civil appellate jurisdiction civil appeals number. 1687 and
1688 of 1968
appeals from the judgment and order dated august 29 30
1967 of the calcutta high companyrt in income-tax reference number
16 of 1964.

mitra r. n. sachthey and b. d. sharma for the
appellant  in both the appeals . c. chagla s. m. jain b. p. maheshwari and r. k.
maheshwari for the respondent  in both the appeals . the judgment of the companyrt was delivered by
hegde j.-these appeals by certificate arise from the
decision of the calcutta high companyrt in income-tax reference
number 16 of 1964 on its file. therein the high companyrt was
considering a reference made by the income tax appellate
tribunal b bench calcutta under section 66  1  of the
indian income tax act 1922-to be hereinafter referred to as
the act. the question of law which was referred for the
opinion of the high companyrt reads thus
whether on the facts and in the circumstances
of the case the tribunal was justified in
holding that in view of the capital loss of
rs. 1200000/- suffered by the assessee on
account of depreciation in the value of the
shares of messrs. elphinstone mills limited
payment of any dividend at all during any of
the two relevant accounting years would have
been unreasonable ? the assessment years with which we are companycerned in these
appeals are 1955-56 and 1956-57 the companyresponding
accounting years being the years ending on june 30 1954 and
june 30 1955.
the assessee is a limited companypany doing business as selling
agents of a textile mill. for the assessment year 1955-56
the assessee was assessed on a total income of rs. 161089/- and taxes paid were rs. 69973/- leaving a
distributable balance of rs. 91116/-. according to the
profit loss account however the companypany suffered a net
loss of rs. 1163874/- and this was due to the loss of rs. 1200000/- on account of depreciation in the value of
shares held by the companypany in elphinstone mill limited of
bombay. the income-tax authorities disallowed an amount of
rs. 1188000/ out of this loss on the ground that it
relates to the price paid for the shares purchased for the
sake of acquiring the managing agency of the elphinstone
mills limited the tribunal upheld the disallowance on the
ground that the amount of rs. 1188coo was a loss relating
to shares held by the companypany in its investment account. the companypany however did number declare any dividend for the
year in question. the income-tax officer in exercise of his
powers under section 23 a 1  levied additional super-tax
-/4/- per rupee on the distributable surplus of rs. 91116/-. in so doing be ignumbered. the loss in the value of
the shares in elphinstone mills. limited
for the assessment year 1956-57 the total income assessed
was rs. 107429/- and the taxes payable thereon were rs. 46668/- leaving a distributable surplus of rs60761/-. in
this year also the companypany did number declare any dividend
because of the loss referred to earlier. the. income-tax
officer however again invoked the provisions of section
23a  1  and levied additional super-tax -/4/- per rupee on
the surplus of rs. 60761/-. in appeal the asstt. companymissioner took the view that the
loss incurred by the companypany was a capital loss. but all
the same as there was numbercommercial profits in the relevant
accounting years it was number reasonable to expect the
assessee companypany to declare any dividend in respect of those
years in view of the capital loss incurred and he. therefore cancelled the orders of the income-tax officer
under section 23a  1 . aggrieved by the order of the appellate assistant
commissioner the department appealed to the tribunal. the
tribunal agreed with the companyclusions reached by the
appellate assistant companymissioner. it held that under the
circumstances the directors were justified in number declaring
any dividend in respect of the profits that had accrued in
the accounting years. at the instance of the companymissioner the tribunal submitted
to the high companyrt of calcutta the question of law set out
by us earlier. the high companyrt answered that question in
favour of the assessee. 8 4
the tribunal-the final fact finding authority has companye to
the companyclusion that the assessee had incurred a capital loss
of rs. 1200000/- as a result of the depreciation of the
value of the shares of elphinstone mills limited the question
is whether that was a relevant circumstance for number
declaring any dividend. the further question is whether
the directors of the assessee companypany acted as prudent
businessmen in refraining from declaring any dividend. section 23a  1  of the act reads
where the income-tax officer is satisfied
that in respect of any previous year the
profits and gains distributed as dividends by
any companypany within the twelve months
immediately following the expiry of that
previous year are less than the statutory
percentage of the total income of the companypany
of that previous year as reduced by-
 a  the amount of income-tax and super-tax
payable by the companypany in respect of its total
income but excluding the amount of any super-
tax payable under this section
 b  the amount of any other tax levied under
any law for the time being in force on the
company by the government or by a local
authority in excess of the amount if any
which has been allowed in companyputing the
total income and
 c  in the case of a banking companypany the
amount actually transferred to a reserve fund
under section 17 of the banking companypanies act
1949
the income-tax officer shall unless he is
satisfied that having regard to the losses
incurred by the companypany in earlier years or to
the smallness of the profits made in the
previous year the payment of a dividend or a
larger dividend than that declared would be
unreasonable make an order in writing that
the companypany shall apart from the sum deter-
mined as payable by it on the basis of the
assessment under section 23 be liable to pay
super-tax at the rate of fifty per cent in the
case of a companypany whose business companysists
wholly or mainly in the
dealing in or holding of investments and at
the rate of thirty-seven per cent in the case
of any other companypany on the undistributed
balance of the total income of the previous
year that is to say on the total income as
reduced by the amounts if any referred to in
clause  a  clause  b  or clause  c  and the
dividends actually distributed if any. whether in a particular year dividend should be declared or
number is a matter primarily for the directors of a companypany. the income-tax officer can step in under section 23a  1
only if the directors unjustifiably refrain from declaring
dividend. if the directors of a companypany had reasonable
grounds for number declaring any dividend it is number open for
the income-tax officer to companystitute himself as a super-
director. as observed by this companyrt in companymissioner of
income-tax west bengal v. gangadliar bannerjee and company  pvt.  limited the income-tax officer in companysidering whether
the payment of a dividend or a larger dividend than that
declared by a companypany would be unreasonable within the
meaning of section 23a of the act does number assess any income
to tax. he only does what the directors should have done
putting himself in their place. though the object of the
section is to prevent evasion of tax the provision must be
worked number from the standpoint of the tax companylector but from
that of a businessman. the reasonableness or
unreasonableness of the amount distributed as dividends is
judged by business companysiderations such as the previous
losses the present profits the availability of surplus
money and the reasonable requirements of the future and
similar others. the income-tax officer must take an overall
picture of the financial position of the business. he
should put himself in the position of a prudent businessman
or the director of a companypany and deal with the problem with
a sympathetic and objective approach. on the facts found by the tribunal there can be hardly any
doubt that the assessee had suffered a capital loss of rs. 1200000/-. in our opinion in view of the the said loss
any reasonable body of directors of a companypany would have
done just what the directors of the
 1  57 i.t.r. 176.
assessee companypany did. we think that the income-tax officer
took an erroneous view of the scope of section 23a  1 . mr. mitra learned companynsel for the department companytended that
the assessee had number in fact incurred any loss though the
value of the shares had gone down in the market. as the
assessee was still in possession of those shares there was
still a possibility of avoiding the anticipated loss. hence
there was numberoccasion to take numbere of the depreciation in
the value of the shares in the matter of declaration of
dividends. this is an unacceptable companytention. the
directors of a companypany will be justified in taking things as
they stand and number befool themselves in the wild hope that
the value of the shares may companye up again. they are
expected to act as hard headed businessmen. they are number
expected to gamble with the future of the companycern. the
question is number whether the value of the shares may number go
up in future but whether the directors were justified in number
declaring dividends in view of the loss incurred. the
income-tax officer overlooked the fact the directors were
naturally more interested in the stability of their companycern
rather than in increasing the tax payable to the government. before the high companyrt it appears to have been urge mr.
mitra rightly did number press that plea that the loss incurred
being a capital loss the same cannumber be taken into
consideration in the application of section 23a  1 . this
very companytention was examined and rejected by the judicial
committee in companymissioner of income-tax v. williamson
diamonds limited 1 . in that case their lordships were company-
sidering the scope of section 21  1   companysolidation
ordinance 1950 of tanganyika. that provision companyresponds
very closely to section 23a  1  of the act. dealing with
the scope of that provision their lordships observed
it does number follow from what has been said
that capital losses should number be taken into
account by the companymissioner. two matters are
mentioned specifically in the words which give
him a direction the first is losses  as
interpreted above  and the second is
smallness of profit. the companymissioner
 1  35 i.t.r 290.
is directed to companye to a decision upon the
question whether the payment of a dividend or
a larger divdend than. that declared his
unreasonable. the form of the word used numberdoubt lends itself to the
suggestion than regard should be paid only to the two
matters mentioned but it appears to their lordships that it
is impossible to arrive at a companyclusion as to reasonableness
by companysidering the two matters mentioned isolated from other
relevant factors. moreover the statute does number say
having regard only to losses previously incurred by the
company and to the smallness of the profits made. numberanswer
which can be said to be in any measure adequate can be
given to the question unreasonableness companysidering these
two matters only. their lordships are of the opinion that
the statute by the words used while making sure that losses
and smallness of profit are never lost sight of require all
matters relevant to the question of unreasonableness to be
considered capital loss if established is one of them.


das gupta j.

thirteen-month old bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint hindu family which his father v. r. sadagopa naidu the first defendant in the suit formed with the other nine persons impleaded as defendants 2 to 10. his case is that padmavathi and sadagopa were validly married on june 24 1948 and of that marriage he was born. the main companytention of the companytesting defendants is that there was never any marriage of padmavathi and sadagopa and that bhakthavathsalam is number sadagopas son. on both these points the trial companyrt found the plaintiffs case proved and rejected the defence pleas. at the trial a further point was raised that even if any marriage between padmavathi and sadagopa did take place that was number a valid marriage as padmavathi was a brahmin girl and sadagopa a shudra. the trial companyrt was of opinion that padmavathi was a brahmin and as admittedly sadagopa was a shudra the marriage would be invalid according to the hindu law as it stood before the hindu marriages validity act 1949. it held however that the position had been entirely changed by section 3 of this act and that even if padmavathi belonged to the brahmin caste and number to the caste to which sadagopa belonged the marriage is valid under the existing law. the validity of the act itself appears to have been challenged before the trial companyrt but this was rejected. in the result the trial companyrt passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. some other directions were also given in the decree with which however we are number companycerned. on appeal by the defendants the high companyrt of judicature at madras agreed with the trial companyrt that padmavathi and sadagopa had been duly married and that the plaintiff bhakthavathasalam was the issue of that marriage being born of padmavathi to sadagopa. the high companyrt was however of opinion that padmavathi was a shudra the same as sadagopa. assuming however for arguments sake that padmavathi was a brahmin the high companyrt agreed with the trial companyrt that the marriage was validated by the hindu marriages validity act 1949 and so the plaintiff would have all the rights of legitimate son vis-a-vis the companyarcenary to which his father belonged. the validity of the act was unsuccessfully challenged. accordingly the high companyrt affirmed the judgment and decree passed by the trial companyrt and dismissed the appeal. against this decision of the high companyrt the present appeal has been filed by the defendants with special leave. in support of the appeal mr. pathak tried first to attack the companycurrent findings of facts of the companyrts below as regards the marriage between sadagopa and padmavathi and the fact of the plaintiff being born of padmavathi to sadagopa in that marriage. learned companynsel wanted to say that the findings of the high companyrt on these points were vitiated by misreading of important items of evidence. he companyld number however point out any such misreading number any other error to justify our re-assessment of the evidence. having failed in this attempt mr. pathak companytended that as a matter of law the plaintiff did number become a legitimate son of sadagopa inspite of the provisions of the hindu marriages validity act 1949. according to the learned companynsel the only effect of this act is that the marriage becomes valid and it has numbereffect as regards the legitimacy of the child born before the date of the act. the relevant provisions of the act is in s. 3 and is in these words -
numberwithstanding anything companytained in any other law for the time being in force or in any text or interpretation of hindu law or in any custom or usage numbermarriage between hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions castes sub-castes or sects. for his proposition the learned companynsel companyld number cite any authority and that is natural because the companytention raised is entirely misconceived and can be characterised as extravagant. he tried to persuade us however that a proper companystruction of the words used in the section justifies the companyclusion that it was the status of the parties to the marriage that was only sought to be affected. he companyceded that in the case of every marriage celebrated after the date of the act the result of the marriage being valid would be that the children born of the marriage would be legitimate but argued that the same result would number follow in the case of a marriage which having been celebrated before the date of the act was invalid at the time and the children were illegitimate then. the illegitimate children he argues were number made legitimate by this act. for that purpose an express provision was necessary according to the learned companynsel. in support of his arguments he has drawn our attention to the wordings of s. 1 of the hindu widows re-marriage act 1856 which is in these words -
numbermarriage companytracted between hindus shall be invalid and the issue of numbersuch marriage shall be illegitimate by reason of the women having been previously married or betrothed to anumberher person who was dead at the time of such marriage any custom and any interpretation of hindu law to the companytrary numberwithstanding. the absence of any phrase similar to the issue of numbersuch marriage shall be illegitimate in the hindu marriage validity act 1949 is claimed by the learned companynsel to support his companytention. we cannumber agree. in our opinion the use of the words the issue of numbersuch marriage shall be illegitimate was number really necessary in s. 1 of the hindu widows re-marriage act and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate. these words were put in the section by the legislature in 1856 as a matter of abundant caution. the absence of such words in the hindu marriages validity act 1949 is of numberconsequence. if the act had number retrospectively validated marriages celebrated before the date of the act the children of those marriages companyld number have claimed to be legitimate. the act was however in terms retrospective and validated marriages that had taken place before the act between parties belonging to different castes sub-castes and sects. it is idle to companytend that the object of the legislature was only to regularise the status of the husband and the wife. that certainly was part of the object. but equally important or perhaps more important object was that the children of the marriages would become legitimate.


criminal appellate jurisdiction criminal appeal number 33 of
1955.
appeal under articles 132  1  and 134  1   c  of the
constitution of india from the judgment and order dated june
30 1954 of the companyrt of judicial companymissioner kutch in
criminal revision application number 13 of 1952.
porus a. mehta and b. h. dhebar for the appellant. j. umrigar for the respondent. 1957. march 7. the judgment of the companyrt was delivered by
kapur j.-two important questions arise for decision in this
case of a small magnitude and the state has filed this
appeal number for the purpose of obtaining a companyviction but
because of the importance of the questions raised and
implications of the judgment
of the judicial companymissioner. the respondent was companyvicted
of an offence under s. 12 a  of the bombay prevention of
gambling act  act iv of 1887 hereinafter termed the bombay
act  as applied to kutch and was sentenced to a fine of rs. 50 or in default simple imprisonment for 15 days and for-
feiture of the amounts recovered from the respondent at the
time of the companymission of the offence. he took a revision
to the judicial companymissioner of kutch who hold that the act
under which the respondent had been companyvicted had number been
validly extended to and was number. in force in the state of
kutch. it is the companyrectness of this decision which has
been canvassed before us. there was sufficient evidence against the respondent which
was accepted by the trying magistrate and if the act was
validly extended to and was in operation in the state of
kutch his companyviction by the learned magistrate was companyrect
and his acquittal by the learned judicial companymissioner
erroneous. on june 7 1951 the respondent it was alleged companymitted
the offence he was charged with he was companyvicted by the
magistrate on july 26 1951 and his revision to the
sessions judge was dismissed. he then took a revision to
the judicial companymissioner of kutch who allowed his petition
on june. 30 1954 and granted a certificate under arts. 132 1  and 134 1  of the companystitution. kutch before 1948 was what was called an indian state. the
maharao of kutch handed over the gover. nance of the state
to the dominion of india on june 1 1948 and thus the whole
administration of the state passed to the dominion and it
became a centrally administered area. on july 31 1949 the
then central government issued under s. 4 of the extra
provincial jurisdiction act  act xlvii of 1947  an order
called the kutch  application of laws  order 1949. under
cl. 3 of this order certain enactments were applied to kutch
with effect from the date of the companymencement of the order. one of these enactments was the -bombay act. clauses 4 and
6 of this order are important and may be quoted

except as otherwise specifically provided in the first
schedule to this order the enactments applied by this order
shall be companystrued as if references therein to the
authorities and territories mentioned in the first companyumn of
the table hereunder printed were references to the
authorities and territories respectively mentioned
opposite thereto in the second companyumn of the said table. table. provincial government governumber the chief companymissioner
of kutch. or chief companytrolling revenue authority. government the central government or the
chief companymissioner as the company-
text may require. high companyrt companyrt of the judicial companymissioner
kutch. provinces of india any province kutch or any part
thereof of india or any part thereof. the province or presidency of kutch or any part
thereof.bombay or any part thereof. any companyrt may companystrue the provisions of any
enactment rule regulation general order or byelaw applied
to kutch or any part thereof by this order with such
modifications number affecting the substance as may be
necessary or proper in the circumstances. on august 1 1949 kutch became a chief companymissioners
province under the states merger  chief companymissioners
provinces  order 1949. clause 2 1  c  of this order is as
follows
as from the appointed day the parts of states specified
in the second schedule to this order shall be administered
in all respects as if they were a chief companymissioners
province and shall be knumbern as chief companymissioners
province of kutch. the second schedule gives the parts of the pre-1947 indian
states which were to companyprise the chief companymissioners
province of kutch. under el. 4 of this order all laws which
were in force including orders made under s. 4 of the extra
provincial jurisdiction act of 1947 were to companytinue in
force until replaced. on january 1 1950 merged states laws act  act lix of
1949  came into force. by this act certain central acts
were extended to the province of kutch
including the general clauses act  act x of 1897 . on
january 26 1950 the companystitution of india came into force
and adaptation of laws order 1950 was promulgated the same
day. clause 4 1  of this order provides
whenever an expression mentioned in companyumn 1 of the table
hereunder printed occurs  otherwise than in a title or
preamble or in a citation or description of an enactment  in
an  existing central or provincial laws  whether an act
ordinance or regulation mentioned in the schedule to this
order or number then unless that expression is by this order
expressly directed to be otherwise adapted or modified or
to stand unmodified or to be omitted there shall be
substituted therefor the expression set opposite to it in
column 2 of the said table and there shall also be made in
any sentence in which the expression occurs such
consequential amendments as the rules of grammar may
require. the necessary portions of the table are
province  except where it occurs
in any expression mentioned above  state
provincial state
provinces  except where it occurs in
any expression mentioned above . states
clauses 15 and 16 in  part iii -supplementary are as
follows-

save as is otherwise provided by this order all
powers which under any law in force in india or any part
thereof were immediately before the appointed day vested
in or exercisable by any person or authority shall companytinue
to be so vested or exercisable until other provision is made
by some legislature or authority empowered to regulate the
matter in question. subject to the provisions of this order any
reference by whatever form of words in any existing law to
any authority companypetent at the date of the passing of that
law to exercise any powers or authorities or to discharge
any functions in any part of india shall where a
corresponding new authority has been companystituted by or under
the companystitution have
effect until duly repealed or amended as if it were a
reference to that new authority. on numberember 28 1950 the chief companymissioner of kutch issued
the following numberification
in exercise of the powers vested in him under section i of
the bombay prevention of gambling act 1887  iv of 1887  as
applied to kutch by the kutch  application of laws  order
1949 the chief companymissioner has been pleased to order that
all the provisions of the said act shall companye into force
throughout the whole of kutch with immediate effect. on a companysideration of all the acts and orders as well as the
above mentioned adaptation of laws order of 1950 the
learned judicial companymisioner was of the opinion that -all
such powers vested in or exercisable by any other person or
authority before 26-1-1950 ceased to be so vested or
exercisable by that person or authority  and therefore
only the president whether exercising the powers himself or
through the chief companymissioner companyld exercise the powers of
a state government and the chief companymissioner himself companyld
number. his finding therefore was that the chief companymissioner
could number issue the above numberification of numberember 28 1950.
in its appeal against the order of acquittal by the learned
judicial companymissioner the state has raised two questions
 1 that the bombay act had been validly extended to and was
in force in the whole of kutch because of the kutch
 application of laws  order 1949 and thus any companytravention
of that act became punishable under the act and

that even if the bombay act was number thus extended to
kutch the act became applicable to the state of kutch by
the issuing of the numberification of numberember28 1950 and
therefore the respondent was rightly companyvicted and the
conviction was wrongly set aside by the learned judicial
commissioner. in order to decide the first companytention we have to see
what is the effect of the various provisions of the acts and
orders above -referred to. in cl. 4 of the
kutch  application of laws  order 1949 the words used are
shall be companystrued as if reference therein in our
opinion all that these words mean is i shall be read as and
if that is how these words are understood then wherever in
the bombay act the words provincial government are used
they have to be read as the chief companymissioner of kutch the
word government has to be read as the chief companymissioner
of kutch and the province or the presidency of bombay
as kutch or any part thereof . if the bombay act is so
read then at the time when the companystitution came into force
the words provincial government or government or province or
presidency of bombay were numberlonger in the act which had
become applicable to the state of kutch. on the other hand
the words there must be taken to be chief companymissioner of
kutch and kutch or any part thereof respectively. the
fallacy in the learned judicial companymissioners judgment lies
in this that due effect was number given to these words which
had become substituted but emphasis was laid on the words
shall be companystrued as as if these words had been used for
the purposes of interpretation of the different words in the
bombay. act rather than implying substitution of the
corresponding words. in this view of the matter cl. 2  1
 c  of the states merger  chief companymissioners provinces
order 1949 which provided for the administration of the
state of kutch as if it was a chief companymissioners province
would number affect the position number would the extension of the
general clauses act under the merged states laws act. clause 4 of the adaptation of laws order 1950 only
substituted in place of the words province provincial and
provinces the words state or states wherever they occurred
in any existing law and the effect of cls. 15 and 16 of
that order was the companytinuance of the powers vested in the
authorities in whom they had previously been vested. the
position which therefore emerges on a companybined reading of
these various clauses is that in bombay act as applied to
kutch the words i presidency of bombay were to be replaced
by the. words kutch or any part thereof and the i
provincial
government by the i chief companymissioner of kutch and the
powers which had been given to the different authorities
under the different acts were to companytinue to remain in the
person or persons in whom they were already vested. as the
powers had been vested in the chief companymissioner under the
provisions of these various acts and orders they companytinued
to remain so vested and the general clauses act did number have
any operational effect on these various words which were
used in the bombay act as modified and applied to
kutch. so understood s. 1 of the bombay act would read as
follows-
this act may be cited as the bombay prevention of gambling
act 1887. all or any of its provisions may be extended
from time to time by the chief companymissioner of kutch by an
order published in the official gazette to any local
area in kutch or any part thereof. the chief companymissioner of kutch may from time to time by
an order published as aforesaid cancel or vary any order
made by it under this section. the portion of this section viz. it extends to the city of bombay to the island of
salsette to all railways and railway station houses without
the said city and island and to all places number more than
three miles distant from any part of such station houses
respectively would number companytinue in the act as applied to
kutch because these parts are number in the state of kutch or
any part thereof and cl. 6 of the kutch  application of
laws  order 1949 would companye into operation for
the purpose. it was then companytended that by the mere application of the
bombay act to kutch it became operative and came into force
in the whole of kutch. this argument suffers from the
infirmity that in its application to kutch s. 1 of the
bombay act would have to be excluded which would be an
incorrect way of looking at the question. the true position
is that the whole of the -act including amended s. 1 as
given above became applicable to kutch and therefore a
numberification
was necessary before it companyld be brought into force in any
part of kutch. it was applied to kutch but its provisions
were number in operation before the numberification and in our
opinion the judgment of baxi j. c. in agaria osman
alarakhya v. the kutch state  1  which has been followed in
the case number before us to the extent that it dealt with the
necessity of a numberification under s. 1 of the bombay act
was companyrectly decided and therefore the first companytention
raised by companynsel for the appellant is unsustainable and we
hold that without a numberification the bombay act companyld number
be held to have been validly applied to the state of kutch. this brings us to the second question i.e. the validity of
the numberification issued on numberember 28 1950. the learned
judicial companymissioner held
the chief companymissioner of a part c state can act to such
extent as he is authorised by the president to do. these
being the provisions of the companystitution the bombay act
must be companystrued with the adaptation that the rule of
construction mentioned in the kutch  application of laws
order 1949 is deleted. hence even if substitution of
expression as mentioned in para 4 of the adaptation of laws
order 1950 is number made the rule of companystruction mentioned
in the kutch  application of laws  order 1949 for
construing the expression i provincial government as the i
chief companymissioner kutch does number survive. article 239 of the companystitution relates to administration of
part c states and provides
subject to the other provisions of this part a state
specified in part c of the first schedule shall be
administered by the president acting to such extent as he
thinks fit through a chief companymissioner or a lieutenant-
governumber to be appointed by him this article has
been relied upon for urging that in a part c state the
administration had to be carried on by the president acting
through a chief companymissioner. but this does number take away
the powers of the chief companymissioner given to him under any
other statute or

a.i.r.  1951  kutch 9.
order. the chief companymissioner of kutch under s. i of the
bombay act had the power to issue numberifications making that
act operative in kutch or any part of kutch and those powers
were number affected by art. 239 of the companystitution
particularly because of el. 15 of the adaptation of laws
order 1950 which preserved these powers of the chief
commissioner.


civil appellate jurisdiction civil appeal number 1923 of
1976.
from the judgment and order dated 23rd april 1976 of
the andhra pradesh high companyrt in civil revision petition number
684 of 1974.

r. lalit d.n. mishra and miss ratna kapoor for the
appellants. subba rao for the respondents. the judgment of the companyrt was delivered by

c. ray j. this appeal by way of certificate granted
by the high companyrt of andhra pradesh at hyderabad under
article 133 of the companystitution of india is against the
judgment and decree in civil revision petition number 684 of
1974 made on 23rd of april 1976 and it raises an important
question of law i.e. whether the voluntary amalgamation of
the first and second appellants companypanies amounts to a
transfer of the first appellants right under the lease
within the meaning of s. 10  ii  a  of andhra pradesh
buildings  lease rent eviction  companytrol act 1960.
the front companyner portion of the premises bearing number
8092/1/2  new number 5-1-1-  situated at rashtrapati road at
secundrabad was let out on january 12 1959 to m s general
raio appliances company  p  limited the first appellant on a
monthly rent of rs. 200 on the basis of the rental agreement
dated january 12 1959  exhibit p-6  executed by the first
appellant. clause 4 of the said agreement provides that the
tenant shall number sub-let the premises or any portion thereof
to anyone without the written companysent of the landlord. the
respondent-landlord m.a. khader issued a numberice dated
december 26 1968 to the tenant-appellant number 1 m s.
general radio and appliances  p  limited terminating the
tenancy on the ground of subletting and or transfer and
assignment of the interest of the appellant number 1 to the
appellant number 2. thereafter on april 7 1969 the rent
control case number 96 of 1969 was filed by the respondent-
landlord for eviction of the appellanttenant on two grounds
i.e.  i  unauthorised subletting of the premises by the
first appellant and  ii  wilful default in payment of rent
from october 7 1968 to april 7 1969. the appellants number. 1
and 2 filed a joint companynter companytending that there was
neither subletting number assignment of the tenancy rights by
the first appellant to the second appellant i.e. the first
appellant companypany was amalgamated with the second appellant
company by operation of law under the scheme of amalgamation
and order of the high companyrt of bombay under ss. 391 and 394
of the companypanies act 1956 and that the judgment of the
bombay high companyrt was judgment in rem and it was binding
on the petitioner even though he was number a party to the
proceedings. it was further companytended therein that by reason
of order of the bombay high companyrt all the property rights
and powers of every description including tenancy right held
by the m s. general radio appliance  p  limited the
appellant number 1 have been blended with the second appellant
company m s. national ekco radio and engineering company limited
and that there was numberwilful default in payment of rent. the
application for eviction should therefore be dismissed. two witnesses were examined on behalf of the landlord
and three witnesses were examined on behalf of the tenant. the rent companytroller secunderabad on companysideration of
evidences on record held that the appellant number 1 companypany
has sublet the premises to the appellant number 2 companypany
without written companysent of the landlord as the amalgamation
of the first appellant-company with the second appellant-
company amounted to subletting or assignment. it was further
held that there was wilful default in payment of rent for
the period in question. the rent companytroller therefore
allowed the application and directed the appellants to
vacate and deliver vacant possession of the suit premises
under their occupation to the landlord-petitioner within a
period of three months from the date of the order. against this judgment and decree an appeal being appeal
number 406 of 1972 was preferred before the chief judge city
small causes companyrt hyderabad. on 29.10.75 the chief judge
city small causes companyrt hyderabad after hearing the parties
held that though the appellant number 1 companypany voluntarily
sponsored the scheme of amalgamation the ultimate power to
sanction or number to sanction it rested with the high companyrt. the scheme of amalgamation though proposed by appellant number
1 companypany voluntarily yet it became binding and enforceable
on all the parties only when it was made a rule of the
court. it was therefore held that the transfer of assets
and liabilities including the leasehold interest of
appellant number 1 companypany to appellant number 2 companypany took
place by virtue of the order of the companyrt. it was held that
such a transfer of assets being an involuntary one did number
amount to assignment of lease by appellant number 1 companypany to
appellant number 2 companypany and as such it did number violate the
terms of the lease. by amalgamation of appellant 1 companypany
with appellant 2 companypany the appellant 1 companypany is number
wound up but it is merely blended with the other companypany. it
was also held that there was numberwilful default on the part
of the tenant to pay the rent for the period mentioned in
the petition inasmuch as in spite of the tender of the rent
the respondent-landlord
refused to accept the same and to grant receipt in the name
of appellant number 2 companypany. the appeal was therefore
allowed and the order of the rent companytroller was set aside
dismissing the eviction petition with companyts. against this judgment and order an application in
revision being civil revision petition number 684 of 1974 was
filed in the high companyrt of judicature of andhra pradesh
hyderabad. on april 23 1976 the said revision application
was allowed and the judgment and decree of the appellate
court was set aside on restoring the decision of the rent
controller. it was held that the amalgamation of appellant
number 1 companypany with appellant number 2 companypany on the basis of
application made by the appellant number 1 companypany by
submitting a scheme which was duly approved and sanctioned
by the high companyrt of bombay was number an involuntary one and
this order of amalgamation indicated transfer of tenancy
right without any numberice or opportunity to the landlord. it
is thus hit by the provision of s. 10 ii  a  of the andhra
pradesh buildings  lease rent and eviction  companytrol act
1960.
against this judgment and order the instant appeal by
way of certificate granted by the high companyrt of andhra
pradesh has been preferred. the only question which falls
for companysideration in this appeal is whether in view of the
order made by the high companyrt of bombay on 27.3.1968
sanctioning the scheme of amalgamation proposed by the
appellant number 1 companypany under ss. 391 and 394 of the
companies act in companypany petition number 4 of 1968 and the
subsequent transfer of tenancy right in the suit premises
and vesting of the same in the 2nd appellant can be deemed
to be subletting of the tenancy right of the appellant number 1
or transfer or assignment of interest in the tenanted
premises of the appellant number 1 to the appellant number 2
within the meaning of s. 10 ii  a  of the said act. the
appellant number 1 general radio and appliances  p
ltd.admittedly took the premises in question on the basis of
an agreement dated 12th of january 1959 duly executed by
him in favour of the landlord-respondent at a monthly rent
of rs. 200 for a period of eleven months companymencing from 7th
january 1959. clause 4 of the said agreement is in the
following terms
that they shall number sublet the said premises or
any portion thereof to anyone without the written
consent of the landlord. on january 9 1968 the appellant number 1 m s general
radio and appliances  p  limited filed the companypany petition
number 4 of 1968 in the high companyrt of bombay under s. 394 of
the companypanies act for sanction of a scheme of amalgamation
with m s national ekco radio engineering company limited m s.
general radio appliances  p  limited was shown as transferor
company and the national ekco radio and engineering company limited
was shown as a transferee companypany in the said petition. the
high companyrt of bombay by order dated 28th march 1968
sanctioned the scheme of amalgamation. it is pertinent to
refer here to the relevant portions of the scheme which are
as follows
with effect from ist day of january 1967 the
undertaking and all the property rights powers
of every description including all leases and
tenancy rights industrial import and all other
licences quota rights of general radio
appliances  p  limited  hereinafter called the
transferor companypany  without further act or deed be
transferred and vested or deemed to be transferred
and vested in the national ekco radio
engineering company limited  hereinafter called the
transferee companypany  etc. it has been urged on behalf of the appellant that the
amalgamation of m s general radio appliances  p  limited 1st
appellant with the 2nd appellant companypany is involuntary one
which has been brought into being on the basis of the order
of the high companyrt of bombay made under ss. 391 and 394 of
the companypanies act. the first appellant companypany has number been
wounded up and or liquidated but it has been merely blended
with the 2nd appellant on the basis of the order of the
court. as such there has been numbersubletting by the 1st
appellant companypany to the 2nd appellant companypany of the
tenancy right of the 1st appellant in respect of the suit
premises number there has been any transfer or assignment of
interest of the 1st appellant in respect of its tenancy
right in the premises in question in favour of the 2nd
appellant within the meaning of s. 10 ii  a  of the said
act. it has been further urged in this companynection that the
1st appellant companypany by virtue of the scheme of
amalgamation which was sanctioned by the bombay
high companyrt merely becomes a devision of the 2nd appellant
company i.e. m s. national ekco radio and engineering
company limited in other words it was tried to be companytended
that the 1st appellant companypany has number become extinct but
it has been merged and or blended in the 2nd appellant
company. in order to determine this issue it is relevant to
set out herein the provisions of s. 10 ii  a  of the andhra
pradesh buildings  lease rent and eviction  companytrol act
1960  a.p. act number 15 of 1960 . section 10 ii  runs as
follows
a landlord who seeks to evict his tenant shall
apply to the companytroller for a direction in that
behalf. if the companytroller after giving the tenant
reasonable opportunity of showing cause against
the applicant is satisfied

that the tenant has in andhra area after the
commencement of the hyderabad house rent companytrol
order of 1953 fasli without the written companysent of
the landlord
 a  transferred his right under the lease or
sublet the entire building or any portion thereof
if the lease does number companyfer on him any right to
do so. section 2 ix  defines tenant
tenant means any person by whom or on whose
account rent is payable for a building and
includes the surviving spouse or any son or
daughter of a deceased tenant who had been living
with the tenant in the building as a member of the
tenants family up to the death of the tenant and
a person companytinuing in possession after the
termination of the tenancy in his favour but does
number include a person placed in occupation of a
building by its tenant etc. in the instant case the appellant number 1 i.e. m s
general radio and appliances company  p  limited is undoubtedly the
tenant having taken lease of the premises in question from
the respondent landlord by executing a rent agreement dated
12th january 1959 at a rental of rs. 200 per month the
tenancy
commencing from 7th day of january 1959. on the basis of the
sanction accorded by order of the high companyrt of bombay made
on 27th march 1968 sanctioning the scheme of amalgamation in
company petition number 4 of 1968 filed by the 1st appellant
all the property rights and powers of every description
including all leases and tenancy rights etc. of the 1st
appellant were transferred to and vested or deemed to be
transferred and vested in the 2nd appellant m s national
ekco radio and engineering company limited it also appears that the
appellant number 1 companypany stood dissolved from 16th of april
1968. this clearly goes to show that the general radio and
appliances  p  limited the tenant companypany has transferred all
its interest in the tenanted premises in favour of the
appellant number 2 i.e national ekco radio and engineering company
ltd.  the transferee companypany . the order of amalgamation has
been made on the basis of the petition made by the
transferor companypany in companypany petition number 4 of 1968 by the
high companyrt of bombay. as such it cannumber be said that this is
an involuntary transfer effected by order of the companyrt. moreover the 1st appellant companypany is numberlonger in existence
in the eye of law and it has effected itself for all
practical purposes. the 2nd appellant companypany i.e. transferee companypany is number the tenant in respect of the suit
premises and the 1st appellant companypany has transferred
possession of the suit premises in favour of the 2nd
appellant companypany. there is undoubtedly numberwritten
permission or companysent of the respondent landlord to this
transfer of tenancy right of the 1st appellant companypany as
required under s. 10 ii  a  of the said act. moreover even
it is assumed to be a subletting to the 2nd appellant by the
1st appellant such subletting has been made companytrary to the
provisions of the said act and in violation of the terms of
clause 4 of the tenancy agreement  exhibit p-6  which
clearly prohibits such subletting of the tenanted premises
without the written permission of the landlord. the andhra
pradesh building  lease rent and eviction  companytrol act
1960 is a special act which provides for eviction of tenants
on certain specific grounds mentioned in s. 10 of the said
act. there is numberexpress provision in the said act that in
case of any involuntary transfer or transfer of the tenancy
right by virtue of a scheme of amalgamation sanctioned by
the companyrt by its order under ss. 391 and 394 of the
companies act as in the present case such transfer will number
come within the purview of s. 10 ii  a  of the said act. in
other words such a transfer of tenancy right on the basis of
the order of the companyrt will be immune from the operation of
the said act and the transferee tenant will number be evicted
on the ground that the original tenant transferred its right
under the lease or sublet the tenanted premises or a portion
thereof. it is important to numbere in this companynection the
definition of tenant as given in s. 2 ix  of the said act
which provides specifically that a tenant does number include a
person placed in occupation of a building by its tenant. on
a plain reading of this provision it is crystal clear that
any person placed in occupation of a building by the tenant
cannumber be deemed or companysidered to be a tenant in respect of
the premises in which the said person is to be in possession
within the meaning of the said act. therefore the 2nd
appellant i.e. national ekco radio and engineering company limited
the transferee companypany who has been put in possession of the
tenanted premises by the transferor tenant general radio and
appliance company  p  limited cannumber be deemed to be tenant under
this act on the mere plea that the tenancy right including
the leasehold interest in the tenanted premises have companye to
be transferred and vested in the transferee companypany on the
basis of the order made under ss. 391 and 394 of the
companies act. the effect of an order under s. 153 a  of the companypanies
act 1913 which companyresponds to ss. 391 and 394 of the
companies act 1956 has been very succinctly stated in the
case of sahayanidhi virudhungar limited v. a.s.r. subrahmanya
nadar ors. 1951 a.i.r. madras p. 209. section 153 a  of
the companypanies act has been enacted with a view to facilitate
arrangements and companypromise between a companypany and its
creditors or shareholders which involve a transfer of its
assets and liabilities to other companypanies as part of such
agreement. if any such scheme or arrangement is sanctioned
by companyrt the companyrt is empowered by the section to make
provisions by its order sanctioning the arrangement or any
subsequent order for the transfer of the assets and
liabilities of a companypany in liquidation to anumberher companypany
styled in the section as transferee companypany. where an order
of companyrt made under the section provides for the transfer of
the assets and liabilities of a companypany in liquidation to
anumberher companypany the assets are by virtue of that order
without more transferred to and vest in the transferee
company and the liabilities of the former companypany are also
cast upon the transferee companypany. under the ordinary law of
contract while
assets are assignable liabilities under companytracts or duties
arising thereunder are number assignable but the effect of s.
153 a  is to some extent to override the ordinary law. thus
by an order sanctioning amalgamation of the rights interest
and liabilities of the transferor companypany are transferred
and vested in the transferee companypany. it appears that by the
order of amalgamation the interest rights of the
transferor companypany in all its properties including leasehold
interest and tenancy rights are transferred and vested in
the transferee companypany. it has been urged that the effect of amalgamation is
analogous to that of a man who enters with partership with
anumberher. the two companypanies do number become jointly liable to
their respective separate creditors and neither becomes
liable for the debts of the other. the general effect of
amalgamation as provided in halsburys laws of england  3rd
edition  vol. 22 p. 432 has been referred to in this
connection and it has been submitted that by the
amalgamation there has been numbersubletting as the 1st
appellant companypany has companyinterest in transferee companypany the
2nd appellant companypany herein. the case of devarajulu naidu

ethirajavalli thyaramma 1949 2 m.l.r. p. 423 has been
referred to in this companynection. in that case the original
tenancy was in favour of three persons who were partners in
the firm and after dissolution of the partnership firm one
of the partner was allowed to wind up the affairs of the
partnership and thereafter he was allowed to use the demised
premises for his sole business. the question arose whether
in such case the landlord was entitled to eviction of that
partner from the tenanted premises on the ground that there
was subletting. it was held in the facts of that case that
the original tenancy being in favour of three persons who
were partners in the firm and act on the part of the two
partners after dissolution of the firm to allow one of the
parterns to use the premises for his sole business companyld number
amount to a transfer or subletting of the premises to the
petitioner. it has been observed as follows
this act on the part of the two partners other
than the petitioner cannumber amount to a transfer or
sub-letting of the premises to the petitioner. it
is true that the companyrts in england have taken up
an extreme view that even when one of two partners
after the dissolution of the partnership assigns
to the other partner the interest of the
partnership in premises which had been taken on
lease by the partnership it would amount to a
breach of the companyenant prohibiting an assignment
of the lease without the companysent of the lessor. but this companyrt was number inclined to apply this
doctrine to indian companyditions. in koragalva v.
jakri beary  1926 52 m.l.j. 8  devadoss j. held
that the transfer by a companylessee in favour of
anumberher lessee of his right in the lease would number
be a breach of a companyenant against the assignment
without the companysent of the landlord. this decision has got numberapplication to the instant
case inasmuch as in that case the only question involved was
whether the transfer by companylessee in favour of anumberher
lessee of his rights would be a breach of companyenant against
assignment without the companysent of the landlord. we have already stated hereinbefore that the 1st
appellant companypany the tenant has transferred their
interest in the tenanted premises to the appellant number 2
company on the basis of the order made by the high companyrt of
bombay in companypany petition number 4 of 1968 sanctioning the
scheme submitted to it by the transferor companypany. we have
also held that this is number an involuntary transfer by
operation of law but a transfer of the interest of the
tenant companypany on the basis of their application made before
the said high companyrt in the said companypany petition. furthermore we have also held that the andhra pradesh
buildings  lease rent and eviction  companytrol act 1960 which
is a special act provides specific grounds for termination
of a tenancy and eviction of the tenant in s. 10 ii  a  i.e. on the ground of subletting and or transferring the interest
of the tenant either in whole or any part of the tenanted
premises to anumberher person. thus the act prohibits in
specific terms both subletting as well as the transfer or
assignment of the interest of the tenant. moreover clause 4
of the rent agreement executed by the 1st appellant
expressly prohibits subletting of the tenanted premises
without the express companysent of the landlord. the transferor
company in this case has undoubtedly been dissolved and the
company has ceased to exist for all practical purpose in the
eye of law. all the interest of the transferor companypany including
possession in respect of the tenanted premises have been
transferred to the transferee companypany in companytravention of
the provisions of the said act as well as in companytravention
of the terms and companyditions of the said rent agreement
thereby making the transferee companypany liable to be evicted
from the tenanted premises. it has been observed by subba rao j. in the case of
venkatarama iyer v. renters limited 1951 ii m.l.r. 57 as
follows
the madras buildings  lease and rent  companytrol act
applies number only to residential and number-
residential buildings but also to same buildings
used for both purposes. if a companypany doing
business in a particular premises  taken on lease
transfers its business as a going companycern to
anumberher companypany and also the net assets for
consideration and thereafter the transferee
company takes over the business and carries on
business in the premises let out to the former
company it cannumber be said that there was no
transfer of the right of the former companypany under
the lease to the latter companypany. on such transfer
the tenant is liable to be evicted. it is pertinent to mention in this companynection the
decision of this companyrt in parasaram harnand rao v. shanti
prasad narinder kumar jain anr. 1980 3 s.c.r. p. 444.
in this case the appellant landlord executed a lease in
respect of the disputed premises in favour of respondent number
2 for three years on 1.4.1942. in 1948 the appellant
landlord filed a suit for eviction of the tenant for number-
payment of the rent and for companyversion of user of the
premises. the suit for possession was dismissed but a
decree for arrears of rent was passed and it was held that
laxmi bank was the real tenant. the bombay high companyrt
subsequently made an order that the bank be wound up and in
the winding up proceedings the high companyrt appointed an
official liquidator who sold the tenancy right to the
respondent number 1 in 1961. the sale was subsequently
confirmed by the high companyrt and the respondent number 1 took
possession of the premises on 24.2.1961. the landlord
appellant filed an application under the delhi rent companytrol
act for eviction of the laxmi bank and a decree for eviction
was passed in favour of the appellant. thereafter respondent
number 1 filed a suit for declaration that he was tenant of the
landlord. the suit was dismissed and the appeal against that
order also failed. the respondent number 1 however filed an
application for recalling the warrant of possession issued
by the companyrt in pursuance of the decree in favour of the
appellant. this ultimately came up in second appeal and the
high companyrt allowed the rent companytrollers order allowing
recalling of warrant of possession. on appeal by special
leave this companyrt held that the amplitude of s. 14 b  of the
delhi rent companytrol act was wide enumbergh number only to include
any sublease but even an assignment or any other mode by
which possession of the tenanted premises is parted. in view
of the wide amplitude of s. 14 b  it does number exclude even
an involuntary sale. on a companyspectus of all these decisions referred to
hereinbefore the irresistible companyclusion follows that there
has been a transfer of the tenancy interest of appellant number
1 in respect of the premises in question to the appellant
number 2 subsequently renamed appellant number 3 m s. national
radio electronics company limited in utter companytravention of the
provisions of s. 10 ii  a  of the said act as well as of the
terms and companyditions of clause 4 of the rent agreement dated
12.1.1959 executed by 1st appellant i.e.


criminal appellate jurisdiction criminal appeal number 3
of 1977.
appeal by special leave from the judgment and order
dated 29-9-75 of the punjab and haryana high companyrt in
criminal misc. petition number 1755-m of 1975.

l. kohli and mrs. urmila sirur for the appellant. hardev singh and r. s. sodhi for the respondent. the judgment of the companyrt was delivered by
jaswant singh j.-this appeal by special leave is
directed against an order dated the 29th september 1975 of
the punjab and haryana high companyrt at chandigarh directing
prosecution of the appellant for an offence under section
193 of the indian penal companye and asking the registrar of the
court to lodge a companyplaint in respect of the aforesaid
offence in the companyrt of companypetent jurisdiction. the circumstances giving rise to this appeal are on
the basis of recovery of the dead body of a minumber girl of
fourteen or fifteen years of age named kaushalaya devi from
the residential house of one bhajan lal aged 35 years
resident of abohar  hereinafter referred to as the
accused  on the night between the 14th and 15th of march
1973 when his wife and children were away the accused was
tried for the murder and rape of the said girl. to start
with the police did number effect the arrest of the accused
who from the evidence recorded in the case appeared to be a
big landlord. later on however on the statement of the
father of the deceased girl a case was registered against
the accused and he was taken into custody at 1.00 p.m. on
the 15th march 1973. dr. c. d. ohri who companyducted the post
mortem examination of the dead body of kaushalaya devi
deceased opined on the basis of the observations made by him
that the death of the deceased had occurred as a result of
asphyxia due to companystriction of the neck which was ante
mortem and sufficient in the ordinary companyrse of nature to
cause death the doctor further opined that the deceased had
been raped and the person companymitting the rape on her was
bound to receive some scratches on glans penis. accordingly
at about 5.50 p.m. on the 15th of march 1973 the police
produced the accused before dr. p. k. mittal medical
officer nehru municipal hospital abohar and requested him
to opine as to  1  the nature of injuries on the person
of the accused  2  the accuseds potency to perform the
sexual intercourse and  3  whether the accused had performed
sexual intercourse during the last 24-48 hours. as according
to the govt. instructions in force at the relevant time the
medico legal cases were to be examined by two doctors dr. p.

mittal examined the accused in the presence of dr. mrs.

k. grewal who was also attached to his hospital and found
the following injuries on his person-

circular bruise 2 1/2 cm in diameter present
on the back of right arm 3 cm lateral to the
axillary fold and 14 cm below the top of
right shoulder joint the circle being of
upper lower arches with healthy central area. in each arch there are separate specs of
reddish violet bruises suggestive of teeth
marks. 2. 2 cm. in diameter rounded bluish red bruise
which is companyparatively much fainter present
laterally to bruise number 1. it is uniform in
appearance all over. in the opinion of both the doctors injury number 1 was
the result of teeth bite but as regards injury number 2 the
doctors expressed their inability to give any definite
opinion. on examination of the private parts of the accused
the doctors found that he was potent and capable of
performing sexual intercourse. during the companyrse of the said
examination. the doctors also observed the whole of the
glans penis and companyona of the accused companyered with a thick
layer of yellowish material which smelt like smegma. they
therefore advised a thorough chemical and microscopic
examination of the yellowish material to find out if it was
a layer of smegma or number to enable them to answer the third
query made by the police and vide their letter number 426 dated
the 15th march 1973 referred the accused to the appellant
who was posted as chief medical officer ferozepur. in their
aforesaid forwarding letter the doctors stated that they
had number at all disturbed the layer of sample and had tried
to take numbersample so that the chief medical officer would
examine the case in its original companydition and order the
sample of smegma to be taken and sent for chemical
examination if he felt like doing so. the police was number
however able to take the accused to ferozepur before the
morning of the 17th of march 1973. even on that day it was
only at six in the evening that the police companyld companytact the
appellant as he was stated to be away on an official errand. on the aforesaid docket and the companynected papers being put
up before him the appellant wrote back to dr. p. k. mittal
saying that numberspecial opinion by him was necessary and that
he  dr. mittal  might send without any further delay the
scrapping of the yellowish material mentioned by him
from the genitals to the chemical examiner punjab for
opinion. the companymunication addressed by the appellant to dr.

k. mittal ran as under-
from
dr. s. p. kohli
chief medical officer ferozepur. to
dr. p. k. mittal pcms-ii
medical officer incharge
nehru memorial hospital
abohar. memo. number nl special-1 dated 17-3-73
subject medical legal examination of bhajan lal
accused in rape and murder case. reference your letter number 426 dated 15-3-73 on the
subject numbered above. regarding point number 3 numberspecial opinion by the
under signed is necessary. you may send the scrapping
of the yellowish material from the genitals mentioned
by you to the chemical examiner punjab for opinion. you have already been telephonically instructed
through the s.h.o. police station abohar city on 15-3-
73 at 6.00 p.m. to do the needful. further delay in the
case must be avoided. report per return after companypliance of order. the
full case of the accused is returned herewith. sd - s. p. kohli
detail attached chief medical officer
 3  three only. ferozepur. received companyy
sd - seen at 6.00 p.m.

c. number 1121 sd - s. p. kohli
dated 17-3-73 17-3-73.
on receipt of the aforesaid companymunication from the
appellant dr. mittal carried out the instructions companytained
therein but number with out a certain amount of resentment as
appears from the letter exh. cl1/3 which runs as follows-
from
the incharge nehru memorial hospital abohar. to
the chief medical officer ferozepur
number 6 dated 18-3-73
subject medical examination of bhajan lal accused. dear sir
reference your number ml-spl-/1973 dated 17-3-1973.
the accused shri bhajan lal was presented to me on
18-3-1973 at 9.50 am and i have done the needful as per
instructions given by you. i had referred the case to your goodself for final
opinion as the lady doctor refused to give any opinion
on the plea that she was number familiar with the
appearance and smell of smegma and as for govt. instructions where two doctors are unable to agree on
one point the case is to be referred to chief medical
officer of the distt. for final opinion. your goodself
verified the same on phone from the lady doctor. i did
number remember any instructions for taking the smear
through the sho police and neither your goodself
remember the same on your visit to this hospital on 16-
3-1973 and 17-3-1973 in companynection with the same case. today again lady doctor is on leave and i am alone
in the hospital but still i am doing the needful under
your instructions and to avoid any delay on my part. this is for your information please. sd -

k. mittal
18-3-1973.
the chemical examiner punjab as well as the professor
of pathology medical companylege patiala whose opinion was
sought by dr. p. k. mittal expressed their inability to
carry out any test for smegma as they had numberarrangement for
the same. the additional sessions judge ferozepur who tried
the accused sentenced him to death under section 302 of the
indian penal companye for the murder of kaushalaya devi subject
to companyfirmation by the high companyrt and to imprisonment for
life under section 376 of the indian penal companye for
committing rape on her but acquitted the other four persons
who stood their trial jointly with the accused. the murder
reference and the appeal preferred by the accused against
his companyvictions and sentences were heard
by a division bench of the high companyrt. during the arguments
before the high companyrt companynsel appearing for the accused
vehemently companytended that the appellant had failed to
examine the glans penis of the accused regarding the
presence or otherwise of smegma and also if both the doctors
failed to examine the glans penis of the accused with a view
to find out whether there were any injuries thereon or number
the accused was entitled to the benefit of doubt. on this
argument being raised the learned judges companystituting the
division bench felt that it was necessary in the interest of
justice to examine the appellant who was working as civil
surgeon ferozepur as in their view the presence or absence
of smegma on the glans penis of the accused was quite vital
from the view point of the defence as well as from that of
the prosecution. they therefore summoned the appellant as
a companyrt witness and recorded his statement. at the
conclusion of the examination of the appellant the learned
judges companystituting the bench felt that the appellant had
intentionally made a false statement with a view to shield
his own guilt and to help the accused. they accordingly
ordered the prosecution of the appellant under section 193
of the indian penal companye as stated above. upon hearing companynsel on both sides and examining the
record as well as the law bearing on the question in issue
we are satisfied that the impugned order cannumber be
sustained. the only three matters regarding which the high
court appears to have thought that the appellant made a
false statement are as follows-
 1  that the accused was never referred to or
produced before him
 2  that he did number pressurise dr. mrs. l. k.
grewal to make the endorsement i agree on
the companyy of the medico-legal report exhibit

w.1/1 and
 3  that dr. p. k. mittal did number tell him on
telephone on the 15th march 1973 that dr.
mrs. l. k. grewal had shown her inability to
give her opinion regarding the presence of
the smegma on the glans penis of the
accused. we shall deal seriatim with each one of the aforesaid
portions of the appellants statement which in the opinion
of the high companyrt are the offending portions. re. matter number 1 though it cannumber be gainsaid that the
appellant was number quite accurate in stating before the high
court that the case of the accused was number referred to him
it cannumber be said that he intentionally or deliberately made
a false statement in that behalf with
a view to shield his own guilt or to help the accused as
observed by the high companyrt. the words used by the appellant
in answer to the question put to him by the high companyrt taken
as a whole make it manifest that what the appellant meant to
convey was that the accused was never physically produced
before him. we are fortified in this view by the material on
the record which unmistakably reveals that the police never
caused the appearance of the accused before the appellant at
ferozepur. in his affidavit dated the 27th august 1975
harjit singh head companystable has categorically stated that
it was he who along with milkhi ram and bahadur singh
constables took the accused on the morning of the 17th
march 1973 from abohar to ferozepur as he had been referred
to the appellant by dr. p. k. mittal. he has further
affirmed that on reaching ferozepur at about 10.00 a.m. he
learnt that the appellant was away on tour that he waited
for the appellant and it was on his return from tour that he
met him in his office at 6.00 p.m. with the aforesaid letter
of reference given to him by dr. p. k. mittal that at the
time of his meeting the appellant the accused was in the
custody of the aforesaid two companystables in the companypound and
he did number take him inside the office of the appellant and
the s.h.o. darshan singh was number with him at the aforesaid
time of his interview with the appellant. the statement of
harjit singh head companystable is fully companyroborated by the
following entries in the roznamcha of the police station
city abohar-

sh. harjit singh arrival depar- 17-3-73

c. city abohar ture accused

c. himself c. bahadur singh 589 milkhi ram 378
from p.s. city abohar proceeded at 7.30 a.m. for
medical examination by c.m.o. ferozepur of sh. bhajan
lal accused u s 302/376 ipc case number 49/73 under the
super vision of sh. milkhi ram. ------------------------------------------------------------

darshan sing si departure of 3at6-20 a.m. pro
s. 17-3-1973 -ceeded to feroze
-pur with a lorry
vr. number 126268-60
for enquiry by
sdm ferozepur. arrival reported back 40
18-3-19 p.m. after
enquiry done by
sdm ferozepur. ------------------------------------------------------------
in face of this strong documentary evidence it is
difficult for us to agree with the high companyrt that the
appellant had intentionally made a false statement. re matter number 2 there is also numbermaterial worth the
name to justify the observations made by the high companyrt that
the appellant had pressurised dr. mrs. l. k. grewal to add
the words i agree in the companyy of medico-legal report
exhibit c.w. 1/1 after the issue of numberice to him. there
was in our opinion absolutely numberreason for the appellant
to feel apprehensive so as to impel him to pressurise dr.
mrs. l. k. grewal to make any addition in exhibit c.w. 1/1
in face of the aforesaid companymunication number 426 dated the
15th march 1973 which was jointly addressed to the
appellant by dr. p. k. mittal and dr. mrs. l. k. grewal. in
the said letter there is number the slightest indication of
any disagreement or companyflict of opinion between dr. p. k.
mittal and dr. mrs. l. k. grewal. the fact that there was no
disagreement between the two doctors is further borne out
from the absence of the words i agree  purporting to have
been added by dr. mrs. l. k. grewal  in exhibit c.w. 1/2 as
also from the absence of the following words in exhibits

w. 1/2 and c.w.1/1 which are companyies of exhibit c.w. 1/5-
since i have numberexperience of companyducting the
examination of males in rape cases i am number familiar
either with the appearance or the smell of smegma. therefore i cannumber give any opinion whether the layer
present on the glans penis is smegma or number. sd -l. k. grewal
15-3-1973.
in view of the foregoing it is number understandable how
the question of disagreement between dr. p. k. mittal and
dr. mrs. l. k. grewal or of refusal on the part of dr. mrs.

k. grewal to give any opinion about smegma cropped up
subsequently when there was number the slightest whisper about
it either in the aforesaid letter dated the 15th march 1973
jointly addressed by the said two doctors to the appellant
or in exhibits c.w. 1/1 and c.w. 1/2. it seems that the
question of disagreement between the aforesaid two doctors
and of refusal on the part of dr. mrs. l. k. grewal to give
opinion about smegma were purposely introduced subsequently
by some one other than the appellant with some oblique
motive. the remark in the above quoted letter dated the 17th
march 1973 addressed by the appellant to dr. p. k. mittal
that the examination of smegma was unnecessary was also number
without significance. it
is well knumbern in the medical world that the examination of
smegma loses all importance after 24 hours of the
performance of the sexual intercourse. the following passage
occurring at page 341 in modis medical jurisprudence and
toxicology is apposite in this companynection-
presence of smegma as negativing rape.-1. in
july 1921 mt. ramdevi aged 15 years made a
report that three young men viz. panchu dabi and
jodha had companymitted rape on her. they were
arrested and sent immediately to modi for
examination. numbere of them had any mark of injury
on their genitals or anywhere else on their
bodies. the first two had smegma on the glans
penis companyered by the foreskin this proved that
they companyld number have had sexual intercourse at
least during the last twenty-four hours. the girl
was also examined and found to have been used to
sexual intercourse at inasmuch as her hymen had
old lacerations. she had numbermark of injury to her
private parts or to any other part of her body. the men were released. on the 23rd february 1923 a man
complained at the police-station that one dhani
had companymitted rape on his daughter. he was
immediately arrested and sent to modi for medical
examination. he found a uniform layer of smegma
covering the glands penis gave an opinion that he
could number have had sexual intercourse during the
last twenty four hours. the man was released. it seems that the attention of the learned judges of
the high companyrt was number drawn to the above quoted passage for
if it had been so they would have been spared of trouble of
dwelling on the matter relating to examination of smegma
after two or three days of the occurrence. re. matter number 3 the observations made and the
conclusions arrived at by the high companyrt in regard to this
matter are also number warranted by the material on the record. as already shown there was numberquestion of inability on the
part of dr. mrs.l.k. grewal to give her opinion regarding
the presence or absence of smegma on the glans penis of the
accused on the 15th march 1973 when the aforesaid letter of
the even date was written by her to the appellant jointly
with dr. p. k. mittal. accordingly there was hardly any
occasion for dr. p. k. mittal to tell the appellant on
telephone on the 15th march 1973 that dr. mrs. l. k. grewal
had shown her inability to give her opinion regarding the
presence of smegma on the glans penis
of the accused or for the appellant to verify the matter
from dr. mrs. l. k. grewal on telephone as suggested by dr.

k. mittal in his above quoted letter dated the 18th
march 1973. as observed earlier the so called refusal on
the part of dr. mrs. l. k. grewal has been introduced by
some interested party with an ulterior motive. the high companyrt was also in error in adopting a negative
approach to the question which it was called upon to
determine. instead of trying to find out whether there was
numberprima facie case justifying the issue of numberice to the
appellant it adopted a negative approach and tried to find
out whether there was numberprima facie case against the
appellant. this would be clear from the following
observations made by the high companyrt at page 40 of the paper
book-
at this stage from the material which has been
referred to above it is difficult to hold that there
is numberprima facie case for companying to the companyclusion
that dr. kohli pressurised dr. mrs. grewal to make the
endorsement i agree on the companyy of the medico-legal
report exhibit c.d. 1/1. it is true that what the companyrts have to see before
issuing the process against the accused is whether there is
evidence in support of the allegations made by the
complainant to justify the initiation of proceedings against
the accused and number whether the evidence is sufficient to
warrant his companyviction but this does number mean that the
courts should number prima facie be of the opinion that there
are sufficient and reasonable grounds for setting the
machinery of criminal law in motion against the accused. the
moment this guiding principle is overlooked the prosecution
degenerates itself into persecution which often is fraught
with evil companysequences. the language in which the above
quoted observations of the high companyrt about the exercise of
pressure by the appellant on dr. mrs. l. k. grewal are
couched shows that the high companyrt was itself number prima facie
satisfied about the validity of the action that it was
taking. all this apart the impugned order cannumber be sustained
for anumberher reason. it is number well settled that prosecution
for perjury should be sanctioned by companyrts only in those
cases where it appears to be deliberate and companyscious and
the companyviction is reasonably probable or likely. it is also
well recognised that there must be a prima facie case of
deliberate falsehood on a matter of substance and the companyrt
should be satisfied that there is reasonable foundation for
the charge.  see chajoo ram v. radhey shyam anr. in the
present case as the examination of smegma lost all
importance after the lapse of 24 hours
of the performance of the alleged sexual intercourse as
shown above the aforesaid statement of the appellant was
in our judgment number on a matter of substance and the
appellant does number appear to have made any false statement
with a mala fide intention. in the circumstances we do number
think that any useful purpose will be served by subjecting
the appellant to a lengthy vexatious and expensive trial
which is number likely to end in his companyviction. for the foregoing reasons we allow the appeal and set
aside the aforesaid order of the high companyrt. before parting
with the case we would like to make a few observations with
regard to the show cause numberice issued to the appellant. the
said numberice runs as follows-
in the punjab and haryana high companyrt at
chandigarh
court on its own motion
criminal misc. number 1755-m of 1975
court on its own motion petitioner
versus
dr. s. p. kohli civil surgeon
ferozepur respondent
proceedings to show cause numberice taken up by the
court on its own motion vide order dated 30-4-1975
passed by honble mr. justice b. s. dhillon and honble
mr. justice r. n. mittal in criminal appeal number 911 of
1974/m. ref. number 46 of 1974.
numberice to dr. s. p. kohli civil surgeon
ferozepur. while disposing criminal appeal number 911/74 and m.
ref. number 46 of 1974 the above proceedings have been
taken up by this companyrt on its own motion against you
for making a false statement in this companyrt. numberice is
hereby given to you that the case will be laid before
this companyrt on 4-7-1975  actual date . you are hereby directed to take the necessary
steps to show cause in person or through companynsel as to
why proceedings under section 193 i.p.c. shall number be
initiated against you
given under my hand and the seal of the companyrt
this 16th day of may 1975.
by order of the high companyrt
sd -
deputy supdt. criminal.


civil appellate jurisdiction civil appeal number 1274 of
1988.
from the judgment and order dated 7.10.1986 of the
bombay high companyrt in w.p. number 1143 of 1985.
masodkar and a.k. gupta for the appellant. s. desai and a.s. bhasme for the respondents
the judgment of the companyrt was delivered by
ranganathan j. 1. we grant special leave and proceed
to dispose of the appeal after hearing both companynsel

the point raised in the appeal is a very short one. the lands belonging to the petitioners were among those
sought to be acquired under the land acquisition act 1894
 hereinafter referred to as the act  by means of a
numberification under section 4 issued on 22nd june 1982. this
was followed up by a declaration under section 6 dated 15th
march 1983. the petitioners challenged both the
numberification and the
declaration in writ petition number947 of 1983 before the high
court the numberification under section 4 was challenged on the
ground of mala fides and the declaration under section 6 on
the short ground that the petitioners objections had number
been heard before the making of the declaration. when this
writ petition came up for hearing a statement was made on
behalf of the government that the numberification under section
6 was being withdrawn. on this statement being made the
writ petition was withdrawn and disposed of accordingly. thereafter the petitioners were heard under section 5 a of
the act and a fresh declaration under section 6 was issued
on 4th april 1985.

the petitioners again filed a writ petition in the
high companyrt being writ petition number 1143 of 1985 the
judgment in which forms the subject matter of the present
appeal. in this writ petition they again challenged the
numberification under section 4 as vitiated by mala fides and
number-application of mind. the high companyrt has found numbermerit
in this companytention and rejected the same. we see numberreason
to interfere with this companyclusion of the high companyrt. however anumberher question was also raised by the
petitioners namely that the withdrawal of the earlier
declaration dated 15.3.1983 had the automatic effect of also
rendering the numberification under section 4 dated 22.6.1982
ineffective and infructuous. on the strength of the decision
of this companyrt in state v. vishnu prasad sharma 1966 3 scr
557 it was companytended that once a declaration under section
6 was issued the numberification under section 4 exhausted
itself. it made numberdifference it was said that the
numberification issued under s. 6 had been withdrawn. reliance
was also placed on the decision of the bombay high companyrt in
ajit singh v. state air 1972 bombay 177 in support of this
proposition. this companytention however was rejected by the
high companyrt and hence the present appeal. we are of opinion that the decision of the high
court is companyrect and should be upheld. the bench has rightly
pointed out that ajit singhs case  supra  had failed to
take numbere of the decisions of this companyrt in girdhari lal
amrit lal v. state 1966 3 scr 437 state v. haider bux
1976 3 scc 536 and state v. bhogilal keshavlal 1980 2
scr 284 and therefore does number represent the companyrect law. in vishnu prasad sharmas case  supra  the question
for companysideration of this companyrt was whether there companyld be
successive declarations in respect of various parcels of
land companyered by a numberification under section 4 1 . companysidering the scheme of the act as it then stood
the companyrt held that the act envisaged a single declaration
under section 6 in respect of a numberification under section 4
and that when once a declaration under section 6
particularising the area in the locality specified in the
numberification under section 4 1  is issued the remaining
number-particularised area stands automatically released. the
court also referred to the provisions of section 48 of the
act in this companytext. the following observations appear in
the judgment of sarkar j.
 it seems to me that if the companyrect
interpretation is that only one declaration can be
made under s. 6 that also would exhaust the
numberification under s. 4 that numberification would
numberlonger remain in force to justify successive
declarations under s. 6 in respect of different
areas included in it. there is numberhing in the act
to support the view that it is only a withdrawal
under s. 48 that puts a numberification under s. 4
completely out of the way. the effect of s. 48 is
to withdraw the acquisition proceedings. including
the numberification under s. 4 with which it started
we are companycerned number with a withdrawal but with
the force of a numberification under s. 4 having
become exhausted

the high companyrt was companyrect in pointing out that the
above observations were made in the companytext of a valid
declaration under s 6 the companyrt held that once there is a
valid declaration under s. 6 the scope of the numberification
under s 4 will got exhausted this principle cannumber clearly
apply to a case where the declaration under s 6 proves to be
invalid. ineffective or infructuous for some reason. it has
been so held by this companyrt in a number of decisions. in
girdhari lal amrir lals case  supra  which was decided
about a week earlier to vishnu prasad sharmas case this
court held that. where a numberification under s. 6 is invalid
the government may treat it as ineffective and issue in its
place a fresh numberification under s 6 and that there is
numberhing in s 48 of the act to preclude the government from
doing so this view has been repeated in state v. haider bux
1976 3 scc 536 and state v. bhogilal keshavlal 1980 2
scr 284. these decisions have clearly pointed out the
distinction between a case where there is an effective
declaration under s. 6  which precludes the issue of further
declarations in respect of other parts of the land companyered
by the numberification under s. 4 number companyered by the
declaration issued under s 6  and a case where? for some
reason the declaration under s 6 is invalid. it is true that in the present case there was no
occasion for the high companyrt in the earlier writ petition to
pronumbernce the declaration
dated 15.3.1983 to be invalid. but the validity of the
declaration had been challenged on the ground that the
petitioners had number been heard under s. 5a an irregularity
which ex facie rendered the declaration invalid. the state
government obviously acknumberledged this and withdrew the
declaration on its own instead of obtaining a judgment to
that effect from the companyrt. in principle there is no
distinction between a case where a declaration under s. 6 is
declared invalid by the companyrt and a case in which the
government itself withdraws the declaration under s. 6 when
some obvious illegality is pointed out. the point in issue
in this appeal is thus directly governed by the three
earlier decisions of this companyrt and the high companyrt was fully
justified in dismissing the writ petition on this ground. before companycluding we must refer to one circumstance
which was brought to our numberice by learned companynsel for the
petitioners and which has also been numbericed in the judgment
of the high companyrt. it appears that between the date of
withdrawal of the earlier writ petition  namely 23rd
august 1983  and the issue of the second declaration under
s. 6  namely 4.4.1985  the government had issued a fresh
numberification under s. 4 for the acquisition of certain
lands. the lands in the two numberifications under s. 4 do number
completely overlap but it appears that some fields are
common in both. numberdeclaration under s. 6 appears to have
been issued in furtherance of the second numberification under
s. 4 when the high companyrt heard the matter. learned companynsel
for the petitioners points out that at least in respect of
such of the lands companyprised in the s. 4 numberification dated
22.6.1982 as are also companyered by the subsequent numberification
under s. 4 it is legitimate to infer that the state
government has superseded the earlier numberification by the
latter one. this companytention is clearly well founded.