judgement:
Civil Appeal No. 1455 of 1969 Appeal by Special Leave from the Judgment and Order dated 7 12 1967 of the Punjab and Haryana High Court in F.A.O. No. 10 of 1963.
Hardev Singh and R. section Sodhi for the Appellants.
R. A. Gupta for Respondent No. 1.
V. C. Mahajan, Naunit Lal and Kailash Vasdev for Respondent No. 2.
The Judgment of the Court was delivered by KAILASAM J.
This appeal is by special leave granted by this Court to Bishan Devi widow of late Bhagwan Das and her four children against the judgment and order dated 7th December, 1967 of the High Court of Punjab & Haryana dismissing the Claimants ' F.A.O. No. 10 of 1962 against the award of Punjab Motor Accidents Claims Tribunal, Chandigarh, dismissing their claim.
The appellants filed a petition on 4th September, 1961 before the Chairman, Motor Accidents Claims Tribunal, Punjab, Chandigarh alleging that the husband of the first appellant died by having been run over by a lorry at midnight between the 8th and 9th July, 1961, at about a distance of 60 feet from the road.
It was alleged that the truck was coming from Jullundur and it took a sudden turn and ran over the first appellant 's husband, Shri Bhagwan Das, and that it was being driven in a rash and negligent manner.
The appellants 2 to 5 were the minor children of the first appellant, all of them being below 11 years 303 of age on the date of the filing of the petition.
It was alleged that the monthly income of the deceased was Rs. 109/ per month and a claim was made for Rs. 50,000 as compensation.
The respondents to the petition were (1) Sirbaksh Singh and (2) The Motor Owners ' Mutual Insurance Co. Ltd., Belgaum the insurer.
The written plea was filed by the second respondent, the insurer, on 10th October, 1961.
Some of the pleas are noteworthy and it is necessary to set them out in some detail.
In para 4 the insurer pleaded that the "truck was stolen by somebody while it was standing.
A report to the police was made to this effect.
Whoever made this accident, if any, drove the truck without the consent of the owner, and, therefore, the respondents are not liable".
In its reply parawise in paragraph 1 it reiterated "This truck did not meet with any accident nor was any intimation sent to the replying respondent".
In paragraph 2 it was again reiterated "No accident took place as alleged.
Somebody stole away the truck without the knowledge of the owner or driver.
The respondents are not liable to pay any compensation.
The person liable is the person who was driving the truck at the relevant time and not the owner.
" In paragraph 11 it was pleaded "that the replying respondent is, in any case, absolved from any possible liability in connection with the alleged accident under the provisions of Sections 95 and 96(2) of the ".
In paragraph 12 it was stated that the "offending vehicle was being driven at the relevant time by a driver who had no driving licence and was not even an authorised driver of respondent No. 1, as he had stolen the truck and the owner is therefore not liable".
Again in paragraph 13 the insurer pleaded that the "truck at the time of the accident was being unauthorisedly used and driven without the permission or authority of the owner.
As the truck was being used without the authority of the owner, therefore, the owner is not vicariously liable for the tort.
The replying respondent is, therefore, also not liable." The first respondent, the owner of the vehicle filed his written statement on 16th November, 1961.
In his statement he stated while dealing with the merits in paragraph 1 that "this truck did not meet with any accident nor was any intimation sent to the replying respondent".
In paragraph 2 he stated that "No such accident occurred as alleged in which the husband of the applicant may have been killed due to the negligence of the driver of respondent No. 1.
Allegation of negligence on the part of the driver is denied as incorrect.
" On these pleadings parties went to trial.
The claimants examined 5 witnesses AWs 1 to AWs 5.
AW. 1 is Bachan Singh.
He was sleeping on the night of occurrence on the roof of the Trade Union Office.
The witness and others heard hue and cry at night when the offending truck 304 ran over the deceased.
Bachan Singh and others came down and extricated the deceased and two other persons from underneath the truck.
The deceased died at the spot and two other injured were removed to the Civil Hospital, Jullundur.
AW. 2 is Darshan Singh.
He stated that he was sleeping in his truck on the night of the accident.
He on hearing the alarm got up and saw the two constables where the accident had taken place.
Bhagwan Das was extricated from underneath the truck with two other injured persons.
Bhagwan Das died at the spot.
According to the witness the accident took place at 2 A.M. and the deceased was carried in the same offending truck to the hospital.
AW. 3 is not a material witness as he does not speak of the incident but only saw the dead body and identified it.
AW. 4 is Shiv Charan Das.
He and another constable were on patrol duty on the night of the occurrence.
At 1 a.m. the truck came from Jullundur side at a fast speed and turned towards the adda of the Union.
Three persons including the deceased were sleeping on the kacha on cot which were run over.
The deceased was injured seriously.
He along with others were removed to the Civil Hospital, Jullundur, in the same truck.
The witness lodged the F.I.R. with the A.S.I. who came at the spot from Kartarpur.
In cross examination the witness stated "So far as I remember Anoop Singh had no driving licence." AW. 5 was on patrol duty along with AW. 4 and at about 1 a.m. he saw the truck coming from Jullundur side with registration No. PNJ 6430 at a fast speed.
The truck turned to its left and overran the three cots on which three persons were sleeping and struck against the door of union office.
The sleepers on the cots were injured and Bhagwan Das had died subsequently.
According to the witness one Anoop Singh was driving the truck.
In cross examination he stated "I do not know if Anoop Singh possessed the driving licence".
On the side of the respondents three witnesses RWs.
1 to 3 were examined.
1 is the owner of the vehicle.
He stated that on the night of the occurrence they drove the truck from Jullundur to Jallowal, his village, and parked it at 11.30 p.m. on the roadside.
They left the truck and slept in their houses.
They were informed by one Ishar Singh that the truck was missing.
They left in search of the truck at about 1 a.m. at Bhogpur.
At Bhogpur they learnt at 1.30 a.m. that the said truck was involved in an accident.
He did not know who removed the truck.
Though he went to report the loss of the truck to the police, as he learnt that the truck was caught in an accident he did not go to the police station and lodge the report about the theft of the vehicle.
He denied that Anoop Singh was driving the truck and caused the accident.
2 is Anoop Singh.
He stated that he did not know driving 305 and had not driven the truck in question nor did he cause any accident.
The evidence of RW.
3 is not material.
On the pleadings and the evidence referred to the Motor Accidents Claims Tribunal came to the conclusion that the claimants had failed to establish the identity of the driver and that the claimants were not even aware of the name of the driver who had driven the offending truck.
Thus the applicants had failed in proving their case.
In view of this finding the Claims Tribunal observed that it had no other alternative but to decide the issue against the applicants.
Because of this finding it felt it was not necessary to discuss the other issues.
The appeal by the claimants was rejected by the High Court.
The High Court agreed with the finding of the Claims Tribunal and observed that "There is no doubt that the evidence on record is not enough to show that Anup Singh or any other person directly or tacitly authorised by Sirbaksh was driving the truck at the time of accident.
Anup Singh as is evident from the material on the record did not possess the driving licence.
It is difficult to believe that Sirbaksh Singh could have allowed him to drive his truck without a driving licence.
" Holding that the truck was stolen by some irresponsible person who did not know driving and caused the accident by his reckless driving the High Court found that the owner of the truck cannot be held to be responsible.
It is distressing to note that neither the Claims Tribunal nor the High Court considered the relevant evidence in the case.
The claim was rejected by the Tribunal on the ground that the identity of the driver had not been established and by the High Court on the ground that "It is evident that Anoop Singh did not possess a driving licence and that the truck was stolen by some irresponsible person who did not know driving and that the owner cannot be held to be responsible".
We cannot help observing that the plea put forward by the insurer is on the face of it frivolous and totally unacceptable.
According to the insurer by his written statement which was filed on 10th October, 1961 a month before the written statement of the owner was filed, it was pleaded that somebody stole away the truck without the knowledge of the owner or the driver.
It was further contended that the vehicle was being driven at the relevant time by a person who had no driving licence and was not even an authorised driver of respondent No. 1 as he had stolen the truck.
The plea of the owner in his written statement which was filed on 16th November, 1961 more than a month thereafter is that "This truck did not meet with any accident nor was any intimation sent to the replying respondent".
It may be noted that in this written statement which was filed after a fairly long interval there is no allegation by the owner that the truck was stolen.
We do not know 306 on what basis the insurer about a month before the written statement was filed by the owner alleged that the truck was stolen without the knowledge of the owner or the driver.
While the owner did not complain about any theft of the vehicle the insurer professes further knowledge that the vehicle was driven by somebody who had no driving licence without the authorisation of the owner.
The F.I.R. was lodged at the police station at 4 30 a.m. at Kartarpur which is 12 miles from the scene of occurrence.
The occurrence took place at about 2 a.m.
In the F.I.R. which was lodged without any delay, Shivcharan Das Constable, who is examined as AW. 4 stated that he was on patrol duty along with Joginder Nath and when they reached the pucca road near Truck Stop Union Bhogpur the truck No. 6430/PNJ which was being driven by Anoop Singh driver at a very fast speed and carelessly, came and turned to the left below the road towards Truck Union.
The truck overran the three cots and collided against the doors of the room of Truck Union Office and stopped.
All the three cots were smashed and the three persons sleeping over them were seriously injured.
He further stated that Anoop Singh ran away leaving the truck.
The injured along with the deceased were taken to the Civil Hospital Bhogpur for treatment.
As the doctor was not present the two injured were taken to Jullundur in the same truck.
The F.I.R. was immediately registered.
This witness in his evidence corroborated what he stated in the F.I.R. The evidence of A.W.4 was also corroborated by the testimony of AW. 5, Joginder Nath, who was on patrol duty along with AW. 4.
He stated that at about 1 a.m. a truck came from Jullundur side with registration No. PNJ 6430 with fast speed.
It turned to its left and overran the three cots in which three persons were sleeping and struck against the door of the Union 's office.
The Motor Accidents Claims Tribunal rejected the evidence of AWs.
4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised the driver.
The evidence of AW. 4 was rejected as he failed to identify Anoop Singh.
5 stated that he knew Anoop Singh and that it was he who was driving the truck and that Anoop Singh ran away after causing the accident.
Neither AW. 4 nor AW. 5 was asked that they would not have been in a position to see the driver as they were about 30 to 40 yards away when the accident took place.
According to AW.
4 the deceased and the other injured were removed to the Bhogpur hospital and from there to the Jullundur hospital in the same truck.
We fail to understand the basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established.
Equally, unacceptable is the conclusion of the High Court that "as suggested by the counsel for the respondents the truck was stolen by some irres 307 ponsible person who did not know the driving and by his reckless act caused the accident.
" There has been practically no discussion of the evidence of AWs.
4 and 5.
There is no reference to the prompt F.I.R. lodged by AW. 4 who was on patrol duty wherein the material particulars about the incident and the driver have been furnished.
The suggestion made by the counsel for the respondents that the truck was stolen, as pointed earlier, was not pleaded by the owner of the vehicle even though he filed his written statement on 16th November, 1961, about a month after the date of the occurrence.
All that the owner stated was that the truck did not meet with any accident.
When he was examined he stated that he parked the truck at 11 30 p.m. on the roadside but when he returned he found the truck missing.
He left in search of the truck at 1 a.m. and learnt at 1 30 a.m. that the truck was involved in an accident.
Though he went to report the loss of the truck as he learnt that it was involved in an accident he did not go to the police station and lodge a report regarding theft.
This statement is directly contrary to what he stated in the written statement that the truck did not meet with any accident.
The insurer who filed his written statement a month before the owner filed the written statement stated that the truck was stolen by somebody and that a report to the police was made to this effect.
No such report was ever made to the police and this statement is clearly false.
Later in the course of the statement the insurer stated that the truck did not meet with any accident.
He further went to the extent of stating that somebody stole away the truck without the knowledge of the owner of the driver, and that if at all it is only the person who was driving the truck who is liable and not the owner.
It is significant to note that no one was examined to substantiate the facts alleged in the written statement of the insurer.
The insurer was not satisfied with the above mentioned false, frivolous and irresponsible allegations.
He proceeded to state that the driver who was driving the vehicle did not have a driving licence and was not the authorised driver of the owner as he had stolen the truck.
Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence.
We are constrained to state that the plea taken by both the owner and the insurer is palpably false and made without any sense of responsibility with a view to somehow escape the liability.
It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner.
There is no finding by the Claims Tribunal that the truck was driven by an unauthorized person.
The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know the driving.
The High Court has stated "Anoop Singh as is 308 evident from the material on record did not possess the driving licence".
The evidence that Anoop Singh was driving the vehicle was given by AWs.
4 and 5, the policemen on patrol duty.
According to AW.
4 the truck was driven by Anoop Singh.
In fact in his F.I.R. he stated that it was Anoop Singh who was driving the truck.
In cross examination the witness stated that the case against Anoop Singh is still pending in the court and as far as he could remember he had no driving licence.
5 when questioned stated: "I do not know if Anoop Singh possessed the driving licence".
According to the owner Anoop Singh was not the driver and it was wrong to say that Anoop Singh was driving the truck and caused the accident.
Anoop Singh when examined as RW.2 stated that he did not know driving and had not driven the truck in question nor did he cause any accident.
As we have pointed out earlier the evidence of the owner of the truck is totally unreliable.
The evidence of RW. 2 is self serving and is made with a view to escape the prosecution that was launched against him.
The only material about Anoop Singh not having a driving licence is the statement of AW. 4 in cross examination that he did not remember whether Anoop Singh had a licence and that of AW. 5 that he did not know whether Anoop Singh possessed the driving licence.
It is surprising that the High Court observed "It is evident from the material on record that Anoop Singh did not possess the driving licence." Under Sec.
96(2) (b) (ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed.
Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed.
The evidence of AWs.
4 and 5 who have been examined clearly establishes that Anoop Singh was driving the vehicle.
The two stray suggestions and the reply given by the two witnesses is not sufficient to establish that Anoop Singh was not licensed to drive a truck.
It is the duty of the insurer to have substantiated his plea.
We have no hesitation in rejecting the insurer 's plea as false especially as the owner who filed the written statement a month later did not support the former 's plea.
The deceased at the time of his death was working as Patwari and was drawing Rs. 109/ p.m. as his salary.
The wife of the deceased Bishan Devi as AW. 6 has deposed that the deceased was drawing a salary of Rs. 109/50 per month out of which he used to handover Rs. 100/ to her for household expenses.
The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased.
In the circumstances we feel that a compensation of Rs. 20,000/ and costs of 309 Rs. 2,500/ in all the courts is payable by the two respondents to her and the four children.
The wife and the four children will take the amount equally.
The amount of Rs. 20,000/ will bear interest at 6% per annum from the date of the claim i.e. from 4th September, 1961.
There will be a joint decree against both the respondents.
The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal.
The victim in this case Bhagwan Das was run over by a Motor vehicle on the night between 8th and 9th July, 1961 leaving behind him his wife Bishan Devi and four minor children.
For Eighteen long years they have been before courts asking for some compensation for the death of their bread winner due to rash and negligent driving of a motor vehicle.
One is tempted to remark that they would have been better of but for their hope of getting some relief in courts.
They not only had to spend their time in courts but to borrow to fight for their rights.
It is common knowledge that such helpless and desperate condition is exploited by unscrupulous persons who manage to get away with the bulk of the compensation money if and when the claimants succeed in getting it.
The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving.
The burden thus placed is very heavy and difficult to discharge by the claimant.
The records of police investigation are not made available to the Tribunal.
The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming to a proper conclusion.
The insurance company in quite a few cases, as in the present one, takes an unreasonable stand and raises all sorts of untenable pleas just to thwart relief to the dependants.
In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law.
Due to the inordinate delay in disposal of claim petitions before the motor Claims Tribunal the badly needed relief to the claimants is not available for several years.
Further time is taken in appeals.
All along the dependants will have to carry on without any relief.
It has been time and again pointed out by courts that insistence of proof of rash and negligent driving causes considerable hardship on the claimants.
We may point out that repeated suggestions have been made by this Court and several High Courts expressing the desirability of bringing a social insurance which would provide for direct payment to the dependants of the victim.
This Court in Minu B. Mehta and Anr.
vs Balkrishna Ramchandra Nayan and Anr. has referred to the deci 310 sion of the Kerala High Court in Kasavan Nair vs State Insurance Officer where the High Court expressed itself thus: "Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.
" The Madras High Court in M/s. Ruby Insurance Co. Ltd. vs V. Govindaraj and Ors. has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250/ to Rs. 300/ a month.
In a recent decision in the State of Haryana vs Darshan Devi & Ors.
this Court observed: "Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no fault liability and on the spot settlement of claims should become national policy.
" Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today.
It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases.
The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents.
When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained.
The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled.
The insurance companies are now nationalised and the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there.
Regular monthly payment could be made through one of the nationalised banks nearest to the place of residence of the dependants.
Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured.
Ordinarily in arriving at the lump sum payable, the Court takes the figure at about 12 years payment.
Thus in the case of monthly compensation of Rs. 250/ payable, the lump 311 sum arrived at would be between 30,000/ and 35,000/ .
Regular monthly payment of Rs. 250/ can be made from the interest of the lump sum alone and the payment will be restricted only for the period of dependency of the several dependants.
In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation.
It may also be provided that if the dependants are not satisfied with the minimum compensation payable they will be at liberty to pursue their remedies before the Motor Accident Claims Tribunal.
N.V.K. Appeal allowed.

summary/full:
The appellants in their claim petition, before the Motor Accidents Claims Tribunal, claimed Rs. 50,000/ as compensation alleging that the husband of the first appellant was run over by a truck which was driven in a rash and negligent manner.
Appellants 2 to 5 were the minor children of the first appellant.
The claim was contested by the owner of the truck, Respondent No. 1 and the insurer, Respondent No. 2.
A written plea was filed by the second respondent contending that the truck had been stolen by somebody while it was standing, that a report to the police had been made to this effect and that the truck was driven without the consent of the owner and consequently the respondents were not liable.
It was further pleaded that the replying respondent was absolved from any possible liability in connection with the alleged accident under the provisions of Ss. 95 and 96 (2) of the .
The first respondent in his written statement filed about a month after that of the second respondent, contended that the truck did not meet with any accident nor was any intimation sent to the replying respondent.
The Motor Accident Claims Tribunal, came to the conclusion from the pleadings and evidence that the claimants had failed to establish the identity of the driver and the claimants not even being aware of the name of the driver who had driven the offending truck, had failed to prove their case and rejected the claim.
The appeal of the claimants to the High Court was rejected, the High Court agreeing with the finding of the Claims Tribunal and further holding that the truck was stolen by some irresponsible person who did not know driving and by reckless driving caused the accident and therefore the owner of the truck cannot be held responsible.
Allowing the appeal, ^ HELD: 1.
According to the insurer by his written statement which was filed a month before the written statement of the owner it was pleaded that somebody stole the truck without the knowledge of the owner or the driver.
The plea of the owner in his written statement filed more than a month there after, was that the truck did not meet with any accident.
While the owner did not complain about any theft of the vehicle, the insurer professed further knowledge that the vehicle was driven by somebody who had no driving licence 301 and without the authorisation of the owner.
Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence.
The plea taken by both the owner and insurer is palpably false and made without any sense of responsibility with a view to somehow escape liability.
It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner.
[305 F H, 306B, 307G] 2.
There is no finding by the Claims Tribunal that the truck was driven by an unauthorised person.
The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know driving.
According to AW 4 the truck was driven by RW 2.
In fact in the F.I.R., AW 4 stated that it was RW 2 who was diving the truck.
In cross examination he stated that the case against RW 2 is still pending in the court and as far as he could remember he had no driving licence.
The evidence of the owner of the truck is totally unreliable.
The evidence of RW 2 is self serving and is made with a view to escape the prosecution that was launched against him.
It is therefore surprising that the High Court observed that it is evident from the material on record that RW 2 did not possess the driving licence.
[307H 308D] 3.
Under section 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed.
Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed.
The evidence of AWs.
4 and 5 clearly establishes that R.W. 2 was driving the vehicle.
[308E F] 4.
The Motor Accident Claims Tribunal rejected the evidence of AWs.
4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised R.W. 2 (driver).
The evidence of AW 4 was rejected as he failed to identify RW 2.
AW 5 stated that he knew RW 2 and that it was he who was driving the truck and that he ran away after causing the accident.
The basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established is not acceptable.
Equally unacceptable is the conclusion of the High Court that as suggested by the counsel for the respondents the truck was stolen by some irresponsible person who did not know driving and by his reckless act caused the accident.
There has been no discussion of the evidence of AWs 4 and 5.
[306F G, H 307A] 5.
The deceased at the time of his death was working as a Patwari and was drawing Rs. 109/ per month as his salary, out of which he used to handover Rs. 100/ to Appellant No. 1 for household expenses.
The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased.
Rs. 20,000/ as compensation and Rs. 2,500/ as costs awarded.
[308H 309A] 6.
The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal.
The law as it exists, requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving.
The burden thus placed is very heavy and difficult to discharge by the claimant.
The records of police investigation are not made available to the Tribunal.
The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist it in coming to a proper conclusion.
The insurance company in quite a 302 few cases, takes an unreasonable stand raises all sorts of untenable pleas just to thwart relief to thee dependants.
In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law.
It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases.
[309B, E F, 310E] 7.
The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents.
When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained.
The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled.
The insurance companies being nationalised the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there.
Regular monthly payments could be made through one of the nationalised banks nearest to the place of residence of the dependants.
Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured.
[310E G] Minu B. Mehta & Anr.
vs Balkrishna Ramchandra Nayan & Anr., 1977.
Accidents Claims Journal 118; State of Haryana vs Darshan Devi & Ors., 1979 Accidents Claims Tribunal 205; referred to.


judgement:
: Special Leave Petition (Crl.) No. 2088 of 1979.
From the Judgment and Order dated 25 7 1979 of the Allahabad High Court in Criminal Revision No. 1189/79.
N. Ali Khan and A. D. Mathur for the Petitioner The Judgment of the Court was delivered by KRISHNA IYER, J.
Counsel for the petitioner states that the sentence imposed upon his client for the offence under section 7 read with section 16 of the Prevention of Food Adulteration Act must be reduced because the adulterant, namely, prohibited coal tar dye, is, in his submission, non injurious or an innocent mix.
Therefore, the imprisonment part of the sentence, it was urged, should be eliminated.
It is true that the High Court has observed that the "colour which was mixed with powdered chillies" is not mentioned in the Public Analyst 's report to be injurious to human life.
It does not follow that because it is not specifically mentioned to be injurious, it is non injurious.
Absence of evidence is not equal to evidence of absence.
For ought we know, the prohibition under the Act and the Rules has been imposed because it is harmful to human health.
It is true that the High Court has, under a mis conception, reduced the sentence, but we cannot be pressurised further into following the wrong path.
The special leave petition is dismissed.
V.D.K. Petition dismissed.

dataset_name: IN-Abs

summary/full:
HELD: The prohibition under the Prevention of Food Adulteration Act and the Rules has been imposed because it is harmful to human health.
[312 G] Absence of evidence is not equal to evidence of absence.
Non mention in the Public Analyst 's report that the "colour which was mixed with powdered Chillies" was injurious to human life does not amount to the adulterant being non injurious.
When the High Court under this misconception has already reduced the sentence, this Court cannot under article 136 of the Constitution be pressurised further to follow the wrong path.
[312 F H]


judgement:
N: Criminal Appeal No. 105 of 1978 with W.P. No. 833 of 1978.
(Appeal by special leave from the Judgment and order dt.
27.9.77 of the Gujarat High Court in Criminal Spl.
Application No. 176 of 1977) .
Ram Jethmalani and H. section Parihar for the appellant in Cr. A. No. 105 and WP No. 833/78.
M. N. Phadke and B. D. Sharma and M. N. Shroff for respondent No 1 Girish Chandra for respondent no 4.
M. N. Shroff for respondents 1 3.
R.B.Datar and Miss A. Subhashini for respondents 4 5.
The Judgment of the Court was delivered by KAILASAM, J.
After hearing the arguments we allowed the appeal on 5 10 1978 and directed that the detenu be set at liberty forthwith indicating that the detailed judgment would follow.
We now proceed to give reasons for our order.
This appeal is preferred by the wife of one Virendra Ramniklal Kapadia,, a detenu, by special leave against the judgment of the High Court of Gujarat at Ahmedabad dismissing the writ petition for the issue of a writ of habeas corpus.
On 22nd September, 1974 the District Magistrate, Surat, directed.
the detention of the detenu under section 3(1) (c) (i) and section 3 (2) of the .
The detenu was supplied with the grounds of detention on 27th September, 1974.
The 259 detention order passed under the A was cancelled on 9th December, 1974 and the detenu was released.
On 7th February, 1977 by an order under section 3(1) of the (hereinafter referred to as COFEPOSAA) in the name of Governor, the Under Secretary to Government, respondent 2, directed that it was necessary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods.
On the same day by another order issued under section S of the COFEPOSAA the 2nd respondent directed that the detenu shall be detained in the Ahmedabad Central Prison.
A declaration under section 12A, sub section (2) was also passed on the same day by the 2nd respondent stating that it was necessary to detain the detenu for dealing effectively with emergency.
In pursuance of the above orders the detenu has been detained in the Ahmedabad Central prison after he surrendered on 4th July, 1977.
The grounds of detention were supplied to him on 6th July, 1977.
On 2nd August, 1977 a declaration under section 9 of the COFEPOSAA was passed by the 4th respondent stating that he was satisfied that the detenu is likely to I) engage in transporting smuggled goods in the areas around Balashwar and Sachin Gabheni Road in the State of Gujarat which are areas highly vulnerable to smuggling as defined in section 9 of the COFEPOSAA.
The High Court negatived all the contentions raised on behalf of the detenu and held that the order of detention was validly made.
Mr. Ram Jethmalani, the learned counsel for the appellant, raised various contentions.
The first contention raised by him is that the order passed under section 9 by the 4th respondent is bad because on the face of it, it discloses that the satisfaction arrived at by him is mechanical and Without application of his mind.
As the detention is continued beyond the period of one year only by virtue of the order made under section 9 the detenu is entitled to be set at liberty if the order is found to be invalid.
On hearing the learned counsel for the appellant and Mr. Phadke on behalf of the State, we are satisfied that the contention on behalf of the detenu has to be accepted.
Before dealing with this point we would just mention the other grounds raised by the learned counsel for the appellant.
It was submitted that the order passed under section 3 is invalid as the authority did not apply its mind.
The. detenu was released on 19th December, 1974 and from that date till 7th February, 1977 when the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity.
As the order was based on the activities of the detenu in 1973 and 1974 before the detenu was released, the order of detention cannot be sustained.
It was next submitted that 260 the detenu was not furnished important material which must have influenced the detaining authority.
Lastly, it was submitted that the grounds given are vague and even after a careful reading of the grounds, it is not clear as to whether the grounds referred to the incidents that took place in 1973 and 1974 only refer to activities subsequent to his release in December, 1974.
As we are upholding the challenge of the learned counsel for the appellant on the validity of the order passed under section 9(1) of the COFEPOSAA we refrain from dealing with any of the other contentions.
The order dated 2nd August, 1977 passed by B. B. Gujral, Addl.
Secretary to the Government of India, the 4th respondent under section 9(1) of th COFEPOSAA is marked as Annexure E '.
It runs as follows : "Whereas Virendra Ramniklal Kapadia @ Kumar has been detained on 4th July, 1977 in pursuance of order No. SB.
IV/PSA,2876.87(i) dated the 7th February, 1977 of the Government of Gujarat with a view to preventing him from engaging in transporting smuggled goods.
AND WHEREAS I, the undersigned, specially empowered in this behalf by the Central Government, have carefully considered the material bearing on the matter in my possession; NOW, THEREFORE, I, the undersigned, specially empowered by the Central Government, hereby declare that I am satisfied that the aforesaid Virendra Ramniklal Kapadia @ Kumar engages and is likely to engage in transporting smuggled goods in the areas around Baleshwar and Sachin Gabheni Road in the State of Gujarat, which are areas highly vulnerable to smuggling as defined in explanation to section 9(1) of the .
" In paragraph 3 respondent 4 declared that he is satisfied that the detenu engages and is likely to engage in transporting smuggled goods in vulnerable areas as defined in explanation section 9 (1) of the COFEPOSAA.
It was submitted that there is no material on record on which the 4th respondent could have been satisfied that the detenu "engages and is likely to engage in transporting smuggled goods".
The impugned order refers to the order of detention dated 7th February, 1977 of the Government of Gujarat.
The order of 7th February, 1977 refers to the consideration of the Government of Gujarat as to whether the detention is necessary for dealing effectively with the emergency referred to in sub 261 section (2) of section 12 A of the Act and states that on a consideration A of the materials the Government of Gujarat was satisfied on the basis of information and material in its possession that it was necessary to detain the said person for dealing effectively with the said emergency.
In exercise of its powers under sub section (2) of section 12 A the Government declared that it is necessary to detain the detenu for dealing effectively with the said emergency.
On the same date the grounds on which the detention was ordered were sent to the detenu through the Superintendent of the Jail.
The ground that is alleged against the detenu in paragraph 1 of the order is as follows: "1.
As per the intelligence gathered by the Customs officers, you were an associate of a notorious smuggler Mohmed Kutchi of Surat; that you were engaged in piloting smuggled goods loaded in trucks from the place of landing to the place of storage." (underlying ours).
To incidents are given: one relating to an incident on 6th August, 1974 and the other to an incident on 25 August, 1974.
It is further stated that the Customs, officers contacted one Karltilal Amratlal Thakkar, who was working as accountant of Mohmed Kutchi.
Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated that the detenu was under the employment of the aforesaid Mohmed Kutchi and was getting a salary of Rs. 5,000 p.m. for ar ranging landing of contraband goods.
Kantilal further disclosed that in the year 1973 the detenu had accompanied one Mohmed Bilal with foreign currency.
Reference is also made to the statements recorded from one Mohmed Bilal Haji Usmangani on 8th Novemher, 1976 and 9th Novemher, 1976 before the Customs officers wherein it was stated that the detenu was one of the trusted men of the aforesaid Mohmed Kutchi and always remained with him and used to he1p Mohmed Kutchi in managing his smuggling activities.
The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery of smuggled fabrics.
The statement of one Ramchandra Schedeva Rajbher is also referred to.
According to the statement dated 11th october, 1976 it was stated that the detenu remained present along with one Umer Ibrahim Billimoria and his gang at Kadodra/kamraj near poultry farm where trucks loaded with camouflaged consignments were being fed with smuggled cargo.
A reading of these grounds makes it clear that the incidents referred to relate to the years l973 and 1974 and that due to examination of three persons Kantilal Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra Sahadeva Rajbher, fuller particulars regarding the activities of the 262 detenu came to be known prima facie it appears that the information which the Customs authorities received related to the activities of the detenu in 1973 and 1974.
Mr. Phadke, the learned counsel appearing on behalf of the State, submitted that the statement shows that the activities of the detenu after 1974 were also included in the grounds furnished for detention.
In order to satisfy ourselves as to whether the statements related to incidents after 1974, we perused the statements made by all the three persons referred to.
.It is very clear that the statements do not relate to any incidents after 1974 but only to the activities of the detenu in 1973 and 1974.
In the affidavit filed by the 4th respondent" Additional Secretary to the Government of India, it is stated in paragraph 5 of his affidavit that he considered the detention order, grounds of detention relating to the detenu as well as the report in respect of the detention order by the State Government under section 3(3) and was personally satisfied that the detenu Virendra Ramniklal Kapadia @ Kumar engages and is likely to engage in transporting smuggled goods* Mr. P. M. Shah Under Secretary to the Government of Gujarat, in paragraph 10 of his affidavit stated that "fresh material showing the involvement of the detenu in the activity of transporting smuggled goods was collected by the Customs authorities and therefore it was open to the State Government to pass a fresh order of detention.
Further, he stated "As pointed out in the grounds material indicating the involvement of the detenu in the incidents of 6.8.74 and 25 8 74 and his close association with Shri Mohmed Kutchi,* a notorious smuggler, came to be known in october, November and December, 1976 x x x x I say that the material on the basis of which the detenu was earlier detained was scanty and no new material indicating involvement of the detenu as alleged against him came to the light till october, 1976".
The case for the State. appears to be that they regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in october, 1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974.
This would indicate that for the fresh order of detention the basis was availability of fuller details regarding clients on which the earlier detention was ordered.
It is seen that the High Court also proceeded on the basis that further information obtained in october, November 1976 related to the incidents in the years 1973 and 1974.
The High Court observed, "It is no doubt true that some of the, activities attributed to the detenu were of August, 1974.
However, the ground that the detenu was in regular employment of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention, *Emphasis Sppluied 263 and which fact has been disclosed from the statement of one Kantilal Amratlal Thakkar recorded on November 7, 1976, clearly indicates the connection of the detenu with the said notorious smuggler.
The other statements, which have brought home the involvement of the detenu with the aforesaid Mohmed Kutchi and which also attribute the prejudicial activity to the detenu, were recorded somewhere in october and November, 1976.
" We are unable to read the above passage as meaning that reliance was placed on fresh incidents relating to the detenu after December.
The detenu was detained on 22nd September, 1974 and was released on 9th December, 1974.
Further information about the activities of the detenu during the period 1974 obviously before his arrest on 22nd September, 1974 came to light in october and November, 1976.
But it is seen that the fresh order of detention under the COFEPOSAA was not passed till 7th February, 1977.
If the authorities were in possession of any activities of the detenu after his release on 9th December, 1974 action would have been taken.
It is only the statements that were recorded in October and November 1976 which led the authorities to pass the fresh order of detention on 7th February, 1977.
We have seen from the statements recorded in october and November, 1976 that no incident that took place after 1974 has been referred to.
The High Court observed that it cannot be urged that reasonable nexus between the prejudicial activity and the purpose of detention has been snapped by the time lag rendering the impugned order of detention as one Without genuine satisfaction of the detaining authority.
Whether the time lag between August, 1974 and February, 1977 is enough to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of the case.
It may be that a person in the position of a detenu who was a driver of a well known smuggler on a pay of Rs. 5,000 p.m. and who was taking part in clearing the smuggled goods may satisfy the authority that he is likely to continue in his activities in the future and as such would justify his detention.
In Gore vs State of West Bengal(1) this Court after referring to the earlier decisions held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
The : question is whether the past activities of the detenu are such that the .
detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities.
If the detaining authority in this case had came to the conclusion taking into account the past (1) ; 264 activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere.
It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities.
In this case, the 4th respondent who passed an order under section 9(1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods.
What he has stated is that the detenu "engages and is likely to engage in transporting smuggled goods '.
There was no material before the 4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods.
To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities.
The detenu has been under detention from 4th July, 1977 and the period of detention permissible under section 3 is only one year.
Section 9(1) enables the authority to make a declaration which would have the effect of extending the period of detention to two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 1976.
As we have found that the order under section 9(1) has not been validly made and as the detenu has been in detention for more than one year his continuance in detention is not sustainable.
In the circumstances, we allow the petition.
P.B. R. Appeal allowed.

summary/full:
The appellant was detained under the in September, 1974 but was released in December, 1974.
In February, 1977 he was detained under section 3(1) of the , on the ground that he was "likely to engage in transporting smuggled goods".
One of the grounds of .detention stated: "you were an associate of a notorious smuggler, that you were engaged in piloting smuggled goods loaded in trucks from the place of landing . " In support of the above, two instances were mentioned: one relating to an incident on 6th August, 1974 and another on 25th August, 1974.
In the appellant 's writ petition the High Court observed (1) that although some of the activities attributed to the detenu related to August 1974, the fact that the detenu was in illegal employment of a notorious smuggler under detention clearly indicated that there was connection between him and the smuggler and (2) that a reasonable nexus between the prejudicial activities and the purpose of detention could not be said to have been snapped by the time lag rendering the impugned order of detention as one without genuine satisfaction of the detaining authoritY.
In appeal to this Court it was contended on behalf of the appellant that the order of detention was bad, in that it disclosed that the satisfaction arrived at by the detaining authority was mechanical and without application of his mind.
Allowing the appeal, ^ HELD: (1) It is clear from the record that the instances alleged do not relate to any incident after 1974 but only relate to the activities of the detenu in 1973 and 1974.
Even though information about the activities of the detenu during the year 1974 came to light in october and November, 1976, a fresh order of detention under the Act was not passed till February, 1977.
If the authorities were in possession of any activities of the detenu after his release in December, 1974 action would have been taken.
it is only the statements that .were recorded in october and November 1976 which led the authorities to pass a fresh order of detention in February, 1977.
From the statements recorded in october and November, 1976 no incidents are shown to have taken place after 1974.
[262B; 263C D] 258 (2) Whether the time lag between August 1974 and February 1977 is enough to snap the reasonable nexus between the prejudicial activities and the purpose of detention would depend upon the facts of the case.
If the detaining authority had come to the conclusion, taking into account the past activities of the detenu, that he was likely to continue to indulge in his unlawful activities in future there would be no justification for this Court to interfere.
It is quite likely that persons who are totally involved in such activities as smuggling can cause a reasonable apprehension in the mind of the detaining authority that they are likely to continue in their unlawful activities.
But in the instant case the detaining authority passing the order has not stated that he was satisfied that the detenu was likely to engage in transporting smuggled goods.
What he has stated was that the detenu "engages" or is "likely to engage" in transporting smuggled goods.
There was no material before the detaining authority for coming to the conclusion that the detenu was "engaging" himself in unlawful activities.
[263F; 264A C]


judgement:
Civil Appeal Nos.
2411 2427 and 2431 2440 of 1969.
Appeals by Special Leave from the Judgment and Order dated 5 11 1968 of the Gujarat High Court in S.C.A. Nos.
570/63, 629, and 634/63.
283 286 of 1966 and 287 296 and 300 309/66.
G. A. Shah and M. N. Shroff for the Appellant.
D. V. Patel, I. N. Shroff, P. V. Hathi and H. section Parihar for the Respondents.
The Judgment of the Court was delivered by SEN J.
These twenty seven appeals, by special leave, directed against judgment of the Gujarat High Court dated November.
5 1968 raise a common question and are, therefore, disposed of by this common judgment.
The short question involved in these matters relates to interpretation of section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, "the Taluqdari Abolition Act", and section 7 of the Bombay Personal Inams Abolition Act, 1952, "the Personal Inams Abolition Act".
In the present appeals, certain facts are no longer in dispute.
The respondents are the erstwhile taluqdars or inamdars what was known as Ghogha Mahal, which now forms part of the Bhavnagar district.
There were vast stretches of hilly tracts described as 'Dunger ', which were incapable of cultivation, but on which there was spontaneous growth of grass.
These lands formed part of their taluqdari estates or inams.
They used to sell the grass growing on these 236 lands and it was a definite source of income to them.
It appears that the lands were recorded as Kharaba in the record of rights and, therefore, consequent upon the abolition of taluqdari rights by the Taluqdari Abolition Act and with the Abolition of inams under the Personal Inams Abolition Act, the lands were recorded as having vested in The Government.
Thereupon, the respondents made separate claims before the Mahalkari, Ghogha Mahal, seeking a declaration under section 37(2) of the Bombay I and Revenue Code, 1879 that the lands were neither vacant lands nor uncultivated lands and being in their possession, they become the occupants thereof.
In an enquiry held under section 3(2), the Mahalkari examined the claimants individually, the village talatis and the relevant entries in the records of rights which showed that the taluqdars and inamdars were deriving income from the grass growing on the lands.
It was also in evidence that considerable effort and expenses had to be incurred by them for securing the income of this grass i.e., by keeping watchmen etc.
to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass, but that it grew to full stature so as to give a fair and full yield.
When operation for cutting of the grass used to commence, the stubs were not cut off but were allowed to remain intact so that the next year after The rains, the grass would grow naturally again.
A portion of the grass lands were also kept apart by the respondents for the grazing of their cattle by fencing of the area.
The Mahalkari, Ghogha Mahal by his order dated October 28, 1958 held on this evidence that the lands could not be treated as waste lands or uncultivated lands, and since the respondents were in possession thereof, they became the occupants.
The Collector, Bhavnagar, in exercise of his suo motu powers of revision under section 211 of the Code by his order dated February 28, 1961 set aside the orders of the Mahalkari and held in all these twenty seven cases, that since the lands in question were not being cultivated by taluqdars or inamdars, they must, by reason of Explanation to section 6 of the Taluqdari Abolition Act and Explanation to section 7 of the Inams Abolition Act, be treated to be 'unoccupied lands ', and, therefore, the lands vest in the Government.
The Revenue Tribunal, however, by its two orders dated June 19, 1962 and March 26, 1965, reversed the order of the Collector and restored that of the Mahalkari holding the respondents to be the occupants of the lands in question.
The State Government of Gujarat filed twenty seven writ petitions in the High Court for quashing the orders of the Revenue Tribunal.
237 Agreeing with the Revenue Tribunal, the High Court held that there was evidence that the lands in dispute were not lying desolate, abandoned or barren with no vegetation, but were, in fact, productive lands, in the sense that grass grew naturally and so, they could not be regarded as 'waste lands ', although they were wrongly recorded as such.
It also held that the hilly tracts on which grass grew naturally, by their very nature were unfit for cultivation and, therefore, could not be treated as 'uncultivated lands '.
It relied on the Explanation to the two sections and observed that it contemplates only those lands which could be cultivated but which were left fallow and uncultivated for a continuous period of three years.
In its opinion, the expressions 'waste lands ' and 'uncultivated lands ', therefore, did not cover grass lands on hilly tracts which by their very nature are incapable of cultivation, but which are not useless so as to be not capable of any use.
The question for consideration in these appeals is whether the High Court was right in holding that the respondents, who were taluqdars or inamdars, were entitled to settlement of these grass lands on hilly tracts as 'occupants ' thereof under section 5(1) (b) of the Taluqdari Abolition Act and section 5(2) (b) of the Inams Abolition Act.
Before dealing with the judgment of the Court below, it will be convenient to refer to the scheme of the two Acts and to set out the relevant sections.
The provisions of the two Acts are identical in terms.
It would source, for our present purposes, to generally refer to the provisions of the Taluqdari Abolition Act.
The object and purpose of the Act, as is clear from the preamble, was to abolish the taluqdari rights as a measure of agrarian reform.
Section 3 abolished the taluqdari tenure and extinguished all incidents of the tenure attached to any land comprised in a taluqdari estate save as provided in the Act.
Under section 4, all revenue surveys and settlements made under section 4 of the Gujarat Taluqdars Act, 1888 are deemed to have been made under (Chapter VIII and VIII A of the Land Revenue Code.
By section 5(1)(a) all taluqdari lands are henceforth liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code.
The abolition of the taluqdari tenure, however, did not deprive the taluqdars of the lands in their possession, and section 5(1)(b) provides that a taluqdar holding any taluqdari land shall be deemed to be an occupant within the meaning of the Land Revenue Code or any other law for the time being in force.
Than comes section 6 which provides that all public roads, lanes etc.
, not situate within the wants belonging to a taluqdar, shall vest in the government and all rights 238 held by a taluqdar in such property shall be deemed to have been extinguished.
Section 7 provides for payment of compensation to taluqdars for extinguishment of rights under section 6 Clause (b) (i) thereof provides that if the property acquired is 'waste or uncultivated but is culturable land ', the amount of compensation shall not exceed three the assessment of the land.
Section 14 provides for payment of compensation to taluqdars for extinguishment or modification of any other right where such extinguishment or Modification amounts to transference to public ownership of such lands or any right in and over such land, i.e. in any land other than those in respect of which provision for the payment of compensation has been made under section 7.
The scheme under the Personal Inams Abolition Act is more or less similar.
Section 4 provides that notwithstanding anything contained in any usage, settlement, grant, sanad, or order or a decree or order of a Court or any law for the time being in force (1) all personal inams shall be deemed to have been extinguished, with effect from and on the appointed date; (2) all rights legally subsisting on the said date in respect of such personal inams shall be deemed to have been extinguished, save as expressly provided by or under the provisions of the Act.
Similarly section 5(2) (a) provides that an inamdar in resect of the inam land in his actual possession or in possession of a person holding from him other than an inferior holder referred to in cl.(b), shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant.
Under cl.(b) an inferior holder holding an inam land is entitled to the same rights.
Turning now to section 6 of the Taluqdari Abolition Act and section 7 of the Personal Inams Abolition Act, which are identical in terms, the first thing to be noticed is that they deal with specific properties alone, which arc enumerated therein and in which all the rights of the taluqdars or inamdars are completely extinguished.
Section 6 of the Taluqdari Abolition Act reads: "6.
All public roads, lanes and paths, the bridges ditches, dikes and fences, on or beside, the same, the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nallas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuilt village sit lands, all waste lands and all uncultivated land (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas belonging to a taluqdar in 239 taluqdari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the Commissioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or individuals legally subsisting.
Explanation For the purposes of this section, land shall be deemed to be uncultivated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force".
(Emphasis supplied) On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use.
It leaves the private properties of the taluqdar untouched.
The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar.
It begins by specifying 'All public roads, lanes, paths, bridges, etc. ' and ends up with 'all village site lands, all waste lands and all uncultivated lands '.
and these being public properties situate in a taluqdar 's estate must necessarily vest in the Government because they are meant for public use.
In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession, is saved.
Pausing there, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural purposes ', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent character as well as by reason of the Explanation.
lt is therefore, evident that the determination of the question whether a particular category of property belonging to a taluqdar in a taluqdari estate is vested in the Government or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property.
The expression 'all 240 waste lands ' has been joined by conjunctive 'and ' with the expression 'all uncultivated lands '.
They, therefore, indicate two distinct types of lands.
If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been 'all waste and uncultivated lands ' as against the expression 'all waste lands and all uncultivated lands" were we have, therefore, two distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands.
The contention that the grass lands on hilly tracts which are incapable of cultivation were 'waste lands ' or 'uncultivated lands ' within the meaning of section 6 cannot be accepted.
Now, the expression 'waste lands ' has a well defined legal connotation.
It means lands which are desolate, abandoned, and not fit ordinarily for use building purposes.
In Shorter oxford English Dictionary 3rd Ed., vol. 2, p. 2510, the meaning of word waste ' s given as "1.
Waste or desert land, uninhabited or sparsely inhabited and uncultivated country; a wild and desolate region; 2.
A piece of land not cultivated or used for any purpose, and producing little or no herbage or wood.
In legal use, a piece of such land not in any man 's occupation but lying common.
A devastated region.
" In the sequence in which the expression 'waste lands ' appears in the two relevant sections, it cannot but have its ordinary etymological meaning as given in the Shorter oxford Dictionary i.e. land lying desolate or useless, without trees or grass or vegetation, not capable of any use.
In Rajanand Bramha Shah vs State of Uttar Pradesh & Ors this Court, while discerning the meaning of 'waste and arable land ' in section 17(4) Of the Land Acquisition Act, 1894, observed that the expression 'waste land ' as contrasted to 'arable land ', would mean 'land ' which is unfit for cultivation and habitation, desolate and barren land with little or no vegetation thereon.
To the same effect is the decision in Ishwarlal Girdharilal Joshi etc.
vs State of Gujarat & Anr.
It is clear that these grass lands on hilly tracts were not waste lands.
They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation.
The expression 'waste lands ' in the context would be clearly, in the original sense of the term 'waste ' as 241 meaning barren or desolate lands which are unfit for any use or which are worthless.
That test is not clearly fulfilled.
The appellants alternative contention raises, primarily, the question whether upon a proper construction of section 6 these grass lands on hilly tracts were uncultivated lands.
That depends upon the terms of the section.
The expression 'uncultivated lands ' in section 6, must, in the context in which it appears, mean 'cultivable but not cultivated ' i.e. fit for cultivation, but allowed to lie fallow.
It is uncultivable or unfit for cultivation.
The Explanation below section 6 has a two fold function.
The purpose of the Explanation first is to explain the meaning of the expression 'uncultivated lands ' in the substantive provision.
It then seeks to curtail the effect of the section.
It is a key for ascertaining the meaning of the expression 'uncultivated lands '.
Without the Explanation, any land lying uncultivated, on the date of the vesting, even for a year.
i.e., allowed to lie fallow according to the normal agricultural practice, would vest in the Government.
But then the Explanation steps in and seeks to mitigate the rigour.
It says that the land allowed to lie fallow continuously for a period of three years, shall alone be deemed to be uncultivated land, meaning thereby that a piece of land allowed to lie fallow, intermittently, for a period of less than three years will not be deemed 'uncultivated lands '.
In that view of the matter, the grass lands on hilly tracts which ere incapable of any cultivation could not, in law, be treated to be uncultivated lands ' within the meaning of section 6, read with the Explanation thereto.
There seems to be no doubt on the facts of the case that there were no such basic operations as tilling of the land, sowing or disseminating of seeds, and planting of grass.
The subsequent operations i.e., operations performed after the grass grew on the land, e.g., the act of securing the income of this grass by engaging watchmen etc.
to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when operations for cutting off the grass used to commence, the act of tending the stubs so that they were not cut off but were allowed to remain intact so that the next year after the rains, the grass would grow naturally again, by themselves would not be tantamount to cultivation of the land.
242 In our opinion, the High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did not vest in tile government under section of the Taluqdari Abolition Act and section 7 of the Personal Inams Abolition Act.
In reaching.
that conclusion, we cannot but take into consideration the fact that the Acts make no provision whatever for payment of any compensation for the acquisition of the rights of the former taluqdars and inamdars in such lands.
They are not entitled to any compensation either under section 7(1)(b)(i) of the Taluqdari Abolition Act and section 10.(1) (b) (i) of the Personal Inams Abolition Act.
These provisions speak of the extinguishment of any right or interest in land which is 'waste or uncultivated but is culturable '.
The lands in question not being fit for cultivation, were not 'culturable ' and.
therefore, they do not fall within the ambit of these provisions.
If the contention of the appellant were to prevail, it would lead to an anomalous position.
It would have the effect of taking these lands out of the purview of section 14 of the Taluqdari Abolition Act and section 17 of the Personal Inams Abolition Act, though such lands are not governed by section 7(1)(b)(i) of the former Act and section 10(1)(i) of the latter Act.
This would result in deprivation of property without payment of compensation.
Our attention was drawn to the decision in Ambabai Janhavibai vs State of Maharashtra.
(1) That judgment proceeds on the footing that there was a conflict between section S and section 7 of the Personal Inams Abolition Act.
There is no basis for this assumption.
Further, the observation that 'since it is admitted that no agricultural operations were carried out on the lands for the purpose of raising or growing grass on the lands ', the contention that 'the lands on which grass grew naturally could not be said to be uncultivated, cannot be accepted ', even though the inamdars were making use of these lands and were realising income by selling the grass which grew thereon, appears to proceed on a wrongful assumption that the sine qua non for the applicability of section 5 was actual cultivation.
This observation, in our view, cannot be supported.
In the result, these appeals must fail and are dismissed with costs.
P.B.R. Appeals dismissed.

summary/full:
The object and purpose of the Bombay Taluqdari Tenure Abolition Act, 1949 and the Bombay Personal Inams Abolition Act, 1952 was to abolish taluqdari and inamdari rights as a measure of agrarian reform.
Section 6 of the former Act and section 7 of the latter Act (both of which are identical in terms) provide that among others ". all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas. " shall vest in the Government.
The Explanation to this section provides "for the purposes of this section land shall be deemed to be uncultivated, if it has nor been cultivated for a continuous period of three years immediately before the date on which this Act comes into force.
" The respondents were former Taluqdars and Inamdars.
Vast stretches of hilly tracks which were incapable of cultivation, but on which there was spontaneous growth of grass formed part of the taluqdari estates and inams.
When grass was cut from these lands, care was taken not to cut stubs but they were allowed to remain in tact so that in the following year grass grew with the onset of rains.
The respondents secured income from the grass grown on the lands; for earning income they kept watchmen so that unauthorised pasturing by cattle did not destroy the growing grass.
With the abolition of the taluqdari rights and inams the lands were regarded as having vested in the Government.
The respondents thereupon sought a declaration that the lands were neither vacant lands nor uncultivated lands and being in their possession they became the occupants thereof.
The Mahalkari held that the lands were not waste lands or uncultivated lands and since the respondents were in possession thereof they became occupants.
The Collector reversed this order and held that by reason of Explanation to section 6 of the Taluqdari Abolition Act and Explanation to section 7 of the Inams Abolition Act, the lands should be treated as unoccupied lands and, therefore, they vested in tho Government.
The Revenue Tribunal reversed the order of the Collector.
On further appeal the High Court held that the land were productive lands in the sense that grass grew naturally and that the Explanation contemplates only those lands which could be cultivated but which were left fallow and uncultivated for a continuous period of three years 234 Dismissing the appeals; ^ HELD: 1.
The High Court as well as the Revenue Tribunal were right in holding that the disputed lands did not vest in the Government under section 6 of the Taluqdari Abolition Act and section 7 of the Inams Abolition Act.
[242A] 2.
It would be evident from section 6 that the vesting is in respect of properties which could be put to public use.
It leaves private properties, of the taluqdars untouched.
Public properties situate in a taluqdar 's estate vested in the Government because they were meant for public use.
In spite of vesting of such property in the Government, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession is saved.
[239D F] 3.
The contention that the grass lands on hilly tracks which were incapable of cultivation were waste lands and uncultivated lands within the meaning of section 6 cannot be accepted.
The expression "all waste lands" has been joined by the conjunction "and" with the expression "all uncultivated lands".
They indicate two distinct types of lands.
If the legislature had intended that the aforesaid expression should indicate one class of lands the expression would have been "all waste and uncultivated lands" as against the expression "all waste and uncultivated lands".
There are, therefor, two distinct categories of properties viz., waste lands and uncultivated lands.
[240A B] 4.
The expression "waste lands" means lands which are desolate, abandoned and not fit ordinarily for use for building purposes.
In the sequence in which the expression waste lands appears in the two sections it cannot but have its ordinary etymological meaning viz., lands Lying desolate or useless without trees or grass or vegetation, not capable of any use.
[240C] Rajanand Brahma Shah vs State of U.P. & Ors. ; , Ishwarlal Girdharilal Joshi etc.
vs State of Gujarat & Anr.
, ; ; referred to.
The grass lands on hilly tracts were not waste lands.
They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation.
The expression "waste lands" in the context would be clearly in the original sense of the term waste as meaning barren or desolate lands which are unfit for any use or worthless.
That test is not clearly satisfied.
[240H] (b) The expression "uncultivated lands" in section 6 must in the context m which it appears means "cultivable but not cultivated", "allowed to lie fallow".
It is uncultivable or unfit for cultivation.
[241B] 6.
The Explanation below section 6 has a two fold function: (1) to explain the meaning of the expression "uncultivated lands" in the substantive provision and (2) it is a key for ascertaining the meaning of the expression "uncultivated lands".
Without the Explanation any land Lying uncultivated on the date of the vesting even for a year i.e. allowed to lie fallow according to the normal agricultural practice would vest in the Government.
But the Explanation steps in and seeks to mitigate the rigour.
It says that the land allowed to lie fallow continuously for a period of three years shall alone be deemed to be uncultivated land.
meaning there by that a piece of land allowed to lie 235 fallow intermittently for a period of less than three years will not be deemed "uncultivated lands .
[241 C E] 7.
In the instant case there were no basic operations as tilling of the land, sowing or disseminating of seeds and planting of grass.
The subsequent operations viz., the act of securing the income of the grass by engaging watchmen etc.
by themselves would not tantamount to cultivation of the land.
[241G] 8.
The Acts make no provision for payment of compensation for the acquisition of the rights of the former Taluqdar and Inamdars in such lands.
Section 7 of the former Act and section 10 of the latter Act speak of the extinguishment of any right or interest in land which is waste or uncultivated but is culturable.
The lands in question not benefit for cultivation were not culturable and therefore, they do not fall within the ambit of these provisions.
If the contention of the appellants were to prevail it would have the effect of taking these lands out of the purview of section 14 of the former Act and section 17 of the latter Act though such lands are not governed by section 17 and section 10 respectively.
This would result in deprivation of property without payment of compensation.
[242B D]