) of the Income tax Act, 1922The order was confirmed by the Appellate Assistant Commissioner.
The Income tax Appellate Tribunal, however, reversed the order holding that the amount of interest received by the assessee was of a capital nature and was on that account not liable to tax.
The Tribunal referred the following question to the High Court of Madras under section 66(1) of the Income tax Act, 1922 "Whether the sum of Rs. 1,20,830 or Any part thereof is assessable to tax ?" The High Court was of the opinion that the assessee 's share in the interest attributable to the period ending February 17, 1947 was not taxable, but the 'share attributable to the period between that date and the date of payment by the Ceylon Government was taxable.
Against that decision, with certificate granted by the High Court the Commissioner of Income tax has appealed to this Court.
The assessee has not appealed against the opinion insofar as it was held that the receipt to the extent to which it related to a period subsequent to February 17, 1947 is taxable.
In the view of.
the High Court the amounts paid as estate duty must be deemed in law to have come from the joint family, estate and on severance of the joint family status,in February, 1947, each adopted son received his share in the estate then existing as capital.
Counsel for the Revenue countended that the High Court erred in holding that the assessee 's share in the amount of interest received from the Ceylon Government Was of the nature of capital.
Counsel submitted that the character of the receipt which was revenue when received by the joint family, could not be altered when it was divided between the members of the family.
Counsel also contended that this Court has held that the share in the amount of interest on estate duty received by the son adopted by Nachiar Achi was liable to be taxed as income: RM.
Ramanathan Chettiar vs Commissioner of Income tax Madras( ') .
But that case has no relevance here.
for the only argument advanced before the Tribunal and the High Court in that case was.
that the receipt was of a casual,and non recurring nature and was on that account exempt from tax under section 4(3) (vii) of the Income tax Act.
This Court negatived the contention.
The Court declined to consider the argument advanced at the Bar that the share allotted to the adopted son of Nachiar Achi being a share in the estate of A. Senior was of the nature of capital, because the question did not arise out of the order made by the Income tax Appellate Tribunal and was not made the subject matter of 'lie reference.
In RM.
Ramanathan (1) L7Sup.
CI.(NP)70 5 310 Chettiar 's case(1) the question argued before the High Court in this case was not raised before the income tax Appellate Tribunal and was not decided.
After the death of A. Senior the property was held by the three widows as members of the Hindu Undevided family.
Under the Hindu Law it is not predicted of a Hindu Joint family that there must be a male member in existence.
Even after the death of the sole male member, so long as the property which was originally of the Joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues.
Payment of the estate duty was doubtless made out of the joint family fund and the interest which accrued due, also acquired the character of joint family property when received.
The joint family status came to an end only on February 17, 1947.
On the severance of the joint status the assessee became entitled to a share in the family estate.
The amount of interest on the estate duty accrued as income to the joint family but it was income of the joint family and not of the individual members.
But when a share out of the estate which included the interest on estate duty was received by the assessee it had not the character of income.
Once the.
income was received by the joint family, the amount lost its character of income: it became merged in the joint family assets and became the capital 'Of the family.
The share received by the assessee was therefore a share in the capital of the family.
The share in the joint family property which included interest on the estate duty which accrued prior to February 17, 1947 was rightly held by the High Court to be not of the nature of revenue and accordingly not taxable.
We express no opinion on the correctness of the finding of the High Court that the interest accrued due after February 17, 1947, must be regarded as income to the extent of the share of each of the members of the family.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

summary/full:
The revenue authorities in Ceylon levied estate duty in respect of the estate of A and his son in the hands of their three widows.
The Judicial Committee of the Privy Council set aside the levy and in 1957 the Government of Ceylon deposited in Court the duty which was levied, with interest.
On February 17, 1947, the joint family estate was parti tioned among the three widows and their adopted sons.
The Income tax Officer brought to tax one of the adopted son 's share of the interest received from the Ceylon Government on the estate duty.
The Tribunal reversed the assessment order holding that the amount of interest received by the assessee was of a capital nature and was on that account not liable ' to tax.
on a reference the High Court was of the opinion that the assessee 's share in the interest attributable to the period ending February 17, 1947 was not taxable but the share attributable to the period between that date and the date of payment by the Ceylon Government was taxable.
In the view of the High Court the amounts paid as estate duty had to be deemed in law to have come from the joint family estate and on severance of the joint family status in February 1947 each adopted son received his share in the estate then existing as capital.
The Commissioner appealed to this Court.
It was contended that the character of the receipt which was revenue when received by the joint family could not be altered when it was divided between the members of the joint family.
Dismissing the appeal, HELD : On the severance of the joint status the assessee became entitled to a 'share in the family estate.
The amount of interest on the state duty accrued as income to the joint family but it was income of the joint family and not of the individual members.
But when a share out of the estate which included the interest on estate duty was received by the assessee it had not the character of income.
Once the income was received by the joint family, the amount lost its character of income : it became merged in the joint family estate and became the capital of the amity.
The share received by the assessee was therefore a share in the capital of the family.
Therefore, the share in the joint family property which included interest on the estate duty which accrued prior to February 17, 1947 was rightly held by the High Court to be not of the nature of revenue and accordingly not taxable.
[310 C E] RM.
Ramananthan Chettiar vs Commissioner of Incometax Madras, , distinguished.
[The Court did not express any opinion on the correctness of the finding of the High Court that the interest accrued due after February 17, 1947 must be regarded as income to the extent of the share of each of the members of the family.]


judgement:
ivil Appeal No. 1552 of 1966.
735 Appeal by special leave from the judgment and order dated June 8, 1966 of the Mysore High Court in C.R.P. No. 1118 of 1964.
M. C. Chagla and R. Gopalakrishnan, for the appellant.
M. R. Ramamurthi, section section Javali and M. Veerappa, for the respondent.
The Judgment of the Court was delivered by Vaidailyngam J.
this appeal, by special leave, is against the judgment of the Mysore High Court, dated June 8, 1966 in Civil Revision Petition No. 1118 of 1964.
The respondent land lord filed an application, dated July 6, 1962 under section 21 (1) (j) of the Mysore Rent Control Act, 1961 (Mysore Act XXII of 1961) (hereinafter called the Act) before the Rent Controller for eviction of the tenants (the appellants herein) on the ground that the premises were reasonably and bonafide required by him for the immediate purpose of demolishing and erecting of a new building.
According to the respondent the premises were old and were (not suitable for continued occupation.
The respondent had also stated in his application that he had obtained the necessary licence for erecting a new building after demolition of the existing building and that he had made all preparations for demolition and erection of new buildings on the site.
The appellant tenant contested the claim of the landlord on several grounds.
He pleaded that the premises were not old and that it was quite suitable for occupation and it does not require any re construction or remodelling.
The allegations that the building was old and required to be reconstructed were not bona fide and had been made by the landlord only as a pretext for evicting the tenant.
The tenant further pleaded that the requirement of the landlord was neither reasonable nor bona fide.
In any event, the tenant claimed that he should be entitled to be paid the value of the improvements that had been effected by him.
The Rent Controller, by his order dated January 22, 1964 accepted the claim of the respondent and ordered eviction of the appellant granting the tenant one month 's time for delivering vacant possession.
Though the Consulting Engineer who gave evidence as P.W. 2 on behalf of the respondent had stated that the building was over 60 years old but nevertheless it could go co for about 15 years more, the Rent Controller actually found that the building was more than 50 years old and that it was an old fashioned one.
He further found that when the landlord desired to pull it down and put up a modern building thereon, it could not under the circumstances, be said that his claim was not bona fide or reasonable 736 and that the intention of the landlord in pulling down the building and erecting a new one to get a better return was certainly understandable.
The Rent Controller further found that the landlord had proved that he had sufficient means to construct the building and that he had also obtained the necessary sanction from the Municipality concerned for reconstruction of the building.
In view of all these circumstances, the Rent Controller found that the requirement of the landlord was quite reasonable and bona fide.
Regarding the claim of the tenant for payment of improvements before eviction is ordered, the Rent Controller found that such a claim, even if established, could not stand in the way of the landlord getting possession of the premises.
Ultimately the application filed by the landlord was allowed.
The findings recorded by the Rent Controller were confirmed by the learned District Judge, by his judgment dated October 19, 1964 in A.S. No. 43 of 1964 taken before him by the tenant.
The revision filed by the appellant before the High Court was rejected by order dated June 8, 1966.
Mr. Chagla, learned counsel appearing for the appellant, contended that the interpretation placed by all the Courts on section 21 (j) of the Act was erroneous.
According to the learned counsel, unless the landlord was able to establish that the condition of the building was such that it required immediate demolition and re construction, no eviction of the tenant could be ordered under section 21 (1) (j) of the Act.
On the findings of the Courts, based upon the evidence of the Engineer, that though the building was old it could continue to exist for another 15 years, it should have been held that the conditions mentioned in section 21 (I) (j) were not attracted to justify an order of eviction of the tenant.
Mr. Ramamurthi, learned counsel for the respondent, pointed out that in order to attract section 21 (I) (j) it was not necessary that the landlord should establish that the condition of the building was such that it required to be demolished immediately.
On the other hand, the sub section made it clear that the requirement contemplated was that of the landlord and once his requirement had been held by all the Courts to be reasonable and bona fide, the order passed for eviction of the tenant was fully justified.
Having due regard to the scheme of the Act, we are satisfied that the interpretation placed upon section 21(1)(j) by the High Court is correct.
Section 21 (1), while placing a general embargo against a landlord from evicting a tenant, recognises, in its.
proviso the circumstances under which a landlord could seek recovery of 737 possession of a premises.
The ground upon which the landlord asked for eviction, in the present case, was based on section 21 (1) (j).
The material provision is as follows : "21.
(1) Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant: Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely: . . . . . (j) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished; . . . . . .
According to Mr. Chagla, the words 'reasonably and bona fide required ', occurring in this clause, must be interpreted to have reference to the condition of the building, the demolition of which is sought to be made and those words have no reference to any intention entertained by the landlord.
The mere fact that a landlord may bona fide and reasonably entertain an idea of demolishing the building and reconstructing the same with a view to putting the property to a more profitable use after construction, will not satisfy the requirements of the said clause.
That is, according to the learned counsel, the condition of the building must be such that it is immediately necessary to demolish it, in which case alone eviction under cl.
(j) could be ordered.
We are not inclined to accept this construction sought to be placed by the appellant on the clause in question.
The proviso to section 21 (1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant.
The requirement contemplated under clause (j) of the proviso to sub section
( 1 ) is that of the landlord and it does not have any reference to the condition of the building as such.
What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one.
No doubt, as to whether the landlord 's requirement is reason 738 able and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the.
building, and other steps taken by him in that regard.
In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord.
In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.
That the condition of the property may be such which requires immediate demolition is emphasized in cl.
(k) of the proviso.
When such a specific provision has been made in cl.
(k), the condition of the building cannot come into the picture nor could it have been dealt with again in cl.
So the requirement under cl.
(j) is that of the landlord and cannot have any reference to the building.
This Court, in Neta Ram vs Jiwan Lal (1) in interpreting no doubt a slightly differently worded provision in section 13(3)(a)(iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 B.K. (8 of 2006 BK) held that one of the circumstances which could be taken into account in considering the requirements of the landlord with reference to the existing building is 'the possibility of its being put to a more profitable use after construction '.
In the case 'before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building.
If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under section 26(1) to issue a notice to the landlord of his intention to occupy the pre mises from which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request.
Again under section 27, the tenant has got a right to occupy the new building on its completion provided he satisfies the requirements contained in that section.
Under section 2 8 (I), the landlord is bound to intimate the tenant from whom he had received a notice under section 27 the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same.
Mr. Chagla has referred us to a decision of the Madras High Court in Mehsin Bhai vs Hate & Company (2).
The section which came up for consideration before the Madras High Court was section 14(3) of the Madras Buildings (Lease and Rent Control) Act, 1960 (Act XVIII of 1960) which was as follows: (1) [1962] Supp. 2 S.C.R. 623.
(2) 739 14(1)(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
" That clause is substantially similar to section 21(1)(j) of the Act.
In the Madras case it is seen that the building from which the tenant was sought to be evicted was in good condition and there was no danger of its failing for another 20 years though the building was old.
Under those circumstances when the landlord applied under section 14(1) (h) of the Madras Act for eviction on the ground that he wished to demolish the building for the purpose of erecting a new building thereon, the High Court affirmed the decision of the Subordinate Court declining relief to the landlord, Though the learned Judge states that landlords May bona fide require such buildings, particularly old buildings in their own interest for demolition and reconstruction, he holds that it is equally possible that the mere fact that a building is old may be taken advantage of by a landlord to put forth such pretext, his real object being ulterior and not bona fide ,for the purpose of reconstruction.
We have no hesitation in agreeing with the learned Judge 's observation that the landlord must prove the reasonableness and bona fide nature of his requirement.
But, if the learned Judge intended to Iay down a proposition of law that under section 14 ( I ) (b) of the Madras Act, similar to section 21 ( 1) (j) of the Act a landlord cannot recover possession of the property for the purpose of re construction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous.
There is absolutely no justification for putting such a narrow interpretation on the clause in question.
Mr. Chagla further urged that before his client is evicted his, claim for compensation should have been considered by the Rent Controller.
It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings.
We may also state that a further contention regarding them validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed before us.
In the result, the appeal fails and is dismissed with costs.
The petitioner/appellant undertaken to vacate the premises within a month from today.
Y.P. Appeal dismissed.

summary/full:
Under section 21 (1) (j) of the Mysore Rent Control Act, 1961 the court may on an application order the recovery of possession of any premises in favour of the landlord, if "the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of enacting a new building in place of the premises sought to be demolished,".
The respondent landlord applied under section 21(1)(j) for eviction of the tenants appellants, claiming that the premises were reasonably and bona fide required by him for the immediate purpose of demolishing and erecting of a new building, that the premises were old and were not suitable for continued occupation.
The respondent claimed to have obtained the necessary licence and to have made all preparations for demolishing the existing., building and erecting new building.
The appellants tenants contested the claim.
The Rent Controller accepted the respondent landlord 's claim and ordered eviction, which in appeal, and further revision to the High Court was upheld.
In appeal to this Court for the appellant tenant, it was contended that unless the landlord was able to establish that the condition of the building was such that it required immediate demolition and reconstruction, no eviction of the tenant could be ordered under section 21 (1) (j).
Rejecting this contention and dismissing the appeal, HELD : The requirement contemplated under clause (j) of the proviso to sub section
(1) is that of the landlord and it does not have any reference to the condition of the building as such.
What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and such demolition is for the purpose of erecting a new building in the place of the old one.
No doubt, whether the landlord 's requirement is reasonable and bona fide has to be judged in the light of the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard.
[737 G, H] In considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord.
It is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.
[738 D] Neta Ram vs Jiwan Lal, [1962] Supp.
2 S.C.R. 623, referred to.
Mehsin Bhai vs Hale & Company, (1964) II M.L.J. 147, contra observation disapproved.