judgement:
Civil Appeal No. 2406 of 1968.
From the Judgment and Order dated 13 2 1968 of the High Court of Mysore at Bangalore in R.S.A. No. 477 of 1962.
M. section K. Sastri and M. section Narasimhan for the Appellant.
B. D. Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, 6,10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises two questions relating to the interpretation of certain provisions of the Bombay Municipal Boroughs Act, 1925.
The facts giving rise to the appeal are few and may be briefly stated as follows: The respondents are rate payers liable to pay property tax in respect of their lands and buildings situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation.
The Municipal Borough of Dharwar (hereinafter referred to as the Municipal Borough) was at the material time governed by the provisions of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the Act).
The Chief Officer of the Municipal Borough prepared an assessment list for the official year 1951 52 containing revised valuation and assessment of the lands and buildings situated within the limits of the Municipal Borough and published it on 1st May, 1951 in accordance with the provisions of the Act.
The respondents and several other rate payers filed their objections against the valuation and assessment in the assessment list and consequent on the decisions on the objections, modifications were made in the assessment list and the assessment list so finalised was authenticated on 24th July, 1952.
Since the authentication of the assessment list was made after the expiry of the official year, the respondents and other rate payers took the view that the assessment list was void and inoperative and the Municipal Borough was not entitled to recover property tax at the revised rates which were higher than the rates charged in the previous official years.
It seems, however, that from a few persons, whose names do not appear in the record property tax in accordance with the revised rates was collected by the Municipal Borough.
There was consequently an agitation amongst the rate payers and a body called the Citizens Welfare Association championing the causes of the rate payers addressed a communication dated 30th November, 1952 to the Director of Local Authorities requesting him to direct the Municipal Borough to refund the excess amount of property tax collected from the rate payers, because according to them the levy and collection of property 886 tax at the revised rates was illegal in view of the fact that the assessment list was authenticated only on 24th July, 1952 beyond the expiration of the official year for which the property tax was sought to be levied.
The Director of Local Authorities by his reply dated 16th December, 1952 informed the Citizens Welfare Association that the levy of property tax under the authenticated assessment list was, according to him, perfectly valid.
The President of the Municipal Borough thereafter issued a public notice dated 10th November, 1954 calling upon the rate payers to "pay immediately all the tax still due from them and extend their full cooperation to the Municipal Borough".
Since the Municipal Borough was determined to recover the amount of property tax from the rate payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate payers, filed a suit against the Municipal Borough on 6th June, 1955.
after giving notice dated 1st April, 1955 on the hypothesis that such notice was required to be given under s 206A of the Act.
The main reliefs claimed in the suit were, firstly, a declaration that the Municipal Borough was not entitled to recover property tax from the rate payers at the revised rates since the assessment list was authenticated beyond the expiration of the official year and secondly, an order directing the Municipal Borough to refund the excess property tax recovered by it from the rate payers.
The Municipal Borough in its written statement raised a preliminary objection that the suit was barred by limitation since it was not filed within six months of the accrual of the cause of action as required by section 206A of the Act and it also disputed the claim of the rate payers on merits on the ground that there was nothing in the Act which required that the assessment list should be authenticated before the expiration of the official year and that even if the assessment list was authenticated beyond the expiration of the official year, it did not have the effect of invalidating the assessment list.
The Trial Court negatived the plea of limitation based on section 206A of the Act and so far as the merits were concerned, held that since the authentication of the assessment list was admittedly made beyond the expiry of the official year, the assessment list was void and inoperative and the Municipal Borough was not entitled to levy and collect property tax at the revised rates on the strength of such assessment list.
The Municipal Borough, being aggrieved by this decision, filed an appeal to the District Court, but the appeal was unsuccessful and a second appeal to the High Court also failed.
Hence the present appeal by the Municipal Borough with special leave obtained from this Court.
The principal contention that was urged before us on behalf of the Municipal Borough was that on a true construction of the relevant provisions of the Act, the authentication of the assessment list, in client to impose liability to tax for the official year even if it is made the official year to which the assessment list relates and it is sufficient to impose liability to tax for the official year even if it is made at any time after the expiry of the official year and, therefore, in the present case, though the authentication of the assessment list for the official year 1951 52 was made on 24th July, 1952 after the expiry of 887 the official year, it was valid and effective and operated to create liability on the tax payers for payment of tax at the revised rates.
In order to appreciate this contention it is necessary to examine briefly the scheme of the Act in regard to assessment and levy of property tax.
The tascicunus or section from 78 to 89 deals with assessment of and liability to rates of buildings and lands.
These sections set out the procedure which must be followed for levy of rates on buildings and lands.
Section 78, sub section
(1) requires the Chief Officer to cause an assessment list of all lands and buildings in the Municipal Borough to be prepared containing various particulars set out in the section.
When the preparation of the assessment list is completed, the Chief Officer is required under section 80 to give public notice of the list and of the place where the list or a copy thereof could be inspected.
Simultaneously the Chief Officer has also to give public notice under sub section (1) of section 81 of a date not less than one month after such publication before which objections to the valuation or assessment in such list shall be made.
Sub section
(2) provides for the mode in which the objections must be made and sub section
(3) provides for the hearing and disposal of the objections by the Standing Committee and the proviso to this sub section permits the powers and duties of the Standing Committee to be transferred to another committee or to any officer of the government.
This sub section provides that before the objections are investigated and disposed of, the objector shall be given an opportunity of being heard in person or by an agent and it is only after the hearing the objectors that the objections can be disposed of.
When the objections are thus considered and disposed of, the assessment list with the modifications which may have been made consequent upon the decisions on the objections has to be authenticated in the manner set out in sub section
Sub section (5) provides that the list so authenticated shall be deposited in the Municipal office and shall be open for inspection during office hours to all rate payers.
The completion of this procedure leads to certain important consequences and they are set out in sub section
(6) which reads as follows: "(6) Subject to such alterations as may be made therein under the provisions of section 82 and to the result of any appeal or revision made under sec.
110, the entries in the assessment list so authenticated and deposited and the entries, if any, inserted in the said list under the provisions of sec.
82 shall be accepted as conclusive evidence (1) .
(ii) for the purposes of the rate for which such assessment list has been prepared, of the amount of the rate liable on such buildings or lands or both buildings and land in any official year in which such list is in force.
" section 82 then provides for amendment of assessment list in certain cases.
This section is rather material and it may be reproduced in full: "82.
(1) The standing committee may at any time alter the assessment list by inserting or altering an entry in respect of any property, such entry having been omitted from or 888 erroneously made in the assessment list through fraud, accident or mistake or in respect of any building constructed altered, added to or reconstructed in whole or in part, where such construction, alteration, addition or reconstruction had been completed after the preparation of the assessment list, after giving notice to any person interested in the alteration of the list of a date, not less than one month from the date of service of such notice, before which any objection to the alteration should be made.
(2) An objection made by any person interested in any such alteration, before the time fixed in such notice, and in the manner provided by sub section (2) of section 81, shall be dealt with in all respects as if it were an application under the said section.
(3) An entry or alteration made under this section shall subject to the provisions of section 110, have the same effect as if it had been made in the case of a building constructed altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs, or in other cases, on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed; and the tax or the enhanced tax as the case may be shall be levied in such year in the proportion which the remainder of the year after such day bears to the whole year.
" The next important section is section 84 which provides for the adoption of valuation and assessment contained in the assessment list of any particular year for the year immediately following.
That section is in the following terms: "84.
(1) It shall not be necessary to prepare a new assessment list every year.
Subject to the condition that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.
(2) But the provisions of sections 80, 81 and 82 shall be applicable every year as if a new assessment list had been completed at the commencement of the official year.
" The other sections in this group are not material and it is not necessary to refer to them.
It is clear from the scheme of these provisions that the official year is the unit of time for the levy of the tax.
The provisional assessment list is prepared for the official year.
This may be done before the commencement of the official year or even thereafter in the course of the official year.
Then objections are invited and when made, they are disposed of and amendments consequential upon the 889 decisions on the objections are carried out in the assessment list.
The assessment list is then authenticated.
The process of assessment and levy of the tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.
The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability to pay tax.
It is on the authentication of the assessment list that the liability of the rate payers to pay tax arises and the tax is levied on the rate payers.
This position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur Municipality vs Governor General(1) and ending has Sholapur Municipal Corporation vs Ramchandra(2) which has consistently accepted this position and the learned counsel appearing on behalf of the Municipal Borough did not dispute the correctness of these decisions.
The only contention raised by him was as to within what time the assessment list must be authenticated, if it is to be a valid and effective assessment list.
It is to this contention that we must now address ourselves.
Now, once we take the view that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it is difficult to resist the conclusion that the authentication must be made within the official year.
The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow a fortiori that the authentication on the making of which alone the levy of the tax is effected, must take place in the official year.
Any other view would result in an anomalous and rather absurd situation, namely, that the tax for an official year would be leviable at any time, even years after the expiration of the official year.
That could not possibly have been intended by the legislature.
That would indeed be a strange consequence in case of a tax which is annual in its structure and organisation and which is intended to be levied for each official year.
But, apart from this consideration, there is inherent evidence in the sections themselves which shows that the authentication was intended by the legislature to be a step which must be taken before the close of the official year.
Section 84 provides that it shall not be necessary to prepare a new assessment list every year but, subject to the conditions that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.
This provision postulates that there would be an assessment list for each official year at the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year.
Now clearly the assessment list which can be adopted for the immediately following year 890 is the authenticated assessment list and it would, therefore, seem that the legislative assumption underlying this provision is that in respect or each official year, there would be an authenticated assessment list before the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year.
Otherwise, it would not be possible for the Chief Officer to adopt the valuation and assessment of the preceding official year and he would have to prepare a new provisional assessment list every time when the assessment list for the preceding year is not finalised and authenticated and this might lead to the rather startling result of there being several provisional assessment lists for different official years in the process of finalisation at the same time.
We should be slow to accept an interpretation which might lead to such a strange consequence.
Then again considerable light on this question is thrown by the provision enacted in section 82.
It is a well settled rule of interpretation that the Court is "entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act.
" The statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute.
Obviously, therefore, section 78 to 81 must be so construed as to harmonise with section 82.
They must be read together so as to form part of a connected whole.
Section 82, sub section
(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events after hearing objections which may be made by any person interested in opposing the amendment.
Sub section (3) of section 82 makes the amendment effective from "the earliest day in the current official year on which the circumstances justifying the entry or alteration existed.
" The expression 'current official year ' in the context in which it occurs in section 82, sub section
(3) clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub section
(1) of section 82.
It would, therefore, seem clear, on a combined reading of sub sections
(1) and (3) of section 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year.
That is now well settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation vs Ramchandra (supra) and we do not see any reason to take a different view.
Now the scheme of sections 78 to 81 is identical with that of section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in the one case and the altered entry in the other are authenticated giving rise to liability in the rate payer.
It must follow a fortiori that if an alteration in the assessment list, in order 891 to fasten liability on the rate payer, is required to be made during the currency of the official year, equally, on a parity of reasoning, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year.
Moreover, it is difficult to behave that the legislature did not intend that there should be any time limit in regard to the levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year.
There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year.
We may point out that the Karnataka High Court is not alone in taking this view the present case.
This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court.
When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible.
This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment.
As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of sections 78 to 81 and gave legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954.
That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government.
It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and the authentication by such person shall not.
in any event, be later than the last day of the official year.
We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate payers to pay tax.
892 That takes us to the second contention urged on behalf of the Municipal Borough based on section 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action.
The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that date, it was barred by limitation under s.206A. This argument is plainly unsustainable.
The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951 52, was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity.
It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough.
Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months.
Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate payers to pay the amount of tax were issued by the Municipal Borough or which rate payers paid the amount of tax and when.
It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that.
The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate payers within six months after the accrual of the cause of action and the plea of limitation based on section 206A must fail.
We are, therefore, of the view that there is no substance in the appeal and it must be dismissed, but in the peculiar circumstances of the case, we make no order as to costs.
V.P.S. Appeal dismissed.

summary/full:
The scheme of Ss. 78 to 84 of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of rates on buildings and lands.
Under these provisions the provisional assessment list is prepared for the official year, either before the commencement or in the course of the official year, objections are invited, and amendments consequential upon the decisions on the objections are carried out in the list.
The assessment list is then authenticated.
The process of assessment and levy of tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.
The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability or the rate payers to pay the tax levied.
[889 C] For the assessment year 1951 52, the appellant followed the procedure but the authentication was on July 24, 1952, after the expiry of the official year on March 31, 1952.
Since property tax in accordance with the revised rates was sought to be levied, the respondents filed a suit for a declaration that the appellant was not entitled to recover any property tax at the revised rates.
The suit was decreed and the decree was affirmed by the High Court.
In appeal to this Court, it was contended that, (1) the authentication of the assessment list in order to be valid and effective, need not be made before the expiry of the official year to which the assessment list relates; and (2) the suit was barred under section 206A of the Act.
Dismissing the appeal, ^ HELD: (1) The assessment list in order to be effective in levying the tax must be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and would not give rise to any liability in the rate payers to pay tax.
[891 H] (a) Once the view is taken that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it follows that the authentication must be made within the official year.
The tax being a tax for the official year must obviously be levied during the official year and since the levy of tax is complete only when the assessment list is authenticated it must follow a fortiori that the authentication must take place in the official year.
Otherwise, the tax for an official year would be leviable at any time, without any time limit, even years after the expiration of the official year, which could not have been the intention of the legislature, since it is an annual tax intended to be levied for each official year.
[889 D F] (b) Section 84 provides that it shall not be necessary to prepare a new assessment list every year but subject to the condition of revision once in every four years, the Chief Officer may adopt the assessment list for any year, with necessary alterations for the year immediately following.
The provision 884 postulates that there would be an assessment list, that is, the authenticated assessment list, for each official year before the close of that official year so that it can be adopted by the Chief Officer for the immediately following year.
Otherwise, he would have to prepare a new provisional assessment list every time when the Assessment List for the preceding year is not finalised and authenticated, and this might lead to the starting result of there being more than one provisional assessment list in the process of finalisation at the same time.
[889 G 890 C] (c) In interpreting a provision of a statute the court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature.
The statute must, therefore, be read as a whole and every provision in it must be construed with reference to the context and other clauses so as, as far as possible, to make a consistent enactment of the whole statute.
Section 82(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events, after hearing any objections to the amendment, Section 82(3) makes the amendment effective from 'the earliest day in the current official year in which the circumstances justifying the entry or alteration existed. ' The expression clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place, that is, the official year which is running at the time when the amendment is made by insertion or alteration of an entry.
Therefore, a combined reading of section 82(1) and (3) shows that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year.
The scheme of sections 78 to 81 is identical with section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in one case, and the altered entry in the other, are authenticated, giving rise to liability in the rate payer.
It must follow a fortiori that if an alteration in the assessment list in order to fasten liability on the rate payer, is required to be made during the currency of the official year equally, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year.
[890 C 891 B] Sholapur Municipality vs Governor General, 49 Bom.
L.R. 752 and Sholapur Municipal Corporation vs Ramchandra 74 Bom.
L.R. 489 referred to.
(d) Three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years and this Court will not be justified in departing from it, merely on the ground that a different view is possible.
This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment.
[891 C D] (e) In the present case, the Bombay Legislature has accepted the interpretation of sections 78 to 81 by the three High Courts and given legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954.
This provision makes it clear that the legislature not only did not amend the Act for the purpose of removing the time limit of the official year as interpreted by the High Courts or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not late than July 31, of the official year, and that if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and that the authentication by such person shall not, in any event, be later than the last day of the official year.
[891 D H] (2) Section 206A provides, inter alia, that no suit shall lie against a municipality in respect of any act done in pursuance of execution or intended execution of the Act unless it is commenced within 6 months next after the accrual of the cause of action.
It could not, however, be contended that the cause of action for the suit in the present case arose in favour of the respondents and other rate payers on July 24, 1952, when the list was authenticated and that the suit, not having been filed within 6 months of that date, is barred.
The assessment list in the present case was authenticated after the expiry of 885 the official year and was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity.
Their cause of action arose only when the appellant sought to recover the amount of tax from them on the strength of that assessment list.
In the absence of material to show when the notices demand requiring the respondents and other rate payers to pay the amount of tax were issued, or which rate payers paid and when it is not possible to say whether the cause of action for filing the suit arose to the respondents within six months before the filing of the suit or earlier.
[892 A E]


judgement:
Civil Appeal No. 1381 of 1968.
(Appeal by Special Leave from the Judgment and Decree dated the 22 2 1967 of the Bombay High Court in First Appeal No. 12/1960).
M. N. Phadke, M. N. Shroff and section P. Nayar, for the appellant.
V. section Desai and D. Goburdhan, for the respondent.
981 The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short question as to whether the Watan held by the respondent at the date of coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was a Watan of the soil, or a Watan of land revenue only, in respect of certain lands situate in village shirambe, Taluka Koregaon, District North Statara.
If the Watan was in respect of the soil, the respondent would not be entitled to any compensation for the resumption of the Watan lands, but if it was a Watan of land revenue only, the respondent would have a claim for compensation for a "a sum equal to ten times the amount of such land revenue" under section 6(2) of the Act.
The respondent claimed that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in section 6(2) of the Act and filed a suit for recovery of Rs. 15,074 4 0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, Satara.
The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division.
The High Court construed the Sanad granted by the British government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contemporaneously made in the alienation register and came to the conclusion that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenue and the respondent was, therefore, entitled to claim compensation the basis laid down in section 6(2) of the Act.
The State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special leave obtained from this Court.
We have carefully gone through the judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there.
The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it.
The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent.
The Sanad undoubtedly used the word 'lands ' to describe the subject matter of the grant, but the word 'land ' is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word 'land ' in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863.
The description of the subject matter of the grant as 'lands ' in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil.
In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan. ' Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil.
The High 982 Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court.
The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil.
This position was in fact accepted by the Revenue officers all throughout and that is evident from the order of the District Deputy Collector, Satara dated 19th August, 1937 (exhibit 28) and the decision dated 28th February, 1951 (exhibit 331) given by the Collector of North Satara allowing an appeal filed by the respondent.
We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Act.
It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all.
The judgment of the High Court was pre eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.
The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment.
It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.
We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected.
The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there are no chances of success.
It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court.
It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost.
The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.
We accordingly dismiss the appeal with costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under section 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act.
1950, for the resumption of the lands by the appellant.
The suit claim of Rs. 15,074 4 0 being "a sum equal to ten times the amount of such land revenue" was decreed by the trial court.
On appeal by the State, the High Court affirmed the same.
after construing the sanad granted by the British Government in favour of the respondents ' ancestors and other relevant records, as it was a watan of land revenue and not in respect of the soil.
Dismissing the State 's appeal by special leave to this Court, ^ HELD: (1) The High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the watan held by the respondent at the date of the coming into force of the Act was a watan of land revenue the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950.
[982B C] (2) The sanad undoubtedly used the words "lands" to describe the subject matter of the grant, but the word "land" is defined in Bombay Act II of 1863 [The Exemption From Land Revenue (No. 1 ) Act 1863], to include share of land revenue and this meaning would apply in the construction of the word "land" in the sanad since the sanad was apparently granted pursuant to the enquiry made under Bombay Act II of 1863.
The description of the subject matter would not, therefore, necessarily indicate that it was a grant of the soil.
In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan '.
[981F H] [Their lordships deprecated the litigious approach adopted by the State Government and observed "State Governments which have public accountability in respect of their actions should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense.]


judgement:
Civil Appeal Nos.
68 of 1974 and 936 of 1975.
Appeals by Special Leave from the Judgment and order dated 5 11 1973 of the Punjab & Haryana High Court in Sales Tax Reference Nos. 12 and 11 of 1969.
Desai, (In CA No. 936/75), P. C. Bhartari, R. Narain, K. J. John, O. C. Mathur for the Appellants.
B. Sen, (In CA No. 68/74), and R. N.Sachthey for the Respondent.
P. C. Bhartari for Applicant/Interveners (In CA No.68/74).
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is on the question whether the appellant is exempt from inter State tax on the sales of poles and cables to the Delhi Electric Supply Undertaking by reason of the provisions contained in section S(2)(a)(iv) of the Punjab Sales Act hereinafter referred to as the State Act.
Section 5(2) (a) (iv) of the State Act is as follows: "5(2) In this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the , of goods for use by it in the generation or distribution of such energy.
" Under section 8 of the hereinafter referred to as the Central Act, every dealer, who in the course of inter State 994 trade or commerce sells to the Government any goods; or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under this Act, which shall be three per cent of his turnover.
The provisions in section 8(2A) of the Central Act are as follows : "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than three per cent, (whether called a tax of fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.
EXPLANATION: For the purposes.
, of, this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the ' appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The contention on behalf of the appellant is that by reason of the Explanation to section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act the appellant is exempt from payment of inter State sales tax.
The words "goods for use by it in the gene ration or distribution of such energy" occurring in section S (2) (a) (iv) of the State Act are said by counsel for the appellant to be descriptive of the goods.
In short, the appellant 's contention is that goods for use by the undertaking supplying electrical energy are generally exempt from taxation, and, therefore, they should not be included in the turn over.
The contention on behalf of the State is that the exemption granted under section 5(2)(a)(iv) of the State Act is exemption in specified circumstances and under specified conditions.
The specified circumstances are said to be sales to an undertaking supplying electrical energy to the public under the .
The specified conditions are that the goods are for use by the undertaking in the generation or distribution of such energy.
The answer to the question in this appeal is whether the exemption mentioned in section 5(2) (a) (iv) of the State Act is in specified cir circumstance or under specified conditions, as the Case may be, or it is a general exemption as the appellant contends in cases of sales of goods to an Electric Supply Undertaking for use by it in the generation or distribution of such energy.
995 The appellant referred to Schedule read with section 6 of the State Act and in particular Items 33 and 46 to illustrate what would be exemption under specified circumstances or specified conditions.
In Schedule there are two columns.
The first column describes the goods.
The second column describes the conditions which make the goods tax free.
In Item 33 in Schedule "Photographs including Xrays photographs" mentioned in the first column are tax free "when sold by photographers and radiologists preparing them" as mentioned in the second column.
In Item 46 "hand spun yarn" mentioned in the first column becomes tax free "when sold by one who deals in hand spun yarn exclusively" as mentioned in the second column Section 5(2) of the State Act deals with taxable turnover.
There is no dispute that electricity poles and cables sold to the undertaking supplying electric energy are exempt under the State Act from being included within the taxable turnover.
The question is whether such sales made in the course of inter State trade are also exempt from the levy of Central Sales Tax.
The appellant contends that the exemption in the State Act is general because exemption applies in respect of goods without any enumeration or classification of goods.
Further, it is said that exemption is general because the sales are for use in generation and distribution of electrical energy.
According to the appellants sales of all goods to the undertaking supplying electrical energy are exempt from being included in the taxable turnover as long as the goods answer the description that they are for use in the generation or distribution of electrical energy.
The appellant relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh vs Kapoor Dori Niwar & Co., Gwalior(1) tn support of the meaning of the expression "exempt from tax generally".
In the Madhya Pradesh case (supra) the State Government issued a notification in the year 1959 exempting from the payment of sales tax for a period of one year sales of niwar by a dealer registered under the 1958 relevant State Act.
The exemption was later on extended up to 31 March, 1963.
The assessee a registered dealer claimed exemption on inter State sales of niwar.
The Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessee 's inter State sales of niwar were exempt from tax under the Central Act.
The expression "exempt only in specified circumstances or under specified conditions" occurring in the Explanation to section 8(2A) of the Central Act was held to mean such circumstances or conditions the non existence or non performance of which precludes the grant of exemption.
In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and during the period for which exemption is granted.
996 In the Madhya Pradesh case (supra) there was no dispute that the sales effected by the assessee fell under section 8(1) of the Central Act.
The State Act granted exemption from sales tax on sales of niwar effected by a registered dealer.
The exemption granted to sales by a registered dealer under the notification was without any restriction or limitation so far as sales by a registered dealer were concerned.
Though the period of exemption was fixed, it was not regarded as a condition imposed in relation to the exemption.
It was also contended there that because the exemption was granted to the registered dealers the exemption was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions.
The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.
The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. vs The State of Uttar Pradesh & Anr.(1) In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories.
Under a notification issued by the State Government under the State Act sales of mirrors and safety glasses were liable to sales tax either at the point of sale by the importer of such goods or at the point of sale by the manufacturer thereof.
Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years.
The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central 'Act.
It was held that for purposes of section 8(2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company.
The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from to the generally unless it could be shown that such goods belonged to the class specified in the Explanation to section 8(2A) of the Central Act.
As the toughening glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.
The stipulation in the notification in the Safety Glass Work case (supra) that the turnover of such sales would for a period of three years be exempt from payment of sales tax did not amount to exempting the turnover of such goods from tax under specified circumstances or specified conditions.
Section 6 of the State Act does not speak of exemption, but deals with tax free goods.
In other words, section 6 deals with specified goods on which no tax is payable.
Section S of the State Act deals with what has to be excluded from the taxable turnover of the dealer.
997 Both the sections deal with goods which do not suffer from sales tax.
A Section 8(2A) of the Central Act exempts goods from inter State sales tax where a tax law of the State has exempted them from sales tax.
The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
For these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act.
The appeal is dismissed.
In view of the fact that the High Court directed the parties to pay and bear their own costs, similar order is made here.
S.R. Appeal dismissed.

summary/full:
Under section 5(2)(a)(iv) of the Punjab Sales Tax Act "taxable turnover" meant that part of a dealer 's gross turnover during any period which remains after deducting therefrom, his turnover during that period on sales to any undertaking supplying electrical energy to the public under a licence or sanction granted under the , of goods for use by it in the generation or distribution of such energy.
Under section 8 of the Central Sales Tax, every dealer.
who in the course of inter state trade or commerce sells to the Government any goods: or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under the Act, which shall be three per cent of his turnover.
Section 8(2A) reads as follows: "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax pay able under this Act by a dealer on his turnover in so far as the turn over or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate state, exempt, from tax generally, or subject to tax generally at a rate which is lower than three per cent.
(whether called a tax or fee or by any other name), shall be nil or, as the case may be shall be calculated at tho lower rate.
Explanation: For the purpose of this sub section or sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate state, if under the law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The appellants were suppliers of poles and cables to the Delhi Electric Supply Undertaking and the sales were in the course of inter state trade or commerce and admittedly exempt under the state sales tax u/s 5(2) (a) (iv).
The state assessed tax u/s 8 of tho on the ground that the exemption granted u/s 5(2)(a)(iv) of the state Act fell under Explanation to section 8(2A) of the .
The High Court held that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(1A) of the Central Act read with Section 5(2)(a)(iv) of the State Act.
Dismissing the appeal, by special leave, the Court.
^ HELD: (I) General exemption means that goods should be totally exempt from tax before similar exemption from the levy of central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
Section 6 of the State Act does not speak of exemption but deals with tax free goods.
Section 6 deals with specified goods on which no tax is payable.
993 Section 5 of the State Act deals with what has to be excluded from taxable turnover of the dealer.
Both the sections deal with goods which do not suffer from Sales tax.
Section 8(2A) of the Central Act exempts goods from inter State Sales tax where a tax law of the state has exempted them from sales tax.
The explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5(2) (a) (iv) of the state Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
[996H, G97A D] Commissioner of Sales Tax, M.P. vs Kapoor Dari Niwar & Co., Gwalior 22 STC p. 152; Hindustan Safety Glass Works (P) Lrd.
vs The State of U.P. and Anr.
34 STC 209, discussed.


judgement:
ION: Civil Appeal No. 119 of 1975.
Appeal by Special leave from the Judgement and order dated 15 4 1974 of the Punjab and Haryana High Court in Civil Writ Petition No. 4289 of 1973.
N. N. Goswami and Arvind Minocha for the Appellant.
G.B. Pai, section R. Agarwal, Parveen Kumar and Khaitan & Co. for Respondent No. 2.
1011 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave turns on the question whether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (hereinafter referred to as the Act).
The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd. The services of the appellant were terminated on 4th September, 1972.
The appellant thereafter demanded reinstatement.
The Conciliation officer started conciliation proceedings under section 12 of the Act.
No settlement could be arrived at.
The Conciliation officer sent a report to the State Government under section 12(4) of the Act.
The State Government by letter dated 7 June, 1973 informed the appellant that the Government had considered the appellant 's case not fit for reference to the Labour Court for adjudication.
The Government in the letter stated as follows: "The Government have not found your case fit for adjudication to a Labour Court because you were working as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 500/ per month.
Therefore, your case is not covered by the definition of the terms "Workman" given in the Industrial Disputes Act.
" The appellant under Article 226 of the Constitution applied for a writ of mandamus directing the State to make a reference.
The High Court dismissed the application.
The appellant contended that the question whether the appellant was a workman was a disputed question of fact and law which could be decided only by an appropriate Labour Court.
The appellant also submitted that if the dispute in question raises questions of law the appropriate Government should not give a final decision on the question.
In short, the appellant 's contention is that the issue whether the appellant is a workman or not could only be decided by the Labour Court and, therefore, reference should have been made.
Under Section 10 of the Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time refer the dispute, inter alia, to a National Tribunal for adjudication.
Section 12 of the Act deals with duties of Conciliation officers.
If the Conciliation officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government.
Under section 12(S) of the Act if, on a consideration of the report referred to in sub section (4), the appropriate Government is satisfied that there is a case for reference, it may make such reference.
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
1012 This Court in State of Madras vs C.P. Sarathy and State of Bombay vs K.P. Krishnan & ors.
held that the order of the Government acting under section 10(1) read with section 12(5) of the Act is an administrative order and not a judicial or a quasi judicial one.
In Bombay Union of Journalists & ors.
vs The State of Bombay and Anr.
this Court said that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(1) read with section 12(5) of the Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government.
If it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.
In K.P. Krishnan 's case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go slow tactics during the relevant year.
The facts were that the company had nevertheless voluntarily paid three months ' bonus for that year and the report of the Conciliation officer was in favour of the employees.
This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.
In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.
The High Court rightly rejected the application.
The appeal is, therefore, dismissed.
Parties will pay and bear their own costs.
S.R. Appeal dismissed.

summary/full:
Under section 12(5) read with 10(1) of the Industrial Disputes Act, if on consideration of a failure report u/s 12(4) from the conciliation officer, the appropriate Government is satisfied and is of opinion that there is an industrial dispute and a case for reference, it may make such reference to the labour court.
On considering the "failure report", of the conciliation proceedings in respect of the appellant, an Electrical foreman, the respondent state informed him that his duties being supervisory with wages more than Rs. 500/ his case was not covered by the definition of the terms "workman" under the Industrial Disputes Act and therefore, not a fit case for adjudication.
The appellant assailed the said orders under Art.226, which was dismissed.
On appeal by special leave the appellant contended that the question whether an employee is a workman or not was a disputed question of fact and law and, therefore could only be decided by a labour court and on a reference only but not by the State Government while exercising its powers u/s 12(5).
Dismissing the appeal, the Court ^ HELD: (1) The order of the Government acting under section 10(1) read with section 12(5) of the Industrial Disputes Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi judicial one.
[1012A] Sate of Madras vs C. P. Sararthy, and State of Bombay vs K. P. Krishnan & ors.
[followed].
(ii) In entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(I) read with section 12(S) of the Act the court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons.
If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign, then the court may in a given case consider the case for a writ of mandamus.
[1012 A C] Bombay Union of Journalists ors vs The State of Bombay


judgement:
N: Criminal Appeal No. 250 of 1971.
Appeal by special leave from the judgment and order dated the 1st July, 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 33 of 1970.
N. N. Keswani, for the appellant.
section N. Anand and M. N. Shroff, for the respondent.
1054 The Judgment of the Court was delivered by SARKARIA, J.
The appellant in this appeal was Accused No. 2 in the trial court.
He was a Head Constable (Jamadar) posted at the relevant time in Police Station, Zinzuwada.
His co accused (No. 1) was a Police Sub Inspector posted in the same station.
One Bai Sati,was alleged to have been abducted by Ghanshyamsinh alias Ghanuba.
She was in the Police Station on the 10th and 11th of July, 1968.
Accused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh.
Fateh Sinh accordingly produced Ghanshamsinh before Accused 1 on July 11, 1968.
Accused 1 directed the appellant to take charge of Ghanshamsinh.
The appellant did likewise and told Ghanshamsinh that if he wanted to get rid of the charge, he should gratify the Sub Inspector.
The appellant backed up the suggestion with a threat to handcuff Ghanshamsinh and put him in the police lock up.
The appellant further demanded a bribe of Rs. 2,000/ .
At first Ghanshamsinh expressed his inability to pay the amount.
Ultimately at the intervention of Accused 2, the demand was scaled down to Rs. 1,000/ and it was agreed that out of the amount, a sum of Rs. 500/ would be paid on the following evening at the latest.
Ghanshamsinh was then allowed to go.
He then talked about this deal to his cousin, Fatehsinh.
On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of the Anti Corruption staff of Police and made a complaint which was recorded.
Shri Desai then in the presence of Panchas, supplied a sum of Rs. 500/ in five currency notes of the denomination of Rs. 100/ each to Ghanshamsinh for use in the trapping the accused persons in the act of taking the bribe.
The notes were smeared with anthracene powder and Ghanshamsinh was directed to hand over the same on demand to the accused, and then signal to the raiding party.
After settling the plan, the party came to Zinzuwada on July 12, 1968.
Ghanshamsinh was sent ahead with the tainted money to the Police Station.
On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1, the appellant called him and took him to his office room in the Police Station.
Ghanshamsinh informed the appellant that he had brought the money as agreed for payment to Accused 1.
The appellant told him that Accused 1 being away, he was the acting Station House Officer and the money should be paid to him, adding that he would, in turn, pass it on to Accused 1 on his return.
Ghanshamsinh then handed over those five currency notes to the appellant who accepted the same and placed them in the drawer of his table.
All the three persons then came out of the room.
The appellant locked the room.
On receiving the agreed signal from Ghanshamsinh, the police party rushed in and caught hold of the appellant by the hand.
With the key found on the person of the appellant, Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant 's table.
The hands of the complainant Ghanshamsinh, Panch Mahendra and the appellant were examined in the light of an ultra violet lamp.
Such examination revealed anthracene powder on the hands of the appellant and Ghanshamsinh; but no such powder was seen on Panch Mahendra.
Shri 1055 Desai prepared the Panchnama.
Certain police papers on the demand of Inspector Desai were produced by the Writer Constable, Kansanbhai.
These are: (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; (3) the writing sent by Police Sub Inspector, Dasuda under Javak No. 2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; (4) The Statement of Bai Sati recorded by the Police Sub Inspector at Dasuda on July 10, 1968.
The Inspector seized these records.
After completing the investigation, the police sent both the accused under a charge sheet for trial before the Special Judge, Surendranagar on charges under section 161 read with section 34 and section 165A of the Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The trial Judge acquitted both the accused of all the charges levelled against them.
On appeal by the State, the High Court of Gujarat, reversed the acquittal of the appellant and convicted him on two counts, namely, one for an offence under section 161, Penal Code and the other under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for two years on the latter count.
No separate sentence under section 161, Penal Code was inflicted.
Hence this appeal by special leave.
The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police Inspector Desai.
The first two are witnesses of the demand of the tainted currency notes and the acceptance thereof by the appellant from PW 1.
Inspector R. R. Desai, PW 8, was the Head of the raiding party who recovered the tainted notes.
Examined under section 342, Cr.
P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave this account of what happened on the 12th July 1968: ". the complainant Ghanubha Champubha and his companion came up to me.
I asked Ghanubha as to why he had come.
He informed me that his companion was related to the P.S.I.,and that he had some work with him.
He told me that he had accompanied him to show him the police station.
I offered them seats, and gave them water.
I questioned the above person about his relationship with the Sub Inspector.
He replied to me that he was the agnate of P.S.I. Joshi, and that he had come to hand over money to him as his son was sick and that, the said money was sent by his family from Ahmedabad.
I instructed him to approach his wife and give money to her.
He told me that if he met her, he would have to stop for the night, so that he would not be able to attend the H.L. College in the morning.
He told me to take the money and give it to P.S.I. 1056 Joshi, and that, I should arrange for his transport to Ahmedabad in some motor truck proceeding there.
He gave me Rs. 500/ in five G. C. Notes, which are now before the Court at article 2.
I placed them in a cloth purse, and kept it in my drawer, over the said application of Narubha exhibit 51.
I offered them tea and asked them to wait outside.
I also told him that I would arrange for his lift in the motor truck carrying salt to Ahmedabad.
So saying, we came out of the police station.
I locked my room because in it, are placed arms and ammunitions.
I was leaving the Police Station and going to the hotel for placing an order for tea, when two men held me by my two hands.
They brought me in the compound of the Police Station.
Other 3, 4 men turned up, and one Saheb from amongst them asked me to produce the money.
I exclaimed, "What money": I told him if the money, that was required, was the same, which the cousin of P.S.I. Joshi had handed over to me.
The officer insisted that the money must be produced.
I was then perplexed.
He took the key from one of my hands and opened my room, and took out the money.
I was seated in the verandah and was not allowed to go inside.
I then learnt that the said brother of the P.S.I. was none else but Panch No. 1.
The Officer asked from me the papers of investigation against Ghanubha.
I said that I had no such papers, and that I had not made any such investigation against him.
He then attached some papers from the Writer Constable Karsan Talshi.
" Thus, the appellant had admitted the acceptance of the tainted currency notes which were not his legal remuneration.
In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. section I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi.
The appellant, further, admitted that after the recovery of the money, when his hands were examined in the light of the ultra violet lamp, shining powder was found thereon.
He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined.
He expressed a desire to appear in the witness box and make a statement on oath.
Subsequently, however, he did not do so, but examined one Naruba Dosubha (D.W. 1) in defence, who more or less supported the version of the appellant with regard to the receipt of Rs. 500/ by the appellant from PW Mahendra.
The trial Judge instead of appraising the evidence of the witnesses produced by the prosecution in the light of the admission made by the appellant in regard to the acceptance of money, rejected the prosecution case in toto against both the accused on grounds which were manifestly erroneous and unreasonable.
Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed towards all the members of Zanzuwada Police, including the appellant.
He brushed aside the evidence of Mahendra with the puerile observation that he "as a trainee Press Reporter would be beguiled into 1057 getting this first class report of a sensational raid by acting as a panch witness in this raiding party, at the instance of Mr. Desai. .and in that event, Mahendra would be too willing to accompany the raiding party and in that context would be under the intelligent thumb of police, not by means of pressure, but as a result of human inquisitive, willingness induced in him.
" The trial Judge further stressed the fact that Mahendra had accompanied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was "not so much independent as he professed to be." He further found it unbelievable that the appellant would accept the sum of Rs. 500/ as a bribe from Ghanshamsinh in the presence of a stranger (Mahendra).
The conclusions reached by the trial Judge had no foundation in evidence.
They belonged to the realm of purespeculation.
Apart from mere suggestions put to the prosecution witnesses, in cross examination, (which were emphatically denied), there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant.
There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such, was an interested witness.
We have examined the evidence of Mahendra and are satisfied that the High Court rightly found him a truthful and trustworthy witness who had no axe of his own to grind.
The defence version to the effect, that it was Mahendra who had actually passed on the tainted money to the appellant by holding himself out as a relation of the Sub Inspector, was falsified by the circumstance that no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes, his hands were examined in the light of ultra violet lamp; while such powder was admittedly found on the hands of the appellant, and Ghanshamsinh.
This circumstance was deposed to by Inspector Desai (PW 8) whose version on this point was not challenged in cross examination.
Thus, while DW 1 told a lie on this point, this uncontroverted circumstance could not.
The presence of Mahendra (PW 4) at the time of the receipt of the tainted notes was admitted by the appellant himself.
In the face of this admission, there was no justification for the surmise made by the trial Court, that the appellant, an experienced Head Constable, could not be so stupid as to receive Rs. 500/ as a bribe in the presence of an unknown person.
Thus it had been indubitably established that the appellant, a public servant accepted a gratification, that is, a sum of Rs. 500/ which was not his legal remuneration, from Ghanshamsinh (PW 1).
On proof of this fact, the statutory presumption under s.4(1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive or reward such as is mentioned in section 161, Penal Code.
Mr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it.
The 1058 first and the foremost of these circumstances, according to the Counsel, is that no complaint whatever against Ghanshamsinh in respect of the commission of an offence was under investigation with the police; that no F.I.R had been lodged by any person complaining of the abduction of Bai Sati against Ghanshamsinh or any other person.
Our attention has been drawn to the statement of Bai Sati, which is said to have been recorded by Accused 1 on the 11th January in which it is recorded that she had not been kidnapped or abducted by any person but had gone away from her father 's house of her own accord.
The second circumstance stressed by the Counsel is that Accused 1 has been acquitted of the charge of demanding a bribe directly or indirectly through the appellant, from Ghanshamsinh.
It is urged that the effect of the acquittal of Accused 1 is that the money passed on to the appellant on the 12th cannot be held to have been paid pursuant to any demand of bribe made by Accused 1 or by the appellant.
The third circumstance, pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him, because the appellant had previously investigated a criminal case under section 324, Penal Code against the appellant, who being aware of it, would be least disposed to accept the amount, as a bribe, for himself or for the Sub Inspector.
It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable antecedents, and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could not be safely accepted.
We are unable to accept the contention that the presumption under section 4(1) of the Prevention of Corruption Act had been rebutted.
While it is true that no report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bai Sati, there was credible evidence on the record to believe that both the accused had asked Fatehsinh, PW 7, to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him.
Fatehsinh conveyed this message to Ghanshamsinh on July 10, 1968.
Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh before the Police Sub Inspector at the latter 's residence, and thereafter Accused 2, the appellant, took him into the Police Station and made him sit in his room.
It was the appellant who then accused Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub Inspector, he would be arrested and paraded in handcuffs around the village.
Evidence of PWs Ghanshamsinh and Fatehsinh with regard to the summoning of Ghanshamsinh to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July 1968, Bai Sati was in the Police station.
It is no doubt correct that the High Court has not disturbed the acquittal of Accused 1 on the ground that Ghanshamsinh 's evidence with regard to the demand of the bribe by accused 1 on the 11th, had not been corroborated by other independent evidence.
The only effect of the acquittal of Accused 1, however, is that it cannot be now urged that Accused 1 had demanded any bribe from Ghanshamsinh on 1059 the 11th.
But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba was called to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against him.
Nor does the acquittal of Accused 1 have the effect of exonerating the appellant of the demand of bribe on the 11th and again on the 12th.
As already noticed, the testimony of Ghanshamsinh both with regard to the demand of the gratification by the appellant and its payment to him, on the 12th stood fully corroborated by the independent and reliable testimony of Panch Mahendra.
Thus, so far as the appellant is concerned the testimony of Ghanshamsinh, having been fully confirmed by other trustworthy evidence, could safely be acted upon.
As regards the contention that the appellant was not in a position to show any favour or disfavour to Ghanshamsinh in connection with his official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub Inspector being away, the appellant was actually incharge of the Police Station.
This fact is borne out by the entry exhibit 47 in the Station Diary.
On seeing Ghansham and Mahendra going towards the residence of the Sub Inspector, the appellant called them and enquired from Ghanshamsinh if he had brought the money.
Ghanshamsinh replied in the affirmative but hesitated to hand over the money to him saying that the Sub Inspector was not present.
Thereupon, the appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would pass it on to the P.S.I. on his return.
Thereupon, Ghanshamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be mercifully dispensed with.
The appellant while accepting the money assured Ghanshamsinh that he had nothing to fear so long as the appellant was concerned in that affair.
Secondly, this demand for payment and acceptance of the money by the appellant on the 12th July had to be appreciated in the context of the representation made by the appellant on the preceding day, to the effect, that if Ghanshamsinh would not pay the gratification, he would be arrested, handcuffed and paraded for the offence of abducting Bai Sati.
The proof of the foregoing facts was sufficient to establish the charge under section 161, Penal Code.
The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the Police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh, out of the mischief of section 161, Penal Code.
The Section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification.
To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by 1060 inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief.
It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.
This is clear from the last Explanation appended to section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done comes within the purview of the words "a motive or reward for doing.
" The point is further clarified by Illustration (c) under this Section.
Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsinh was, in fact, false, this will not enable him to get out of the tentacles of section 161, although the same act of the appellant may amount to the offence of cheating, also (see Mahesh Prasad vs State of U.P.,Dhaneshwar Narain Saxena vs Delhi Admn.
Indeed, when a public servant, being a police officer, is charged under section 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose.
If he has used his official position to extract illegal gratification, the requirement of the law is satisfied.
It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad Dave and anr.
vs State of Gujarat, and Shri Raj Singh vs Delhi Administration.
In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under section 4(1) of the Prevention of Corruption Act.
It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case.
Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161.
The appellant had hopelessly failed to show such a balance of probability in his favour.
Thus the charge under section 161, Penal Code had been fully brought home to the appellant.
The charge under section 5(1)(d) read with section 5(2), also had been proved against him to the hilt.
Clearly he had obtained the money by grossly abusing his position.
Lastly, towards the fag end, in reply, Mr. Keswani attempted to assail the conviction recorded by the High Court on a ground which had not been raised in the courts below.
The charge against the 1061 appellant was that he had committed an offence under section 161, read with section 34, Penal Code.
No charge under section 161 simpliciter was separately drawn up against him.
This being the case, contends 'Mr. Keswani, the High Court was not, in the event of the acquittal of Accused 1, competent to convict the appellant under section 161 with the aid of section 34 Penal Code.
The contention must be repelled.
Firstly, the High Court has not convicted the appellant with the aid of section 34, Penal Code.
Secondly, although in the charge, only section 161, read with section 34, Penal Code was mentioned, the language of the charge, could leave the appellant in no doubt that in addition to the vicarious charge under section 161, read with section 34, he was being charged with the commission of an offence under section 161, simpliciter also.
This was manifest from the words : "You Accused 2 directly accepted from Shri Ghanshamsinh Champublia Zala Rs. 500/ .
" All the material circumstances appearing in evidence constituting an offence under section 161, Penal Code simpliciter were put to him during his examination.
This objection was not raised in any of the courts below at any stage.
No prejudice has therefore, been caused to the appellant by this technical defect in the charge.
In any case this irregularity stood cured under section 537, Criminal Procedure Code.
For the foregoing reasons, the appeal fails and is dismissed.
V.P.S. Appeal dismissed.

summary/full:
The appellant (a Head Constable) and the Sub Inspector of Police were charged with offences under section 161 read with section 34 and section 165A, IPC, and under section 5(2) read with section 5(1)(d) Prevention of Corruption Act, 1947.
The appellant admitted the receipt of money and its recovery from him but stated that PWS 1 and 4 came to the Police Station, that PW 4 claimed to be a relative of the Sub Inspector and that it was PW 4 and not PW 1 who gave him the money to be handed over to the Sub Inspector who was absent.
The prosecution adduced evidence to show that the two accused arranged for the production of PW 1 at the Police Station in connection with the investigation of a charge of abduction of a woman; that the Sub Inspector directed the appellant to take charge of PW 1 when he arrived; that the appellant demanded a bribe from PW 1 to save himself from the charge as well as the indignity of being handcuffed, locked up and paraded; that a trap was set the next day when PW 1 paid the amount in the presence of PW 4 and that the amount was recovered from the appellant in a raid.
The trial court acquitted both the accused, but on appeal, the High Court acquitted the Sub Inspector but convicted the appellant under section 161 IPC and section 5(2).
Prevention of Corruption Act.
In appeal to this Court, the appellant contended, (1) that PW 1 's evidence regarding the payment of gratification should not be accepted without independent corroboration, (2) that the statutory presumption under section 4(1).
Prevention of Corruption Act that the appellant accepted the gratification as a motive or reward such as is mentioned in section 161, I.P.C., should not be drawn against the appellant, because, (a) there was, in fact, no complaint whatever against PW 1 in respect of the commission of the offence of abduction; and (b) the effect of the acquittal of the Sub Inspector was that the money could not be held to have been paid to the appellant pursuant to any 161 demand of bribe; and (c) that since the two accused were charged under section 161 read with section 34, on the acquittal of the Sub Inspector the appellant could not be convicted under section 161 simpliciter.
Dismissing the appeal, ^ HELD: (1) The testimony of PW 1 stood fully corroborated by other independent and reliable testimony and hence could be safely acted upon.
The defence version that it was PW4 who paid the money was falsified by the fact that no anthracene powder, with which the notes used in the raid were smeared, was found on PW 4 's hands.
while it was found on the hands of the accused and PW1.
[1057E; 1059B C] (2)(a) The mere fact that no complaint of abduction or of any other offence had been made or registered against PW 1 could not take the act of the appellant in demanding and accepting the gratification from PW 1 in the context of the threat by the appellant out of the mischief of section 161, I.P.C. The section does not require that the public servant must,in fact,be in a 1053 position to do the official act, favour or service at the time of the demand or receipt of the gratification.
To constitute an offence under this section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, with any other public servant, and the giver gives the gratification under that belief.
It is also immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.
The last Explanation and Illustration (c) to the section show that the person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing".
When a public servant, being a police officer, is charged under section 161, I.P.C., and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose.
If he has used his official position to extract illegal gratification the requirement of the law is satisfied.
[1059F 1060E] Mahesh Prasad vs State of U.P. ; ; Dhaneshwar Nariam Saxena vs Delhi Admn.
; ; Bhanuprasad Hariprasad Dave and anr.
vs State of Gujarat ; and Shiv Raj Singh vs Delhi Administration ; , followed.
In the present case, on the day of the payment the Sub Inspector was away and the appellant was actually in charge of the police station.
It was he who called PW 1 and asked if he had brought the money and when PW 1 replied in the affirmative but hesitated to hand over the money, represented that the money should be handed over to him, and that he would pass it on to the Sub Inspector, and that PW 1 would have nothing to fear.
[1059C F] (b) The only effect of the acquittal of the Sub Inspector is that it cannot be urged that the Sub Inspector had demanded any bribe from PW 1.
It does not in any way discount the evidence that PW 1 was called to the police station and was informed by the appellant that a charge of abduction was against him and that the appellant demanded and received a bribe from him.
[1058H 1059B] (c) The burden on the accused to displace a presumption is not as onerous as that on the prosecution to prove its case, but the accused has to discharge it by adducing evidence, circumstantial or direct, which establishes with reasonable probability that the money was accepted by the accused other than as a motive or reward such as is referred to in the section.
In the present case,the appellant had failed to show such a balance of probability in his favour.
[1060E G] (3) The language of the charge shows that in addition to the charge under s.161 read with section 34, the appellant was in substance also being charged under section 161 simpliciter.
All the material circumstances appearing in evidence, constituting an offence under section 161, were put to him during his examination under section 342, Cr.
The objection that he could not be convicted under section 161 simpliciter was not raised in any of the courts below.
No prejudice has, therefore, been caused to him because of this technical defect of there being no express charge under section 161 simpliciter, and the irregularity if any, is cured under section 537, Cr.
P.C. [1061B D]