judgement:
Appeal No. 202 of 1952.
Appeal from the Judgment and Decree dated the 5th day of March, 1951 of the High Court of Judicature at Calcutta in Appeal from Original Decree No. 87 of 1949 arising out of the decree dated the 20th day of January, 1949 in Suit No. 94 of 1946 of the Court of 3rd Additional District Judge at 24 Parganas.
M.C. Setalvad, Attorney General for India, (Sukumar Ghose, with him), for the appellant.
Bankam Chandra Bannerjee and R. R. Biswas, for respondent No. 1. 1954.
December 2.
This appeal arises out of an application filed by the first respondent for probate of a will dated 28 11 1943 executed by one Bhabesh Charan Das Gupta.
The testator died on 27 10 1944 leaving him surviving two sons, Paresh Charan Das (the first respondent), Naresh Charan Das 1037 (the appellant), and a daughter, Indira (the second respondent.
The estate consisted of a sixth share in some ancestral lands at Matta in the District of Dacca, and a house No. 50, South End Park, Calcutta, built by the testator on a site purchased by him.
By his will) he directed that a legacy of Rs. 10 per mensem should be paid to his younger son, the appellant, for the period of his life; that his daughter should be entitled to a life estate in five specified rooms in the house to be enjoyed either personally by her and the members of the family, or by leasing them to others; that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals named, and that subject to the legacies aforesaid, the first respondent should take the estate, perform the sraddha, and pay one sixth of the expenses for the worship of the deity installed in the ancestral house.
The first respondent who was the sole executor under the will, applied in due course for probate thereof.
The appellant entered caveat, and thereupon, the application was registered as a suit.
He then filed a written statement, and on that, the following issues were framed: (1)"Was the Will in question lawfully and validly executed and attested? (2)Had the testator testamentary capacity at the time of the execution of the Will? (3)Was the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta?" The Additional District Judge of the 24 Parganas who tried the suit held in favour of the first respondent on issues 1 and 2, but against him on issue 3, and in the result, probate was refused.
The first respondent took the matter in appeal to the High Court, and that was heard by G. N. Das and section C. Lahiri, JJ.
Before them, the appellant did not contest the correctness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will.
The two contentions that were pressed by him were (1) that the will in question was executed by the testator 1038 under undue influence of the first respondent, and (2) that it was not validly attested, and was therefore invalid.
On both the questions, the learned Judges held in favour of the first respondent, and accordingly allowed the appeal, and directed the grant of probate.
Against this judgment, the caveator prefers this appeal, and contends that the findings of the Court below on both the points are erroneous.
The main question that arises for our decision is whether the will in question was executed under the undue influence of the first respondent.
"When once it has been proved", observed Lord Cranworth in Boyse vs Rossborough(1) "that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it".
Vide also Craig vs Lamoureux(2).
In the present case, it is not in dispute that the testator executed the will in question, and that he had the requisite mental capacity at that time.
The burden, therefore, is on the appellant to establish that the will was the result of undue influence brought to bear on him by the first respondent.
The facts so far as they are material for this issue, may now be stated, The testator was a police officer and retired in 1927 as Deputy Superintendent of Police.
Paresh Charan, the elder son, was married in 1925, and lived all along with his parents with his wife and children.
Nirmala, the wife of the testator, died in 1929, and thereafter it was the wife of Paresh Charan that was maintaining the home.
Naresh Charan studied up to I.A., but in 1920 discontinued his studies and got into employment in the workshop of Tata & Co., at Jamshedpur on a petty salary; and the evidence is that thereafter he was practically living apart from the family.
In 1928 he married one Shantimayi, who was a widow having some children by her first husband.
She belonged to the Kayastha caste, whereas Naresh Charan belonged to the Baid caste.
The testator was strongly opposed to this (1) [1857] 6 H.L.O. 2: ; (2) 1039 intercaste marriage, and did his best to stop it but without success.
The correspondence that followed between the appellant and his father during this period clearly shows that the father felt very sore over this alliance, and wrote that it could not pain him even if his son died.
With this background, we may turn to the will.
The relevant recitals therein are as follows: "My younger son Sri Naresh Charan Das Gupta is behaving badly with me and without ray knowledge and consent be has married a girl of a different caste and she has given birth to two female children and one male child.
In these circumstances my said son Sri Naresh Charan Das Gupta and his son Sreeman Arun Gupta and the two daughters or any other son or daughter who may be born to him, will not be entitled to perform my sradh or to offer me Pindas.
For all these reasons I deprive my second son Sri Naresh Charan and his son Sreeman Arun Gupta and his two daughters and any other sons or daughters who may be born to him as well as Naresh 's wife Sreemati Santi of inheritance from me and from all my movable and immovable properties, ancestral as well as self acquired.
They shall not get any share or interest or possession in any of my aforesaid properties".
It is not disputed that these recitals accord with what the testator had expressed in the correspondence at the time of the marriage and for some years thereafter.
But it is argued that since then, more than a decade had passed before the will was executed, and that during this period the natural affection of the testator for his son had re asserted itself, that he had forgiven and forgotten the past, and that when the will was actually executed, the recitals above extracted did not correctly reflect the then mind of the testator.
We have been taken through the entire correspondence that passed between the testator and the appellant and the members of his family.
It shows that the testator was solicitous about the welfare of the appellant, and was enquiring about his health and 1040 sending him on occasions medicines; that he was affectionately disposed towards his children and was sending them presents of cloth; that latterly he had so far modified his attitude towards the wife of the appellant as to invite her and her children to Calcutta; that he himself stayed with them for some time at Jamshedpur and was giving advice to the appellant on matters connected with his employment.
It was argued that there was thus a gradual change of heart on the part of the father towards the appellant and the members of his family, that.
the recitals in the will could not be reconciled with this change of attitude, and that they must have been inspired by the first respondent.
We are unable to agree.
It is one thing for a father who feels that he has been wronged by a disobedient son to wish him well in life, and quite another thing to give him any of his properties.
In the whole of the correspondence which has been read to us, there is nothing to suggest that he wanted the appellant to share in the estate.
On the other hand, there are indications that even when the appellant was in financial difficulties, the testator considered that he was under no sort of obligation to come to his help.
Vide Exs.
5(c) and C(1).
It may be mentioned that after making the will on 28 11 1943 the testator continued to correspond with the appellant and the members of his family precisely in the same terms as before.
Vide Exs.
B(2), C(4) and A(10).
That shows that the two currents of natural affection and settlement of properties flowed in distinct channels,, and that the change in the course of the one had no effect on the direction of the other.
The testator, it is clear from the correspondence, was a man of strong will, determined and unshakable in his resolutions.
He wrote of himself in exhibit C(34) that "I am one third conservative, one third liberal and one third autocratic".
He was very solicitous about the family prestige and reputation, and felt deeply hurt when his son entered into a marriage which was viewed by his community with disfavour.
In exhibit 6(c) he wrote, "You broke our hearts for a woman who has no right to be in my house", And 1041 as late as 25 12 1941 he wrote to the appellant that if his wife and children came to live with him "they must prepare themselves to meet uncalled for taunts and unpleasant enquiries which may be made by our near and distant village relations in our society who will come to see us".
(Vide Exhibit C(37)).
There cannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter caste marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to the last.
It was also argued that the dispositions in the will were unnatural in that the appellant had been practically disinherited and his children altogether ignored.
This by itself cannot lead to any inference of undue influence on the part of the first respondent.
Having regard to the character of the testator and his feelings in the matter it is not a matter for surprise that he should have cut off the appellant with a small legacy.
It must also be mentioned that the net value of the assets as given in the probate petition is Rs. 23,865 10 9, and if the other legacies and charges are deducted, what was bequeathed to the first respondent cannot be said to be very considerable.
It also appears that at that time his salary was Rs. 60 per mensem and that he had a number of children, whereas the appellant is stated to have had a basic salary of Rs. 250 per mensem then.
The first respondent, his wife and children have all along been dependents of the testat or, whereas the appellant had lived apart from him from 1920.
And it is not unnatural for the testator so to order the distribution of his estate as to secure the continuance of the existing state of affairs.
The terms of the will, therefore, cannot be relied on as intrinsic evidence of undue influence, as contended for by the appellant.
Then there is the evidence of Indira, the daughter of the testator, which was taken on commission.
She deposed that the testator bad told her that there were troubles in the house, that the elder son had objection to stay with the younger one, "because if they live together, there will be social trouble regard 1042 ing his daughters marriage", and that he therefore wanted to make a will.
She went on to add.
that the father subsequently wanted to alter the will and sent for her repeatedly for discussions, but that she generally excused herself, because she did not like to intervene in the matter, and that on those occasions, he told her, "At present this will stand, but I want to modify it in future".
Indira also deposed that the first respondent and his wife used to tell the testator that there was no change in the conduct of the appellant, that he was extravagant in his habits and incurred debts, and that he had taken away some articles.
We do not consider that it is safe to act on this evidence.
It is clear from Exhibit I that Indira and her husband had taken sides with the appellant as against the first respondent, and wrote to him that in spite of the will the appellant "should have his share as early as possible in order to avoid further complication", though it may be noted that they insisted on their rights under the will.
Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house.
We are unable to see any undue influence in this.
The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence.
It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as "undue".
It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour.
And if the testator retains his mental capacity, and there is no element of fraud or coercion it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories the will cannot be attacked on the ground of 1043 undue influence.
The law was thus stated by Lord Penzance in Hall vs Hall(1): "But all influences are not unlawful.
Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate and may be fairly pressed on a testator.
On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.
Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator 's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened.
In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else 's".
Section 61 of the Indian Succession Act (Act XXXIX of 1925) enacts that, "A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void".
Illustration (vii) to the section is very instructive.
and is as follows: "A, being in such a state of health as to be capable of exercising his own judgment and volition B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport.
A, in consequence of the intercession and persuasion but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B".
(1) (1868) L.R. 1 P. & D. 481 & 482.
134 1044 Even if we accept the evidence of Indira, the case would, on the facts, fall within this Illustration, It is not disputed that the testator was in full possession of his mental faculties.
There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition.
On the other hand, it is proved that.
the first respondent had no act or part in the preparation, execution, or registration of the will.
It is a holograph will, and the evidence of P. Ws.
I and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence of P.W. 1.
The document was presented for registration by the testator, and be kept it with himself, and it was taken Out of his cash box after his death.
He lived for nearly a year after the execution of the will, and even on the evidence of Indira, be was often thinking of it, and discussing it, but declared that it should stand.
The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations.
It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months.
No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of undue influence.
It was also argued for the appellant that there was no proof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void.
I and 2 are the two attestors, and they stated in examination in chief that the testator signed the will in their presence, and that they attested his signature.
They did not add that they signed the will in the presence of the testator.
Now, the contention is that in the absence of such evidence it must be held that there was no due attestation.
Both the Courts below have 1045 held against the appellant on this contention.
The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross examined on the question of attestation, it could properly be inferred that there was due attestation.
It cannot be laid down as a matter of law that because the witnesses did not state in examination in chief that they signed the will in the presence of the testator, there was no due attestation.
It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator.
This is a pure question of fact depending on appreciation of evidence.
The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted.
Indeed, it is stated in the judgment of the Additional District Judge that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit".
This contention of the appellant must also be rejected.
In the result, the decision of the High Court is confirmed, and this appeal is dismissed, but in the circumstances, without costs.
Appeal dismissed.

summary/full:
When once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the person who alleges it.
It is well settled that it is not every influence which is brought to bear on a testator that can be characterised as "undue".
It is open to a person to plead his cause before the testator and to persuade him to make a disposition in his favour.
And if the testator 133 1036 retains his mental capacity and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence.
All influences are not unlawful.
Persuasion, appeals to the affections or ties of mankind, to a sentiment of gratitude for past services or pity for future destitution, or the like, these are all legitimate and may be fairly pressed on a testator.
On the other hand pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.
It cannot be laid down as a matter of law that because the attesting witnesses did not state in examination in chief that they signed the will in the presence of the testator, there was no due attestation as required by section 63 of the Indian Succession Act.
It is a pure question of fact depending on the appreciation of evidence and the circumstances of each case whether the attesting witnesses signed in the presence of the testator.
Boyse vs Rossborough ([1857] ; ; , Craig vs Lamoureux and Hall vs Hall ([1868] L.R. I P. & D. 481), referred to.


judgement:
Appeals Nos. 1837 and 1838 of 1968.
369 Appeals from the judgment and order dated February 10, 1965 and July 17, 1967 of the Calcutta High Court in Income tax Reference Nos. 274 of 1961 and 114 of 1963 respectively.
D. Pal, R. K. Choudhry, N. R. Khaitan, Krishna Sen and B. P. Maheshwari, for the appellant (in both the appeals).
B. Sen, R. N. Sachthey and B. D. Sharma, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Grover, J.
These appeals by certificate from a judgment of the Calcutta High Court arise out of Income Tax References in which the main point involved was whether the assessee company could be regarded as one in which the public are substantially interested within the meaning of the Explanation in section 23A of the Indian Income Tax Act,1922, hereinafter called the "Act".
The appeals relate to the assessment years 1952 53 and 1954 55.
The assessee is a public company incorporated under the Indian Companies Act, 1913.
Article 37 of its Articles of ' Association provided as follows "The Directors may at any time in their absolute and uncontrolled discretion and without assigning any reason decline to register any proposed transfer of shares.
" The Income Tax Officer held that the assessee was a company in which the public were not substantially interested within the meaning of the Explanation in section 23A of the Act.
Accordingly he applied the provisions of that section.
The assessee appealed to, the Appellate Assistant Commissioner.
The appeal relating to the assessment year 1952 53 was dismissed but with regard to the subsequent year it was alqowed.
The Appellate Tribunal upheld the contention that Article 37 of its Articles of Association did not operate as a bar to the free transferability of the shares and therefore it was a company in which the public were substantially interested within the meaning of the Explanation in section 23A of the Act.
Thereupon the Tribunal was moved by the Commissioner of Income tax for stating the case and referring the following question of law which was referred by it to the High Court in the case relating to the assessment year 1952 53 : "Whether on a true interpretation of Article 37 of the Articles of Association, the assessee Company can be regarded as one in which the public are substantially interested within the meaning of the third proviso to section 23A(1)".
3 7 0 A similar question was referred in the case relating to the assessment year 1954 55.
The High Court following a judgment of the same court in Commissioner of Income tax, West Bengal vs Tona Jute Co. Ltd.,(") answered the questions referred against the assessee and in favour of the Revenue.
In that case the Calcutta High Court had expressed the view that a public company whose Directors had absolute discretion to refuse to register the transfer of any share to any person whom it shall in their opinion be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public, within the meaning of the Explanation in section 23A of the Act.
Section 23A of the Act confers power to assess companies to super tax on undistributed income in certain cases.
Sub section (9) inter alia provides that nothing contained in the section shall :apply to any company in which the public are substantially interested.
Explanation (1) which was so renumbered by section 7 of the Finance Act of 1957 to the extent it is material is as follows : "For the purposes of this section, a company shall be deemed to be a company in which the public are substantially interested." (a). . . . . (b) if it is not a private company as defined in the Indian Companies Act, 1913, (VII of 1913), and (i). . . . . . . (ii) the said shares were at any time during the previous year the subject of dealing in any recognised stock exchange in India or were freely transferable by the holder to other members of the public; and (iii). . . . .
The Calcutta High Court referred to the relevant provisions of the Indian Companies Act 1913 according to which unless the Article provided otherwise the shareholder had a free right to transfer his shares to whomsoever he liked.
But it was considered that where the Articles contained a power under which the Directors could decline to register any transfer of shares the Tight of free transfer was cut down by that Article and this affected the question of free transferability of the shares.
Moreover the (1) 371 transfer of shares was not complete until the registration of the name of the transferee and if such a registration could not be insisted on as a matter of right it could not be said that the shares were freely transferable.
The Madras High Court in East India Corporation Ltd. vs Commissioner of Income tax, Madras(1) and the Bombay High Court in Raghuvanshi Mills Ltd., vs Commissioner of Income tax, Bombay(1) took the contrary view and dissented from the opinion expressed in the Calcutta case that in the presence of an Article similar to Article 37 of the Articles of Association of the assessee the shares would not be freely transferable within the meaning of clause (ii) to Explanation 1 in section 23A (9) of the Act.
It may be mentioned that before its amendment, by the Finance Act 1955 the corresponding provision appeared in the Explanation in section 23A(1) after, the third proviso.
But instead of the word "were" the word "are" was employed.
The question, therefore, which has to be examined is whether the shares could be regarded as freely transferable to other members of the public, In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the word "transferable" : " "Transferable", ex facie, is not to be equated to "transferred".
The word imports a quality, a legal effect arising out of or inherent in the character and nature of the shares themselves.
This quality does not stand by itself, for the section says "are in fact freely transferable".
We have to give effect to each of these words, and if we did so, transferability is qualified by the fact which in the context, to out minds, means a factual tendency which is unrestricted and which ensures transferability.
In other words, we understand by the words "are in fact freely transferable" not that there should necessarily be actual transfers of shares; but a factual tendency towards free transfer of shares, subject, of course, to reasonable restrictions by holders to other members of the public." The Directors have certainly been given a discretion by Article 37 to decline to register any proposed transfer of shares but that does not mean that the shares cease to be transferable.
The said Article does not confer any uncontrolled or unrestricted discretion upon the Directors to refuse to register the transfer of shares in a given case.
In other words the Directors cannot act arbitrarily or capriciously.
It is well known that the power conferred by such an.
Article is of a fiduciary nature which has to be exercised by the (1) (2) 3 72 Directors in the best interests of the company for preventing any undesirable person becoming a member if that is likely to be prejudicial to the company.
It is a power which has to be reasonably exercised for protecting the interests of the company.
It cannot be assumed that the discretion conferred on the Directors will be abused for ulterior purposes.
The discretion which has been conferred for being exercised in the interest of the.company cannot take away the tendency of the free transferability of the shares in the absence of cogent material or other factors from which it can be inferred that the shares were not capable of being freely transferred.
Article 37 can by no stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another.
Free transferability of shares is a normal and common feature of limited companies.
Indeed there would hardly be any public company in the memorandum of articles of which an article similar to Article 37 will not be found.
This article appears even in the standard Articles of Association prescribed under the Companies Act itself.
The purposes, as has been noticed before, is only to give power to the Directors for declining to register the transfer of a share when the paramount interests of the company so require.
There may be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated the; element of free transferability.
In such cases it may be possible to hold that in fact the shares were not freely transferable.
But in the Pr sent case there is no evidence of the Directors having acted in the aforesaid manner nor is there any restriction in the other Articles of Association interfering with the free transfer of shares by one shareholder to another.
We are unable, therefore, to uphold the judgment of the Calcutta High Court that the mere existence of an article like Article 37 would affect the free trans ferability of the shares within the meaning of the Explanation.
In the result the appeals are allowed and the decision of the High Court is set aside.
The question referred in each case is answered in favour of the assessee and against the Revenue.
The assessee shall be entitled to one set of costs in this Court.
G.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The assessee was a public limited company.
, Under article 37 of its.
Articles of Association the Directors could at any time in their discretion and without assigning any reason decline to register any proposed transfer of shares.
The question in income tax proceedings relating to the assess ment years 1952 53 and 1954 55 was whether on a true interpretation of article 37 the assessee company could be regarded as one in which the public were substantially interested within the meaning of the third proviso to section 23A(1) of the Income tax Act, 1922.
In reference the High Court answered the question in favour of the revenue on the view that the shares of the company were not freely transferable and therefore it was not a company in which the public were substantially interested.
In the assessee 's appeal by special leave, HELD : Article 37 could not by any stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another.
Free transferability of shares is a normal and common feature ,of limited companies.
Indeed there would hardly be any public company in the memorandum of articles of which an article similar to article 37.
will not be found.
This article appears even in the standard Articles of Association prescribed under the Companies Act itself.
The purpose is ,only to give power to the Directors for declining to register the transfer of a share when the paramount interest of the company so require.
There may be cases where it can be shown that the Directors have been exercising the power very freely and have virtually eliminated the element of free transferability.
In such cases it may be possible to hold that in fact the shares were not freely transferable.
But in the present case there was no evidence of the Directors having acted in the aforesaid manner nor was there any restriction in the other Articles of Association interfering with the free transfer of shares by one shareholder to another.
, The High Court was therefore in error in holding that the mere existence of an article like article 37 would affect the free transferability of the shares within the meaning of the Explanation (1) to section 23A(9) of the Act.
[372 C F] East India Corporation Ltd. vs Commissioner of income tax, Mad? as, and Raghuvanshi Mills Ltd. vs Commissioner of Income tax, Bombay, , approved.
Commissioner of Income tax, West Bengal vs Tona litte Co. Ltd. 48 I.T.R. 902, disapproved.


judgement:
Appeal No. 1121 of 1970.
Appeal by special leave from the judgment and order dated ' April 24, 1969 of the Bombay High Court in Appeal No. 2 of 1967.
Niren Den, Attorney General, M. C. Bhandara, P. C Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain., for the appellants.
section V. Gupte, section J. Sarabjee, B. R. Agarwala and A. J. Rana,, for respondent No. 1.
Sharad Monohar and Urmila Sirur, for the interveners.
J. This is an appeal by special leave from an Order of the High Court of Bombay dated 24th April, 1969 in Appeal No. 2 of 1967, substantially confirming the order passed by a single Judge of that Court in Writ Petition No. 474 of 1965.
The appellants before this Court are the Bombay Municipal Corporation and the Municipal Commissioner of Bombay, and the respondents are the owners of 41 final plots Nos. 106 to 116 and 118 to 147 under the Bombay Town Planning Scheme, Santacruz VI.
The area under the Town Planning Scheme, with which we are now concerned, originally fell within the municipal limits of the Bandra Municipal Committee.
That Committee, by a resolution dated 15th June, 1948, declared its intention to frame a Town Planning Scheme under section 9(1) of the Town Planning Act, 1915.
Thereafter, the Municipal Committee was abolished and the area of that municipality was absorbed within the limits of the Bombay Municipal Corporation.
The Corporation, which.
for the purpose of the Act, now became the local authority.
applied to the Government, and on 7th May, 1951, the Government of Bombay sanctioned the making of the Scheme.
On 30th April, 1963, a draft scheme was, prepared and published as required by the Act and it was duly sanctioned by the Government on 6th May, 1954.
On 17th August, 1954, an Arbitrator was appointed to finalize the scheme and the Arbitrator formulated the final Scheme and published the same in the, Official Gazette, forwarding, at the same time, the Scheme to the President of the Tribunal appointed under section 32 of the Act.
In the meantime, the Town Planning Act, 1915 was replaced by the Town Planning Act, 1954 which came into force on 1st April, 1957.
Under section 90 the new Act, the final Scheme already formulated was adopted for continuance and implementation.
Finally, on 21st August, 1958, the final Scheme was sanctioned by the Government which directed that the Scheme should come into force from 1st January, 1959.
The Scheme, as already stated, was known as the Bombay Town Planning Scheme, Santacruz No. VI and covered an area .of about 160 acres divided into two parts by the Chodbunder Road which ran from south to north.
We are not concerned here with the western part.
We are concerned with the eastern part, the total area of which was about 54 acres.
A part of this area belonged to the N. J. Wadia Trust.
In a Trust Petition made to the High Court, a Receiver was appointed on 8th February.
1948 of this trust property.
It appears that unauthorised huts, sheds and stables had been built in this area and the whole of it 411 was full of slums, the removal of which was one of the objects of introducing the Town Planning Scheme.
As the Arbitrator has stated in his Final Scheme, : "The Final Scheme as now drawn up provides for the construction of new roads with necessary storm water drains on the sides of the roads, certain public sites within the area such as School, Playground, Market, Maternity Home etc.
The construction of new roads, the provision of public sites and the removal of slums will provide for the development of this part of the Suburb on proper lines.
" In pursuance of the Scheme, the part of land, which belonged to N. J. Wadia Trust and which was now in the possession of the Receiver, became a part of the Scheme and, under the Scheme, a number of final plots were allotted to the Receiver.
On 31st July, 1962, the Receiver transferred a total area of 69,625 sq.
yards comprised in 41 final plots being Nos. 106 to 116 and 118 to 147 to respondents 1 to 3 and one Cardi.
Cardi sold his plots in due course to respondents 4 and 5.
So, between the five respondents, they became the owners of the above 41 final plots.
As already noted, the Scheme came into force on 1st January, 1959 and, though, under the Scheme, a period of 2 to 3 years had been allowed for the purpose of implementing the Scheme, no action was taken by the Corporation, perhaps due to the resistance offered by the slum dwellers.
The respondents, from whom the betterment charges, etc. were being recovered by the Corporation, called upon the Corporation to implement the Scheme by removing slums, sheds and temporary structures and also to provide roads and drains as directed in the Scheme.
The Corporation, however, remained inactive and, hence, respondents 1 to 3 filed Writ Petition No. 474 of 1965 on the Original Side of the High Court on 13th October, 1965.By this petition, respondents 1 3 prayed to the Court : (1) to issue a writ of mandamus or a writ in the nature of mandamus against the appellants directing them to construct the roads and drains as indicated in the Town Planning Scheme and to complete the same for use within such time as may be fixed by the Court, and (2)to issue a writ of mandamus or any other appropriate writ directing the appellants to remove all the huts.
sheds, stables and temporary structures from the 41 plots referred to above.
412 The learned Judge held that, under the Town Planning Act and the Scheme, it was the primary responsibility of the Corporation, which was the local authority, to implement the Scheme and, accordingly, the writs as prayed were substantially granted.
In appeal, the Appellate Bench of the High Court confirmed the order of the learned Judge with only minor variations.
Hence, the present appeal.
The controversy between the parties has been narrowed down in this Court.
The learned Attorney General, who appeared on behalf of the appellants, did not dispute that, so far as the roads and drains are concerned, it was the primary obligation of the Municipal Corporation to provide the same in accordance with the Scheme.
He also agreed that, if there were any unauthorised structures, huts, sheds and the like on any part of the plots which vested in the Corporation for a public purpose, the same were liable to be removed by the Corporation.
His chief contention, however, is that the Corporation owed no duty to remove the un authorised structures situated in the private plots of the owners who, in his submission, were solely responsible to remove them.
In any event, he further submitted, since the petitioners and their predecessors had authorised these structures and collected rent from the owners or occupants of these structures, a writ of mandamus at their instance should not, in the discretion of the Court, be granted.
The point of substance in this appeal is whether the Munici pal Corporation, as the local authority under the Act owed a duty to remove the unauthorised structure, even though those structures were on private final plots of the respondents.
That the respondents could, by having recourse to law, eject the slum dwellers and remove the huts and structures would no, be a relevant consideration if, under the Act and the Scheme, the duty was imposed on the local authority.
The Scheme had been framed with a view to clear the area of slums.
In fact, Note 11 attached to the Redistribution Statement under the Scheme directs that "all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, shall be removed within one year from the date the Final Scheme comes into force.
Persons thus dishoused will be given a preference in the allotment of land or accommodation in Final Plot No. 16.
" We will have occasion to consider this Note No. 11 at a later stage; but what is to be noted now is that the slums were to be cleared and the dishoused persons were to be accommodated in final plot No. 16 which was specifically allotted to the Corporation.
Before turning to the provisions of the Act and the Scheme for the determination of the issue before us, it may be necessary 413 to note here that the writ issued by the learned single Judge with regard to these huts, sheds and structures was clarified in appeal by limiting the writ as follows: "that the respondents 1 and 2 (the present appellants) do remove within one year from today all unauthorised huts, sheds, stables and other temporary structures standing and lying on the petitioners ' (the present respondents) said forty one final plots.
" We asked Mr. Gupte, learned counsel for the respondents, as to what exactly was meant by the term "unauthorised" whether it meant not authorised by the owners of the plots or not authorised by the Municipal Corporation or something else.
He informed us that the relief that he really wanted was in terms of section 55 of the Act which gives the power to the local authority to remove, pull down or alter any building or other work which contravenes the Town Planning Scheme.
If any of the structures or huts and sheds, etc.
which were situated in these 41 plots did not contravene the Town Planning Scheme, he did not and could not ask for a writ of mandamus for the removal of the same.
In view of this submission, the controversy is further narrowed down and the only question.
with which we are now concerned, is whether the Corporation is bound under the law to remove such of the structures, sheds and huts situated in the respondents ' plots in so far as.
they contravene the Town Planning Scheme.
In our opinion, the Corporation is so bound.
It is not necessary to go through the several provisions of the Town Planning Act.
There can be no doubt that the Corporation, as the local authority, is wholly responsible for the preparation and implementation of every development plan.
The preamble shows that the Town Planning Act, 1954, which was intended to be a consolidating and amending Act relating to town planning, was enacted with a view to ensure that Town Planning Schemes are made in a proper manner and their execution is made effective.
It was, therefore, necessary to provide that the local authority shall prepare a development plan for the entire area within its jurisdiction.
By section 3 of the Act, the local authority is required to carry out a survey of the area within its jurisdiction within a certain time and publish a development plan.
In due course, such a development plan is sanctioned by the Government; but, in the meantime, by section 12 of the Act, stringent restrictions are placed on the property owners in the matter of development of or construction on their private properties as soon as the local authority declares its intention to prepare a development plan.
After the development plan is finally sanctioned by the Government, the next step is for the local authority to make one or more Town Planning Schemes as provided in section 18.
The 8 LI340Sup.
CI/71 414 rest or the Act is mostly concerned with the preparation of the Town Planning Schemes and section 2 9 (1) (a) provides that, after the local authority has declared its intention to make a scheme under section 22, no person shall, within the area included in the scheme, erect or proceed with any building or work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of a building, a compound wall or any drainage work or remove any earth, stone or material, or subdivide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission of the local authority.
These restrictions, though very stringent, are obviously in the interest of the preparation of the.
Town Planning Scheme, because, if structures come up when the scheme is being prepared, the whole object of town planning will be frustrated.
The Arbitrator appointed under the Scheme has to lay out the roads, the drains and make provision for public places such as gardens, hospitals and the like and, if private owners start erecting structures of more or less permanent nature, the cost of the Scheme might become prohibitive and the Scheme itself will flounder.
Such is the importance of the Final Scheme as sanctioned by the Government that, under section 51(3), the Town Planning Scheme has the same effect as if it were enacted in the Act.
The Scheme naturally deals with the disposition of the land in the whole area.
Titles are displaced and regulations are made with directions as to how the whole of the Scheme is to be implemented.
The Arbitrator appointed under the Scheme has to lay out enacted in the Act.
Against this background, we have to determine the question in issue before us.
The important provisions, bearing upon the controversy, are sections 53, 54 and 55 of the Act.
Section 53 provides : "On the day on which the final scheme comes into force, (a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer.
" It will be seen that all lands in the area which is subject to the Scheme, to whomsoever they might have originally belonged, 415 would absolutely vest in the local authority if, under the Scheme, the same are allotted to the local authority.
As a necessary corollary to this, all rights in the original plots of the private owners would determine and if, in the Scheme, reconstituted or final plots are allotted to them, the same shall become subject to the rights settled by the Town Planning Officer in the Final Scheme.
The original plots of one owner might completely disappear, being allotted to the local authority for a public purpose.
Such a private owner may be paid compensation or a reconstituted plot in some other place may be allotted to him.
This reconstituted plot may be also made subject to certain other rights in favour of others as determined by the Town Planning Officer.
In other cases, the original plot of the owner may be substantially cut down and he may be compensated elsewhere by being allotted a smaller or a bigger piece of land in a reconstituted plot.
The learned Attorney General pointed out that, so far as the present case is concerned, the final plots coincide with the original plots of the private owners.
That may be so; but that consideration is irrelevant for a proper construction of the statute.
It is inherent in every town planning scheme that titles are liable to be displaced and an owner may get a reconstituted plot which belonged, prior to the Final Scheme, to some other owner.
In such a case, if the original plot belonging to 'A ' was not encumbered by any.
unauthorised huts and 'A ' is allotted in the Scheme a reconstituted plot of another, encumbered or littered over with unauthorised sheds and huts, would it be just to say that 'A ', who is to be put into possession under the Scheme, of the reconstituted plot, should take legal action for the ejectment of the hutment dwellers ? For aught we know he may be non suited on the ground of limitation or adverse possession.
In any case, the Scheme will on the one hand, put an innocent owner to undeserved trouble and, on the other, not achieve the object of removing the hutment dwellers as speedily as possible, thus frustrating the very object of town planning.
It is not as if such a situation was not visualised by the Legislature, because the very next section, viz., section 54 gives ample powers to the local authority to do the needful.
That section says : "On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority.
" All that the local authority has to see for the purpose of section 54 is whether any person is occupying any land in disregard of the rights determined under the final scheme and, if he does so, he 416 is to be summarily evicted by the local authority.
Section 55 is more explicit on the question.
Sub section (1) is as follows: "(1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme (a)remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with; (b) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the local authority that delay in the execution of the work would prejudice the efficient operation of the scheme.
" Sub clause (a) of the sub section gives the local authority power to remove, pull down or alter any building or other work in the whole of the area included in the scheme if such building or work contravenes the scheme, or if, in the erection or carrying out of the building or work, the provision of the scheme has not been complied with.
In short, every building or work, which is in contravention of the Town Planning Scheme, wherever it may be in the whole of the area under the Scheme, could be removed pulled down or altered by the local authority which alone is named as the authority for that purpose.
For example, the Scheme in this case, by its Note 11, requires that all huts, sheds, stables and such other temporary structures, which do not conform with the Scheme, are liable to be removed within one year of the Scheme which is regarded under section 51(3) as part of the Act.
If the owner or occupant of the temporary structure does not remove the structure within one year, the local authority is empowered to do that.
Sub clause (b) takes care of any work which, under the Scheme, any private person is liable to execute in a certain time.
If there is delay in the execution of the work, the local authority is given the power to execute the work.
The question then would arise : at whose cost this work is to be executed ? For that, provision is made in sub section
(2) which is as follows: "(2) Any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act.
" 417 The expenses incurred by the local authority in this connection are recoverable from the person in default, viz., the person indicated in the Scheme and who has defaulted in executing the work.
To make sure that the expenses are recovered, sub .S. (2) makes them recoverable not merely from the p erson in default, but also from the owner of the plot.
Disputes are likely to arise whether any building or work contravenes a Town Planning Scheme and, so, provision is made for the same in sub section (3) which is as follows : " (3) If any question arises as to whether any building or work contravenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, it shall be referred to the State Government ' or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be shall be final and conclusive and binding on all persons.
" It will, thus, be seen that section 55 provides a self contained code by which buildings and works situated in the whole of the area under the Scheme are liable to be removed or pulled down by the local authority if those buildings or works contravene the Town Planning Scheme.
A proper implementation of the Scheme would undoubtedly entail considerable cost, but provision for the same is made in Chapter VIII of the Act, section 66 of which provides for the recovery of what are commonly known as betterment charges.
The costs of the scheme are to be met wholly or in part by a contribution to be levied by the local authority for each plot included in the Final Scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer.
The whole scheme or the Act, therefore, and especially sections 53 to 55 leave no doubt that it is the primary duty of the local authority to remove all such buildings and works in the whole of the area which contravene the Town Planning Scheme.
The Scheme and the regulations made thereunder must be read as supplemental to the Act and, when that is done, there is no room for any doubt whatsoever that the local authority is entirely responsible for removing the huts, sheds, stables and other temporary structures which contravene the Town Planning Scheme.
The Scheme gives a statement of works to be constructed under the Scheme which comprises a number of roads and the drainage system.
The Scheme then specifies which final plots under the Scheme are reserved for public or municipal purposes.
In the section dealing with the regulations controlling the development of the area under the Scheme, the various final plots are 418 mentioned and directions have been given as to how they are to be utilised.
Regulation 6 is as follows : "No hut or shed whether for residential user or otherwise, or temporary moveable shops on wheels or such other temporary structures shall be allowed within the area of the Scheme.
" It is possible to construe this regulation as prospective in operation, because regulation 9 provides that any person contravening any of the aforesaid regulations or any of the provisions of the Scheme is liable to be prosecuted and fined.
As a part of the Scheme, there is a Redistribution and Valuation Statement which shows which are the original plots, who were the owners thereof, whether those plots were encumbered or leased out, who the mortgagees and lessees were, what is the number of the reconstituted or the final plot allotted to such owners, what contributions have to be made by the owners and what additions or deductions are to be taken into account while deciding the contributions.
In the case of some of the final plots, certain rights are given and liabilities imposed and, in suitable cases, compensation also is directed to be paid.
And, then, to this Redistribution and Valuation Statement, eleven Notes are appended which are important Note 1 says that all rights of mortgagors or mortgagees if any, existing in the original plots are transferred to their corresponding final plots.
Note 2 deals with the rights of lessors and lessees in the original plots.
By Note 3, all rights of passage hitherto existing are extinguished.
By Note 4, agreements in respect of original plots are transferred to the final plots.
By Note 5, the tenures of all original plots are transferred to the corresponding final plots.
Note 6 permits the original plot owners to remove their detachable material on the plot if they are deprived of the same.
They are required to remove their wire fencing, compound wall, sheds, huts or other structures.
They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme.
This permission under Note 6 has been given not because the local authority has no power to remove wire fencing, huts, sheds, etc.; that power is there as already shown under section 55.
But this is a concession made in favour of the owner.
Since the owner is required to remove himself from this plot, he is permitted to take away whatever material he could easily remove.
And, then, Note 11, to which reference has already been made, provides that all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, are required to be removed within one year from the date the final Scheme comes into force.
The Note refers not merely to huts, 419 sheds, stables which do not conform to the regulations of the Scheme, but also to all huts, sheds, stables and such other temporary Structures.
Whosoever the owner or the occupant of the same might be, he is required to remove the same within one year from the date the Final Scheme comes into force.
This is an important regulatory provision which has the effect as if enacted in the Act.
If the owner or the occupant of these huts, sheds and stables does not remove the same within one year from the date this final Scheme comes into force, he would be contravening the provisions of the Scheme and, thereupon, the local authority will have the power under section 5 5 (1) (a) to remove or pull down these huts, sheds, stables, etc.
Note 11 has taken due note of the fact that, if the huts, sheds, stables, etc. are demolished, the owners or occupants thereof will become dishoused.
Hence, further provision is made that persons thus dishoused will be given preference in the allotment of land or accommodation in Final Plot No. 16 allotted to the Corporation.
In other words, it is implicit in this Note that the Corporation may not hesitate to pull down or remove these huts and sheds, etc., because provision is already made for allotment of land in the Corporation 's Plot.
The Note, therefore, indirectly establishes that it is the primary duty of the Corporation as the local authority to remove all offending huts, sheds, stables and temporary structures in the whole area under the Scheme and not merely from those areas which are allotted to the Corporation under the Scheme.
Our attention was invited by the learned Attorney General to the Maharashtra Regional and Town Planning Act, 1966 which came into force on 11 th January, 1967.
The Act came into force when the present litigation was pending in the High Court; but it does not appear that any reference was made to the provisions of that Act.
It is a more comprehensive legislation with regard to development and planning than the Bombay Town Planning Act, 1954 to the provisions of which we have already made a reference.
By section 165(1) of the Maharashtra Regional and Town Planning Act, 1966, the Bombay Town Planning Act, 1954 is repealed; but, by virtue of sub section (2) of section 165, all Schemes finalised under the Bombay Town Planning Act, 1954 are deemed to have been framed under the corresponding provisions of this Act and the provisions of this Act shall have effect in relation thereto.
The more important provisions of the Bombay Town Planning Act, 1954, to which a reference has been made by us above.
were sections 53, 54 and 55.
The corresponding provisions in the new Act are sections 88, 89 and 90.
Section 53 consisted of two clauses (a) and (b).
They are the same as the first two clauses (a) and (b) of the corresponding section 88.
One% more clause (c) is added which provides that the Planning Authority shall hand over possession of the final plots to the owners to 420 whom they are allotted in the final Scheme.
The Planning Authority is the same as the local authority under the Bombay Town Planning Act, 1954 in the present case, the Bombay Municipal Corporation.
There was no specific provision in section 53 directing the local authority to hand over possession of the , 'final plots; but, in our opinion, that was implicit in the Scheme when the original plots were reconstituted and the reconstituted plots were allotted to the owners of the original plots.
Clause (c) of section 88, therefore, merely clarifies what was implicit in section 53 of the old Act.
Section 54 of the old Act corresponds to sub section
(1) of section 89 of the new Act.
Sub section
(2) of section 89 is a new provision which makes it obligatory upon the Commissioner of Police and the District Magistrate to assist the Planning Authority in evicting per sons from the final plots when there is unlawful opposition to the same.
Section 55 of the old Act corresponds to section 90 of the new Act and is practically the same in content.
In our opinion, therefore, there is nothing in the new Act which requires us.
to reconsider the above finding.
It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers.
Since development and planning is primarily for the benefit of the public, the, Corporation is under an obligation to perform its duty in accordance with the provisions of the Act.
It has, been long held that, where a statute imposes a duty the performance or non performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsbury 's Laws of England, Third Edition, Vol.
II, p. 90).
It was, however, contended by the learned Attorny General that, after all, a writ of mandamus is not a writ of course or a writ of right but is, as a rule, a matter for the discretion of the court.
That is undoubtedly the case.
It is pointed out by Lord Hatherley in The Queen vs The Church Wardens of All Saints, Wigan and Others(1), that upon a prerogative writ there may arise many matters of discretion which may induce the Judges to withhold the grant of it matters connected with delay, or possibly with the conduct of the parties; but, as further pointed out by his Lordship, when the Judges have exercised their discretion in directing that which is in itself lawful to be done, no other Court can question that discretion in so directing.
In the present case, the High (1) 421 Court has exercised its discretion in directing the issue of the writ and this Court, in an appeal by special leave, will not ordinarily question that discretion.
In The Queen vs Garland and Another(1) which was cited by the learned Attorney General before us, mandamus was refused practically on the ground that the petitioners therein had not come before the Court with clean hands.
In that case, the trustee, , proved the will of the testator, but not claim themselves to be admitted to the copyholds, though they were bound to do so, and called upon the lord of the manor to admit the infant heir by his guardians.
The lord refused.
If the trustees had done their duty by admitting to the copyholds, the lord would have been entitled to a double fine instead of a single fine on the admittance of the heir.
In these circumstances, the Court refused a mandamus to compel the lord to admit the heir as, in the opinion of the Court, the effect of granting it would be to enable the trustees to evade payment of a double fine, and to commit a breach of trust by not acquiring themselves the legal estate in the copyholds.
Nothing of that nature to disqualify the respondents in this case for a writ in their favour has been pointed out to us.
The only submission of the learned Attorney General is that so far as the huts, sheds, etc., which are within the final plots of the respondents are concerned, they must be 'Presumed to be therewith the permission of the respondents or their predecessors in title, specially when it is known that some fee, compensation or rent was recovered by them from the owners or occupants of these huts and sheds.
It is not the case that the petitioners, while, on the one hand, asking for a mandamus against the Corporation, are resisting the enforcement of the Scheme through the owners and occupants of the slums on the other.
If the owners of these final plots merely recovered some amounts from the hutment dwellers by way of compensation or rent, that act cannot be regarded as importing any disqualification for the purposes of mandamus.
After all, their ' land was being used by others and, perhaps, the respondents are also liable to pay local taxes.
We have not been shown one provision in the whole of the Act which requires the owners of the plots to take any action against the hutment dwellers.
The Scheme came into force in 1959 and it is an admitted fact that, till 1964, nothing at all was done by the Corporation to implement the Scheme.
The respondents served notices on the Corporation to enforce the Scheme, but, for one reason or the other, the Corporation merely stalled effective action.
We do not, therefore, think any adequate reasons have been given for refusing the writ.
In the result, the appeal is liable to be dismissed with only the following modification in the Appellate Court 's Order: (1) 422 For the following words: "that the respondents 1 and 2 do remove within one year from today all unauthorised huts, sheds, stables and other temporary structures standing and lying on the petitioners ' said forty one final plots" the following should be substituted : "that the respondents 1 and 2 do remove within one year from today all such huts, sheds, stables and other temporary structures standing or lying on the petitioners ' said forty one final plots as contravene the Scheme or in the erection or carrying out of which any provision of the Scheme has not been complied with.
" Subject to this modification in the Order, the appeal is dismissed with costs.
Since a stay had been granted by this Court, it would be necessary to allow reasonable time for compliance by the appellants.
The periods already given by the trial Court, as modified by the Appellate Court, shall be counted from the date of this judgment.
V.P.S. Appeal dismissed.

summary/full:
In August 1958, the State Government sanctioned a final town planning scheme The Bombay Town Planning Scheme, Santa Cruz, No. VI and directed that the scheme should come into force from 1st January 1959.
As part of the scheme there was a Redistribution and Valuation Statement and to the Statement some Notes were appended.
Note 11 provided that 'all huts, sheds, stables and Such other temporary structures including those which do not conform to the regulations of the scheme are required to be removed within one year from the date the final scheme comes into force. ' In pursuance of the scheme plots were allotted, Ind the respondents became the owners of certain plots.
Huts, sheds and stables had been built on those plots by slum dwellers.
, Since the appellant Corporation took no action for implementing the scheme, the respondents, from whom betterment charges were being recovered by the appellant, called upon the appellant to implement it by removing the Slums, etc., and to provide roads and drains as directed in the scheme.
The appellant however, remained inactive, and the respondents filed a petition for the issue of a mandamus to the appellant and the High Court allowed the petition.
In appeal to this Court, on the questions : (1) Whether the appellant was bound in law to remove the structures out the private plots of the respondents in so far as they contravened the Town Planning Scheme, and (2)whether a writ of mandamus could issue at the instance of the respondents when they had collected rents from the Occupants of the hut ments, etc.
HELD : (1) Under section 51(3) of the Town Planning Act, 1954, the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act.
The scheme and its regulations must, therefore.
be read as supplemental to the Act.
, Under section 53, all rights in the original plots of the private owners would determine, and if, in the scheme, reconstituted or final plots are allotted to them, they shall become subject to the rights settled by the Town Planning Officer in the final Scheme.
The fact that the final plots coincided with the original plots of the) private owners would not make any difference.
Under section 54 the local authority has to see whether any person is occupying any land in disregard of the rights determined under the scheme, and if he does so, he is to be summarily evicted by the local authority.
Under section 55(1)(a) every building ,or work which is in contravention of the town planning scheme, wherever it may be in the area under the scheme, Could be removed, Pulled down ,or altered by the local authority which alone is named as the authority for that purpose.
[414 D E; 415 A B, C D. H; 416 F F; 417 G] 409 In the present case, note 11 refers not merely to huts, sheds, stables which do not conform to the regulations of the scheme, but also to all huts, sheds, stables and such other temporary structures; and whosoever the owner or occupant may be, he is required to remove it within one year from the date the final scheme came into force.
Hence, if the owner or occupant did not so remove he would be contravening the provisions of the scheme and thereupon the local authority will have the power under s.55 (1) (a) to remove or pull them down.
The note takes note of the fact that the occupants of the hutments will be dishoused and makes provision for allotment of land to such dishoused persons.
B C] Therefore, it is the primary duty of the Corporation as the local authority to remove all offending huts, etc., in the whole area under the scheme and not merely from those areas which are allotted to the Corporation.
That the respondent could, by having recourse to law, eject the slum dwellers and remove their huts would not be a relevant consideration since the duty is imposed by the Act on the appellant.
Further, there is no provision in the Act which requires owners of the plots to, take action against the hutment dwellers.
[419 D E; 421 F G] The Maharashtra Regional and Town Planning Act.
1966, which came in to force during the pendency of the petition in the High Court has provisions corresponding to the 1954 Act which are practically of the same content.
Hence the position is the same under the 1966 Act also.
[419 E F, G H; 420 C D] (2) Since development and planning is primarily for the benefit of public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act.
A mandamus may hence be, issued to the appellant ordering that to be done which the statute requires to be done.
[420 E F] In the present case, the High Court exercised its discretion in directing the issue of the writ and this Court, in appeal by special leave, will not ordinarily question that discretion.
The mere fact that the owners of the plots received some amounts from the hutment dwellers by way of compensation or rent would not import any disqualification for issuing a mandamus at their instance.
[421 A, F] Queen vs The Church Wardens of All Saints, Wigan, and Queen vs Garland, , referred to.


judgement:
Appeals Nos.
and 1962 of 1968 and 1075 of 1971.
Appeals by certificate/special leave from the judgments and orders dated August 18, 1967 and May 7, 1970 of the Calcutta High Court in Matters Nos. 298 of 1963 and 69 of 1962.
section C. Manchanda, R. N. Sachthey, B. D. Sharma and section P. Nayar, for the appellant (in all that appeals).
B. Sen, N. R. Khaitan, B. P. Maheshwari and O. P. Khaitan, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Hegde, J.
Civil Appeals Nos.
1691 1692 of 1968 are by certificate and Civil Appeal No. 1075 of 1971 is by special leave.
These appeals are brought by the Commissioner of Wealth Tax, West Bengal.
In all these appeals we are dealing with the case of the same assessee, namely Aluminum Corporation Ltd. The relevant assessment years are 1957 58, 1958 59 and 1959 60 and the material valuation dates are 31 3 1957, 31 3 1958 and 31 3 1959.
So far as the assessment of the assessee for the assessment year 1957 58 is concerned the matter had come up to this Court on an earlier occasion.
This Court remanded the case to the High Court to decide the case afresh, if necessary after reframing the first question in the light of the principles enunciated by this Court in the order of remand see Commissioner of Wealth Tax, West Bengal vs Aluminum Corporation Ltd.(1) The High Court after expressing doubts about the competence of this Court to remand the case brought to this Court under the Provisions of the Wealth 'Tax Act has answered the first question in favour of the Revenue.
So far as the second question is concerned it has answered, the same in favour of the assessee.
As against that order the Department has brought Civil Appeal No. 1075 of 1971.
The other two appeals relate to the assessment of the assessee for the assessment years 1958 59 and 1959 60.
Here, the High Court has answered the first question referred to it in favour of the assessee and did not answer the second question.
The material facts in all these three appeals are more or less similar and for deciding the questions of law arising for decision, it is sufficient if we set out the facts as set out in the Statement (1) 486 of the case submitted by the Tribunal to the High Court along with the questions of law arising for decision in respect of the ,assessment of the assessee for the assessment years 1958 59 and 1959 60.
From that Statement we get the following facts : The assessee company 's fixed assets namely, land, buildings, plant and machinery were valued at Rs. 2,19,982/ , Rs. 36,13,906/ and Rs. 93,78,868/ respectively as on 31 3 1955.
This valuation did not take into account a depreciation for the year ending 31 3 1955 in respect of buildings, plant and machinery.
A year later i.e. on 31 3 1956 the same assets were valued at Rs. 4,99,340/ , Rs. 1,08,40,840/ and Rs. 1,89,23,449/This valuation was also without taking into account depreciation for the year ending 31 3 1956 in respect of buildings, plant and machinery.
The increase in the value of these assets, after making allowance for all additions made to the assets, was due to the revaluation of the assets made by the company before 31 3 56.
The increase in value on account of revaluation was to the tune of Rs. 2,83,871/ , Rs. 72,31,204/ and Rs. 98,67,481/ in the case of land, buildings and machinery respectively.
The Directors of the company in their annual report for the year ended 31 3 1956 noted that these assets had been revalued so as to indicate a true picture of their value and that evaluators had given due consideration to depreciation which the buildings, plant and machinery had been already subjected to.
A corresponding capital reserve of an amount of Rs. 1,73,82,556/ was created against ,the increase in the value of the assets.
The increase in the, value of assets effected before 31 3 1956 was carried over to 31 3 1958 and 31 3 59, the relevant valuation dates and the capital reserve ,aforesaid continued to remain unaltered.
The company in submitting its return of wealth tax as at the relev ant valuation dates claimed before the Wealth tax Officer that its lands, buildings and machinery should be valued according to the written down value as per income tax records after allowing depreciation according to the Income tax Act.
According to the company the value of these assets should be respectively, Rs. 2,26,786/ Rs. 12,38,109/ and Rs. 11,46,979/ as at 31 3 1958 and Rs. 2,28,188/ , Rs. 13,64,198/ and Rs. 9,16,626/ as at 31 3 1959.
These written down values were determined on the basis of the original cost as it stood before the assets were revalued in 1955 56.
The Wealth tax Officer in including these assets in the net wealth of the company, however, took the value thereof to be Rs. 5,10,657/ , Rs. 1,02, 53,392/ and Rs. 1,71,24,711/ as at 31 3 1958 and Rs. 5,12,059/ , Rs. 1,02,71,383/ and Rs. 1,65,02,524/ as at 31 3 1959 as shown 'in the company 's balance sheets as at 31 3 1958 and 31 3 1959. 'The Wealth tax Officer was of the view that the valuation of the 487 assets having been made under section 7 (2) of the Wealth Tax Act, there was no need to analyse individually the value of particular assets.
He also took the view that the value of the assets after revaluation was the correct one.
He rejected the request of the company to make an allowance for the wear and tear of the assets even on the basis of the revised values for the period between the date of the revaluation of the assets and the Wealth tax valuation dates.
The Appellate Assistant Commissioner of Wealth tax disagreed with the Wealth tax Officer and allowed the assessee 's appeal holding that the value of the block assets should be taken to be their write down value as per, the income tax records and not the value shown by the assessee in its balance sheets.
The Department appealed to the Tribunal against the order of the Appellate Assistant Commissioner.
The Tribunal allowed the appeal partially.
It upheld the action of the Wealth tax Officer in determining the value of the fixed assets on the basis of the values shown in the balance sheets of the company, but it, however, held that the assessee was entitled to an allowance in respect of these assets on account of wear and tear during the period subsequent to the revaluation.
Thereafter at the instance of the assessee as well as the Commissioner, the Tribunal stated a case and submitted the following questions seeking the opinion of the High Court.
(1) Whether on the facts and in the circumstances of the case, in determining the net value of the assets of the assessee company under section 7(2) of the Wealth tax Act, the value of the company 's fixed assets as shown in its balance sheet as on the valua tion dates should have been substituted by the written down value of those assets as per the company 's income tax records ? (2) If the answer to the first question is in the negative, whether on the facts and in the circumstances of the case, for the purposes of determining the net value of the assets of the company under Section 7(2) of the Wealth tax Act an adjustment on account of normal depreciation of the fixed assets from the date of revaluation of the assets to the valuation dates was justified ? Now reverting back to the assessment of the assessee for the assessment year 1957 58, we have earlier noted the decision of the High Court.
Aggrieved by the, answer given by the High 488 Court on the second question, the Commissioner has brought Civil Appeal 1075 of 1971.
The assessee has not appealed against the decision of the High Court on the first question.
Before adverting to the merits of the contentions of the parties, we consider it necessary to observe that we are wholly unable to comprehend the attitude of the High Court while dealing with the case.
The High Court quite clearly exceeded its jurisdiction in examining the competence of this Court to remand an appeal brought to this Court under the provisions of the Wealth tax Act.
It would have done well to remind itself that it was bound by the orders of this Court and could not entertain or express any argument or views challenging their correctness.
The judicial tradition and propriety required that court not to attempt to sit on judgment over the decisions and orders of this Court.
Now turning to the second question referred to the High Court, we agree with the High Court that the valuation of the assets shown in the balance sheet is not conclusive.
Wealth tax is levied on the value of the assets of the assessee on the valuation date.
Section 7(2) of the Wealth tax Act merely requires the Wealth tax Officer to have regard to the balance sheet.
It is open to the assessee to satisfy the authorities under the Wealth tax Act that the valuation shown in the balance sheet is not correct.
But in the absence of such a proof, the Wealth Tax Officer will be justified in proceeding on the basis that the value shown in the balance sheet is correct because no one can know the value of the assets of a business more than those who are in charge of the business.
In other words, the value of the assets shown in the balance sheet can justifiably be made the primary basis of valuation for the purpose of the Wealth tax Act.
In other words it can be taken as prima facie evidence of the value of the assets.
Here again the High Court ignoring the ratio of the decision of this Court in Kesoram Industries(1) case as well as the other deci sions of this Court held that the evidence afforded by the balance sheet cannot be considered as primary evidence or prima facie evidence of the value of the assets of the business.
To say the least.
the learned Chief Justice indulged in an unnecessary mental exercise forgetting the fact that the law as interpreted by this Court is binding on all courts and Tribunals.
Turning to the facts of the assessee 's case, the revaluation of the assets was made in 1956.
That revaluation in the absence of any evidence to show that it was incorrect, undoubtedly afforded a sound basis for valuing the assessee 's assets.
But then, when the value of those assets had to be determined on the valuation dates concerned in these cases, the Wealth tax Officer should have deducted from the 1956 valuation the value of the depreciation of (6) ; 489 those assets after the date they were revalued.
Undoubtedly those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were revalued in 1956.
Our conclusion regarding the, valuation for the year 1957 58 applies with equal force as regards the valuation for 1958 59 and 1959 60.
Following the decision of this Court in Aluminum Corporation of India Ltd. 's case(1) we answer the first question re ferred to the High Court in all these appeals in favour of the Department.
On this question we see no justification for the reservations made by the High Court in the judgment under appeal in Civil Appeal No. 1075 of 1971.
Now turning to the second question, we are of the opinion that the finding of the Tribunal on that question was essentially a finding of fact.
That finding was based on relevant evidence.
It is not vitiated in any manner.
In our opinion, the Tribunal took a correct view of the scope of section 7 (2) of the Wealth tax Act and its approach to the question was in accordance with law.
Hence our answer to the second question is in the affirmative and in favour of the assessee.
In the result, these appeals are allowed to the extent mentioned above.
In the circumstances of these cases, we direct the parties to bear their own costs both in the High Court as well as in this Court.
V.P.S. Appeals allowed.

summary/full:
The assessee company made a revaluation of its assets, namely, land, buildings, plant and machinery in 1956, and the increase in value was carried over to subsequent years.
For the assessment year 19 '57 58, on the questions, (1) whether in determining the net value of the assets under section 7(2) of the Wealth Tax Act the value as shown in the balance sheet should be substituted by the written down value as per the income tax records, and (2) whether, even on the basis of the value as shown in the balance sheet an adjustment on account of normal depreciation of the assets for arriving at the net value is justified, the High Court, on reference, answered the first question in favour of the assessee and did not answer the second question.
This Court, on appeal, set aside that judgment and remanded the case to the High Court.
Meanwhile, the High Court, for the assessment years 1958 59 and 1959 60, also on reference answered the first question in favour of the assessee and did not answer the second question.
After remand, with respect to the assessment year 1957 58, the High Court, answered the first question in favour of the Revenue and the second question in favour of the assessee.
In appeal to this Court, with respect to all the three assessment years, HELD : (1) (a) Wealth Tax is levied on the value of the assets of the assessee on the valuation date.
Section 7(2) of the Wealth Tax Act requires the Wealth Tax Officer to have regard to the balance sheet.
it is open to the assessee to satisfy the authorities that the valuation in the balance sheet is not correct, but, in the absence of such proof, the Wealth Tax Officer will be justified in proceeding on the basis that the value shown in the balance sheet is correct, because, no one can know the value of the assets of a business better than those who are in charge of the business.
[488 D F] Therefore, in the present case, the revaluation of the assets made in 1956, undoubtedly afforded a sound basis for valuing the assessee 's assets in the absence of any evidence showing that it was incorrect, and the answer to the first question for all the three years should be in favour of the Department.
The High Court was in error in holding that the evidence afforded by the balance sheet could not be considered as prima facie evidence of the value of the assets.
[488 F H] C.I.T. West Bengal vs Aluminum Corporation, and Kesoram Industries Case; , , followed.
(2) But the assets in the present case were subject to wear and tear and there was no evidence to show that the market value of these assets had , One up after the revaluation in 1956.
Hence, when the value of the 485 assets had to be determined on the concerned valuation dates, the Wealth Tax Officer should have deducted from the 1956 valuation the value of the depreciation of those assets after the revaluation.
Therefore, the answer to the second question for all the three years should be in favour of the assessee.
[488 H; 489 A B]