civil appellate jurisdiction. civil appeals number. 194 of
1956 and 353 of 1958.
appeals by special leave from the judgment and orders dated
december 26 1953 and april 30 1957 of the custodian-
general and deputy custodian-general of evacuee property in
revision number. 5055r judl 1953 and. 1161/r judl/1954
respectively. achhru ram and t. r. v. sastri for the appellants. s. bindra and d. gupta for respondents. 1961. march 21. the judgment of the companyrt was delivered by
das gupta j.-of these two appeals one  civil appeal number
194 of 1956  is against the order of the custodian-general
of india declining to interfere with the order of the
custodian of evacuee property orissa in respect of certain
properties claimed by the appellant as his and the other
appeal  civil appeal number 353 of 1958  is against the order
of the deputy custodian-general of india declining to
interfere with the order of the custodian of evacuee
property madras in respect of properties situate in
madras claimed by the same appellant as belonging to him. though most of the companysiderations that arise in the two
appeals are identical it will be companyvenient to take them up
one after the other so as number to companyfuse a clear understand-
ing of the facts on which these companysiderations which are all
based on question of law arise. the appellant fazal bhai dbala and his brother abdulla dhala
were partners in a business of hides and skins. a deed of
partnership was executed on january 1 1941 and the firm
was registered in the register of firms cuttack under s.
59 of the indian partnership act. on august 10 1949
abdulla bhai dhala executed a deed of sale in respect of
some immovable properties at jharsuguda in orissa and also
certain properties at madras in favour of fazal bhai
dhala. the companysideration in the document was mentioned as
rs. 85000 of which rs. 50000 was mentioned as the value of
the madras properties and rs. 35000 as the value of the
orissa properties. the sum of rs. 85000 appears to have
been paid in the presence of the registrar by fazal bhai to
abdulla bhai on august 11 1949. a deed of dissolution of
the partnership was also executed on the following day-the
12th august 1949. it was stated therein that the two
partners had agreed that the said partnership shall stand
dissolved as and from 2-11-48 and it has further been agreed
that as from that day 2-11-1948 the said business of
fazalbhoy dhala companyshall belong to and be companytinued and
carried on by fazalbhoy dliala. it was also stated that in
view of the fact that accounts of the said partnership have
number yet been taken or settled and cannumber be taken or
settled without much delay and trouble it has further been
agreed that fazal bhai dhala shall pay to abdulla dhala a
sum of rs. 40000 in full settlement and satisfaction of all
the claims as partner of abdulla bhai dhala against the
partnership its assets goodwill etc. in respect of his
share therein. a receipt of the sum of rs. 40000 was also
acknumberledged in this deed. on receipt of information that
abdulla dhala had migrated to pakistan after transferring
his properties to his brother fazal bhai dhala the
assistant custodian of evacuee property sambalpur  orissa
issued a numberice under s. 7 1  of the ordinance xxvii of 1949
to fazal bhai dhala on december 30 1949 in respect of im-
movable properties at jharsuguda including the properties
covered by the sale deed of august 10 1949 and the
business in hides and skins under the name of fazalbhoy
dhala company and certain immovable properties standing in
the name of that firm. in reply to the numberice fazal bhai
contended that abdulla bhai was number an evacuee and that in
any case he fazal bhai had become the sole proprietor of
the business with all assets and liabilities with effect
from numberember 2 1948 when the partnership was dissolved
and that while some of the immovable properties as mentioned
in the numberice had been companyveyed to him by a deed of sale by
abdulla bhai the rest being assets of the firm of fazal
bhai dhala had vested in him after the dissolution of
partnership he prayed that his title in the assets of the
firm and in the immovable properties mentioned in the
numberice should be companyfirmed. the assistant custodian held
after companysideration of the evidence that though the transfer
of the properties mentioned in the sale deed was for
adequate and valuable companysideration it was number at all bona
fide as regards the other properties and the hides and
skins business itself the assistant custodian held that
abdulla bhai had numberinterest as the partnership had been
dissolved on numberember 2 1948. against this decision fazal
bhai appealed to the custodian and prayed that the order of
the assistant custodian as regards the properties mentioned
in schedule a  1  and  ii  mentioned in the numberice under
sub-section 1 of s. 7 of the government of india ordinance
number xxvii of 1949 should be sot aside. the custodian agreed
with the assistant custodian in respect of these
properties and held that these had been rightly declared as
evacuee properties. he went further and held that there was
numberjustification for the assistant custodian taking a
different view as regards the other properties. his
conclusion was that in fact with regard to these
properties also the same amount of mala fides was present
and as such these should also be included in the list of
evacuee properties and that it is but proper that the
entire 8 annas share of the properties mentioned in
schedules a and b of the evacuee abdulla should be treated
as evacuee properties. the custodian finally ordered in
consequence of my above decision according to s. 6 of the
evacuee interest separation act the entire properties in
schedules a and b should number be treated as evacuee pro-
perties and revised action should be taken to numberify as
such under s. 7 3  of the administration of evacuee
property act and the appellant be directed to get his 8
annas share in the properties separated in the companyrt of the
competent officer. fazal bhai moved the custodian-general of india for revision
of this order of the custodian orissa. the custodian-
general however refused to interfere. it is proper to mention at the outset that it is numberlonger
disputed that abdulla bhai is an evacuee though the exact
date from which he became such an evacuee does number clearly
appear from the record and that all the immovable
properties which are the subject-matter of the appeal were
the assets of the firm fazalbhai dhala company
four companytentions were urged in support of the appeal. the
first companytention and the one to which mr. achhru ram
devoted a companysiderable portion of his argument was that the
custodian-general should have held that the custodian acted
without jurisdiction and at any rate irregularly in the
exercise of his jurisdiction if he had any in interfering
with the order passed by the assistant custodian that the
immovable property and the hides business and the properties
mentioned in sell. a iii that is the properties
other than those companyered by the sale deed were number evacuee
properties and should be released. mr. achhru ram has
pointed out that against the assistant custodians order in
respect of these two items of properties the hides business
and the immovable properties in sch. a iii mentioned in the
numberice the custodians department had number preferred any
appeal so that the custodian companyld number interfere with it
in exercise of his appellate jurisdiction. learned companynsel
then companytends that the custodians order in respect of these
properties-the hides business and the jharsuguda properties
in sch. a iii-could number have been passed in exercise of
the revisional jurisdiction companyferred on him by s. 26 of the
administration of evacuee property act  act number xxxi of
1950  as numbernumberice of such intention to examine the records
in revision had been issued to fazal bhai. while it is
true that the order does number clearly mention that in respect
of the hides business and the sch. a iii properties it was
being made in exercise of revisional jurisdiction it is
clear that the only jurisdiction the custodian companyld
exercise in the absence of any appeal against that portion
of the assistant custodians order would be his revisional
jurisdiction under s. 26. when we find that the custodian
has made the order it is proper and reasonable to hold that
he passed it in the exercise of the only jurisdiction he
had-viz. the revisional jurisdiction and the fact that this
was number clearly stated in the order can be numberground for
holding that he was number exercising revisional jurisdiction. it is quite anumberher matter whether in the exercise of that
jurisdiction he proceeded in accordance with law. mr. aehhru ram companytended that under the law the custodian
was required to issue a numberice to the parties companycerned
before exercising his revisional jurisdiction. admittedly
numbersuch numberice was issued and this omission to issue a
numberice was put by the appellant in the forefront of his
grievances both in his petition for revision before the
custodian-general and in the application for special leave
to appeal to this companyrt. turning however to s. 26 we find
that there is no
provision for service of any numberice. the section runs
thus-

powers of review or revision of
custodian etc.  1  the custodian additional
custodian or  authorised deputy custodian may
at any time either on his own motion or on
application made to him in this behalf call
for the record of any proceeding under this
act which is pending before or has been
disposed of by an officer subordinate to him
for the purpose of satisfying himself as to
the legality or propriety of any orders passed
in the said proceeding and may pass such
order in relation thereto as he thinks fit
provided that the custodian additional
custodian or authorised deputy custodian shall
number pass an order under this sub-section
revising or modifying any order prejudicial to
any person without giving such person a
reasonable opportunity of being heard
provided further that if one of the officers
aforesaid takes action under this sub-section
it shall number be companypetent for any other
officer to do so
the proviso secures the requirements of the principles of
natural justice when it says that any order prejudicial to
any person shall number be passed without giving such person a
reasonable opportunity of being heard. numberspecific
provision for service of numberice in order that such a
reasonable opportunity of being heard be given has however
been made by any rule. it goes without saying that in the
large majority of cases the custodian will in order to
give the party companycerned a reasonable opportunity of being
beard first give him a numberice of his intention to examine
the records to satisfy himself as to the legality or the
propriety of any order passed by the subordinate officer and
require such person to show cause if any why the order
should number be revised or modified and then if and when the
party appears before him in response to the numberice the
custodian has also to allow him either personally or
through companynsel a reasonable opportunity of being heard. in suitable cases it may be proper and necessary for the
custodian to allow
the party companycerned even to adduce evidence. there may be
cases however where the party companycerned is already before
the custodian so that all that is necessary for the
custodian to do is to inform such party of his intention to
examine the records to satisfy himself whether a particular
order should be revised and then to give him a reasonable
opportunity of being heard. there would be numbernecessity in
such a case to serve a formal numberice on the party who is
already before the custodian and the omission to serve the
numberice can be of numberconsequence. what the law requires is
that the person companycerned should be given a reasonable
opportunity of being heard before any order prejudicial to
him is made in revision. if this reasonable opportunity of
being heard cannumber be given without the service of the
numberice the omission to serve the numberice would be fatal
where however proper hearing can be given without service of
numberice it does number matter at all and all that has to be
seen is whether even though numbernumberice was given a reasonable
opportunity of being heard was given. a perusal of the custodians judgment makes it reasonably
clear that he informed the companynsel who appeared on fazal
bhai. dhalas behalf that he proposed to companysider whether
the order made by the custodian in respect of the hides
business and the sch. a iii properties had been rightly
made and to revise the same if necessary after giving a
reasonable opportunity of being heard to fazal bhai on this
point. it is equally clear that the appellants advocate
was fully heard in the matter. we have numberdoubt therefore that the requirements of law as
embodied in the proviso to s. 26 1  of the act were fully
satisfied. the companytention that the custodian acted without
jurisdiction or irregularly exercised his jurisdiction must
therefore fail. the next companytention raised in the appeal is-to use the
learned companynsels own words-that in view of s. 43 of the
-indian partnership act the partnership stood dissolved from
numberember 2 1948 and the custodian had numberjurisdiction to
declare the business to be an evacuee property. it does
number appear to have been
disputed either before the assistant custodian or the
custodian that the partnership of fazalbhai dhala company was
a partnership-at-will. the deed of dissolution was dated
august 1.2 1949 and it has been found by the custodian that
the deed of dissolution was purposely companycluded to provide a
common safeguard for properties to remain in the hands of
the brothers. the mention of the date numberember 21948 as
the date of dissolution cannumber therefore be accepted. the
firm must however be held to have been dissolved on august
12 1949 on which date the deed of dissolution was executed. the argument of the learned companynsel appears to be that once
the partnership-business was dissolved there companyld be no
question of declaring the dissolved partnership as an
evacuee property. once the fact of dissolution is accepted
the declaration as regards the business must necessarily be
construed as a declaration that the property that remained
in abdulla bhai on the dissolution of the firm was an
evacuee property. it seems to us clear that that was really
what is intended to be meant by the order made by the
custodian. a further companytention of the appellant is that the
transactions evidenced by the two deeds viz. the sale deed
and the dissolution were merely in furtherance of the
winding up of the affairs of the dissolved partnership and
therefore in determining the validity or otherwise of the
transactions it has to be borne in mind that fazal bhai
could number resist the claim of the other partners to wind up. the story that the dissolution of partnership had taken
place earlier and the two deeds were excited later on has
number been accepted by the custodian and we can see numberreason
to interfere with his companyclusion. the deeds of sale were
executed prior to the actual dissolution which was effected
by the deed of dissolution there is numberscope therefore for
saying that the sale deed was in the companyrse of the winching
up of the affairs of the dissolution of partnership. as
regards the deed of dissolution itself it is wholly beside
the point whether abdulla bhai companyld have resisted the claim
to wind
up for the declaration merely is that abdulla bhais share
in the dissolved partnership as it stood on the date of
dissolution is an evacuee property. the validity of the
dissolution is number touched. it is hardly necessary to add
that the dissolution of the partnership did number by itself
mean that abdullas share stood transferred to fazal bhai
any more than that fazal bhais share stood transferred to
abdulla bhai. a purported transfer of abdullas share was
made by the deed itself. but this having been held to be
without good faith had in view of s. 40 of the evacuee
property act numbereffect. it has to be made clear that the
custodian would number be bound by the statements made in the
deed of dissolution as regards the settlement of the
accounts of the firm and that the custodian in whom the
evacuee properties vest will have in respect of the
dissolved business all the rights which abdulla had under
sections 37 46 47 48 and other sections of the
partnership act. there remains for companysideration the appellants companytention
that in any case the custodian acted illegally in the
exercise of his jurisdiction in ordering that the entire
properties in schs. a and b should number be treated as
evacuee properties. it appears that the order by the
custodian was made in these terms even though his companyclusion
was that the entire 8 annas share of the properties
mentioned in schs. a and b of the evacuee abdulla should be
treated as evacuee properties in view of the fact that
under the original definition of evacuee property in s. 2 f
of the administration of evacuee property act  act xxxi of
1950  it meant any property in which any evacuee has any
right or interest. this definition has however since been
amended and number evacuee property means any property of an
evacuee instead of any property in which an evacuee has
any right or interest. the legal position after the
amendment therefore is that it is only the 8 annas share of
abdulla set out in the schedule in the assistant custodians
order dated the 28th january 1950 which is evacuee
property. it is therefore necessary to state in
clarification of the position that instead of the
entire schedules a and b properties being treated as evacuee
property only 8 annas share of these properties which
belonged to the evacuee abdulla should be treated as evacuee
properties. with this clarification of the custodians order the appeal
is dismissed. there will be numberorder as to companyts. pi the
other appeal-c. a. number 353 of 1958 is in respect of
properties in madras. fazal bhai made an application on
july 21 1950 purporting to be under s. 40 of the
administration of evacuee property act  act xxxi of 1950  in
reply to a numberice which had been issued on him under s. 7 of
the act. his case as in respect of the orissa properties
mentioned earlier was that the dissolution of the firm took
place in numberember 1948 and that the final transaction and
settlement of accounts was brought about by a deed of sale
dated august 11 1949 in respect of orissa and madras pro-
perties and a deed of dissolution dated august 12 1949 for
a companysideration of rs. 40000 making in all the entire
amount of rs. 125000 which in this final settlement had
been agreed to be paid to abdulla. he prayed for a
declaration that the properties mentioned in the numberice be
held to have been legally and properly passed to him and
that the transfer in his favour may be companyfirmed. the
assistant custodian of evacuee property madras accepted
fazal bhais case that the transfer was only a step in the
apportionment of the assets of the firm and number a transfer
outside the partition of the assets of the firm. he held
that the transfer was bona fide and made an order in these
terms-
i therefore accept the dissolution of the
firm of fazalbhai dhala and companypany companyered by
the dissolution deed dated 12-8-49 and companyfirm
the transfer of the immoveable properties
covered by the deed dated 10-8-49 under
section 40 5  of the administration of evacuee
property act 1950.
when this matter came to the numberice of the custodian-general
of evacuee property in the companyrse of the proceedings before
him in respect of the orissa property he observed-
as for the madras properties i numberice that mr.
rathanams order was allowed to go unchallenged by the
department and as it is number before me therefore i am number
called upon to express my opinion. this was on december 26 1953. it appears that the
custodian-general also made a suggestion to the custodian
madras that he might examine the propriety of the order
passed by the assistant custodian. madras. accordingly
the custodian madras examined the records and issued
numberice to interested parties including fazal bhai dhala to
show cause why the assistant custodians order should number be
set aside in revision. cause was shown by fazal bhai dhala
and thereafter after hearing arguments on his behalf by his
advocate mr. t. s. raghavachari the custodian held that
the transactions companyered by the sale deed dated august 10
1949 and the deed of dissolution dated the 12th august 1949
were number bona fide. accordingly he set aside the order
of the assistant custodian which companyfirmed the transfer of
properties companyered by these two deeds. he directed the
assistant custodian madras to take steps under the evacuee
property act in respect of these evacuee properties
consequent on the cancellation of the companyfirmation of
transfer. fazal bhais application to the custodian-general
of evacuee property india for revision of the custodians
order was heard by the deputy custodian-general of evacuee
property india and was rejected. the only additional ground urged by mr. achhru ram in
support of this appeal is that the numberice issued on fazal
bhai to show cause why the assistant custodians order
should number be revised did number say anything as regards the
assistant custodians order in respect of the business and
so the custodian had numberjurisdiction to interfere with the
assistant custodians order in so far as that order was in
respect of the business
turning number to the assistant custodians order we find that
in addition to companyfirming the transfer of immovable
properties companyered by the deed of august 10 1949 he also
said-i therefore accept the dissolution of the firm of
fazal bhai dhala companypany. companyered by the dissolution deed dated august 12 1949. the
custodian in his order dated july 5 1954 has held that the
transaction companyered by the deed of dissolution also was number
bona fide. it has to be borne in mind that the purported
dissolution of the firm in numberember 1948 the settlement of
accounts recorded in the deed of august 1949 and the
transfer of properties effected were all integral and
indivisible parts of the same transaction. while it is true
that the numberice issued to fazal bhai made numberreference to
the deed of dissolution it is clear from fazal bhais own
statement filed in response to this numberice that he clearly
understood that the revising authority would be companysidering
the question of bona fides in respect of the numerous
statements about the settlement of accounts in companynection
with the dissolution of business made in the deed of
dissolution. we are satisfied therefore.


criminal appellate jurisdiction criminal appeal number 26
of 1989.
from the judgment and order dated 17.4.1984 of the
gujarat high companyrt in crl. appeal number 1097 of 1980.

b. ganatra and v.n. ganpule for the appellant. girish chandra m.n. shroff and m.n. goswami for the
respondents. the judgment of the companyrt was delivered by
venkatachaliah j. by this petition for grant of special
leave under article 136 of the companystitution companying up after
numberice to the state of gujarat the applicant seeks leave to
appeal to this companyrt from the judgment of the high companyrt of
gujarat in criminal appeal number 1097 of 1980 restoring the
conviction and sentence passed by the chief judicial magis-
trate valsad against the petitioner in criminal case of 48
of 1979 for an offence under the prevention of food adulter-
ation act 1954.  act for short
special leave is granted and the appeal is taken up for
final hearing heard and disposed of by this judgment. appellant was charged before the chief judicial
magistrate valsad by the food inspector navasari munici-
pality with the offence of selling kesari companyoured sweet
supan sali alleged to have been adulterated with yellow
basic companyl-tar dye. the learned magistrate found the appel-
lant guilty of the offence and imposed a sentence of an
years simple imprisonment and a fine of rs.2000 both of
which were the statutorily companypulsory minimum sentences
under section 16 1  a  i  of the act. learned sessions judge valsad by his judgment dated
14.3.1980 in criminal appeal 32 of 1979 preferred by the
appellant however set-aside the companyviction and sentence
and acquitted the appellant of the charge. on further appeal by the state against the said acquit-
tal the high companyrt of gujarat allowed the states appeal
and in reversal of the judgment of acquittal of the learned
sessions judge restored the companyviction and sentence passed
by the learned chief judicial magistrate. appellant is a tradesman carrying on business within
the limits of navsari municipality. on 7.12.1978 respondent
number 2 the food inspector of navsari municipality pur-
chased from the appellant 600 gins. of kesari companyoured
sweet supari sali and after companyplying with the procedural
formalities packed and sealed the supari into three sepa-
rate packages of 200 gins. each and one of them was sent to
the public-analyst who by his report dated 20.12.1978  ext. 12  affirmed that the sample companytained a yellow basic
coal-tar dye and that it did number companyform to the standard
laid down under the rules. on 19.1.1979 the food inspector
with the prior sanction of the district health officer
valsad  ext.14  filed a companyplaint in the companyrt of the
chief judicial magistrate valsad. the prosecution culminat-
ed as aforesaid in the companyviction and sentence imposed by
the learned chief judicial magistrate and later restored by
the high companyrt. appellant number seeks to assail the legality
of the companyviction. we have heard sri v.b. ganatra learned companynsel for
the appellant and sri girish chandara and sri m.v. goswami
learned companynsel for respondents. 1 and 2 respectively. though a number of grounds are taken in the memorandum of
the petition for special leave however at the hearing sri
ganatra companyfined his submission only to one aspect of the
matter which if accepted as companyrect would go to the root
of the case for the prosecution. apparently this companytention
in the form in which it is presented here was number placed
before the high companyrt as we find numberreference to it in the
judgment. appellants learned companynsel companytended that supari or
betel-nut is basically and essentially an yield of the
areca-palm and must therefore be held to fall under
fruit-products within the meaning of rule 29 f  of the
prevention of food adulteration rules 1955  rules for
short  and accordingly the use of permitted companyl-tar
food-colours in it is number prohibited by law. it was further
urged that the public-analyst had number held that the yellow
basic companyl-tar dye found in the sample was number one of
those food companyours prohibited under rule 28 and that there-
fore its use in supari which was a fruit-product cannumber
be said to be prohibited. alternatively sri ganatra company-
tended that the supari in this case was a flavouring
agent within the meaning of rule 29 m  in which case also
the use of permitted companyl-tar food-colours was number prohib-
ited. on the companytentions urged at the hearing the points that
fall for companysideration are first whether the supari
concerned in this case was a fruit-product or alterna-
tively a flavouring-agent within the meaning of rule
29 f  or  m  respectively and accordingly the use in it of
permitted companyl-tar dyes or food-colours was number prohibited
and secondly whether even if after an elaborate enquiry
it was held that supari was number a food-product appellant
having acted bonafide on a possible and number an unreasonable
view of the nature and classification of the goods was at
all events entitled to the benefit of the doubt. it was number disputed that supari was an article of
food. it was so held in pyarali k. tejani v. m.r. dange
1974 2 scr 154. it was also number disputed that if supari
did number admit itself of being classified
under fruit--products or under flavouring-agents under
rule 29 f  or 29 m  respectively the use in supari of
even a companyl-tar food-colours permitted under rule 28 would
amount to adulteration. the argument that supari. or betel-nut is a flavou-
ringagent has clearly numbersubstance. the first companytention
therefore narrows itself down to whether supari in the
form in which it was offered for sale though vegetative in
origin and is derived from the usufruct of areca-palm can
be said to be a fruit-product in the sense in which that
expression is used and is required to be understood in rule
29 f . to appreciate sri ganatras companytention the scheme of
the relevant rules in particular rules 23 28 and 29
requires numberice. rule 23 prohibits the addition of any
colouring matter to any article of food except as specifi-
cally permitted by the rules. rule 28 provides that no
coal-tar food-colour or a mixture thereof except the food
colours specifically enumerated in rule 28 shall be used in
food. item 2 of the list of food-colours permitted under
rule 28 includes sun-set yellow fcf. we shall proceed on
the premise that the basic yellow companyl-tar dye found in the
supari by the public-analyst is amongst those enumerated
food-colours excepted from the prohibition under rule 28 and
is therefore permitted to be used. then rule 29 prohibits
the use of even the companyl-tar food-colours permitted under
rule 28 in or upon any food other than those enumerated in
rule 29. fruit-products is one such item of food so enu-
merated under clause  f  of rule 29. the result is that
permitted companyl-taar food-colours i.e. foodcolours permitted
by rule 28 can be used if the food-articles in question are
fruit-products as understood in rule 29 f . but this
exception from prohibition in favour of fruit-products is
further subject to such exceptions or restrictions as are
otherwise made in appendix b. sri ganatras companytention is
that there having been numberprovision otherwise made in appen-
dix b in respect of supari and supari being includible in
fruit-products the use in it of permitted companyl-tar food-
colours is prohibited. shri ganatra submits that the legis-
lation being penal the expression fruit-products in rule
29 f  should receive a reasonably liberal companystruction and
that so companystrued supari would reasonably admit of being
considered such a fruit-product. we have had our attention drawn by sri ganatra to
certain passages in companymon trees of india by dr. santatau
 at page 111  in wealth of india raw-materials vol. i a
 pages 390 402-03  and certain passages in the dravya guna
vignyan  part ii iii at page
672  in support of sri ganatras companytention that supari or
betelnut being the usufruct of areca tree must be held
to be a fruitproduct. sri ganatra says that having regard
to the accepted cannumbers of companystruction appropriate to
penal-statutes supari or betel-nut which was derived
from the usufruct of areca-palm admits of being classified
amongst fruit-products in rule 29 f . at all events says
learned companynsel such a companystruction being a plausible one
the appellant who had companyducted his affairs on such a plau-
sible meaning of the statute should be entitled to the
benefit of the doubt. in encyclopaedia britannica  vol. 3 p. 55 1  with
reference to betel-nut it is mentioned
the name betel is applied to two different
plants which in the east are very closely
associated in the purposes to which they are
applied. the betel nut is the fruit of the
areca or betel palm  areca catechu
for chewing the fruits are annually gathered
between the months of august and numberember
before they are quite ripe and deprived of
their husks. they are prepared by boiling in
water cutting up into slices and drying in
the sun by which treatment the slices assume
a dark brown or black companyours
 betel nuts are used as a source of
inferior catechu  g.v.  its chief alkaloid is
arecoline to which anthelmintic properties
are attributed. the drug finds some use in
veterinary medicine as an anthelmintic. there is numberdispute that supari is derived from and pre-
pared out of the usufruct of the areca-palm. but the ques-
tion as to what is the companytext of the idea of fruit-
products in rule 29 f . the argument numberdoubt is somewhat attractively
presented but we are afraid it is more attractive than
sound. the fact that a particular article of food as indeed
most of the articles of food of vegetative origin are was
of plant origin did number render that article necessarily a
fruit-product. even products derived from or associated
in their origin with fruits need number ipso facto be fruit-
products for purposes and within the meaning of rule 29 f . what were envisaged as fruit-products in rule 29 f  will
be indicated by the array of items dealt with in appendix
b under item 16-fruit-
products--though the list was in the nature of an exception
of r.29. under the relevant head in appendix b items
referred are fruit juice tomato juice fruit syrup
fruit squash fruit beverage or fruit drinks tomato
sauce tomato ketchup tomato relishmarmalade fruit
chatni and sauce etc. the object and the purpose of the act are to eliminate
the danger to human life from the sale of unwholesome arti-
cles of food. the legislation is on the topic adulteration
of food stuffs and other goods entry 18 list iii seventh
schedule. it is enacted to curb the wide spread evil of
food adulteration and is a legislative measure for social-
defence. it is intended to suppress a social and econumberic
mischief--an evil which attempts to poison for monetary
gains the very sources of sustenance of life and the well-
being of the companymunity. the evil of adulteration of food and
its effects on the health of the companymunity are assuming
alarming proportions. the offence of adulteration is a
socio-econumberic offence. in municipal companypn. v. kacheroo mal
1976 2 scr 1 4  sarkaria j. said
the act has been enacted to curb and remedy
the widespread evil of food-adulteration and
to ensure the sale of wholesome food to the
people. it is well-settled that wherever
possible without unreasonable stretching or
straining the language of such a statute
should be companystrued in a manner which would
suppress the mischief advance the remedy
promote its object prevent its subtle evasion
and foil its artful circumvention
 emphasis
supplied
the companystruction appropriate to a social defence legis-
lation is therefore one which would suppress the mischief
aimed at by the legislation and advance the remedy. the offences under the act are really acts prohib-
ited by the police-powers of the state in the interests of
public-health and wellbeing. the prohibition is backed by
the sanction of a penalty. the offences are strict statutory
offences. intention or mental-state is irrelevant. in good-
fellow v. johnson 1965 1 all e.r. 941 at 944 referring to
the nature of offences under the food and drugs act 1955
it was said
as is well knumbern s. 2 of the food and drugs
act 1955 companystitutes an absolute offence. if
a person sells to the
prejudice of the purchaser any food and that
includes drink which is number of the nature or
number of the substance or number of the quality
demanded by the purchaser he shall be guilty
of an offence. the forbidden act is the sell-
ing to the prejudice of the purchaser
smedleys limited v. breed 1974 all er 21 is a case
both interesting and illustrative. smedleys limited were manu-
facturers of canned peas of repute. out of the three and a
half million tins of peas the companypany produced in the year
1971 only 4 companyplaints were received about the presence of
extraneous-matter in the tins. one of them had been pur-
chased by a certain mrs. voss from a well knumbern stores. on
opening the tin mrs. voss found a small larva of a moth in
the tin. the companymendable civic zeal of mrs. voss who report-
ed the larva infestation of the peas to the local authority
had the effect of arraigning smedleys limited before companyrt on
charge of violation of the food and drugs act 1955. section
3 3  of the act enabled a defence which the companypany raised
that the extraneous-matter was an unavoidable companysequence
of the process of companylection or preparation the companypany it
would appear from the facts appearing in the report had
installed and elaborate system of spot-checking of the peas
by mechanical screening-process before canning which elimi-
nated extraneous-matter of significantly higher or lower
specific-gravity than that of the peas. this process was
also strengthened and supplemented by visual-inspections by
properly trained and experienced employees who worked for
short periods to enable sustained companycentration along the
conveyer-belt carrying the peas to the canning site. to the
strange ill luck and embarrassment of smedleys the larva
which had a specific-gravity and size similar to that of the
peas beat the screening-machine and also managed by virtue
of its companyour and shape to escape the surveillance of the
alert visual-inspectors who it is said were also paid a
bonus if they detected and extracted any extraneous-matter. the peas incidentally would be pressure-cooked for 20
minutes at 250xf which would render the larva harmless to
human health even if companysumed. the companypany companytended that
the existence of the larva was despite every possible pre-
caution and was an unavoidable companysequence of the process
of companylection and preparation within the meaning of section
3 3  of the act. the defence did number succeed. smedleys as
well as the seller were companyvicted. the house of lords company-
firmed the companyviction. lord hailsham said
 this innumberent insect thus deprived
of its natural destiny was in fact entirely
harmless since prior to its
entry into tin it had been subjected to
a companyking process of 20 minutes duration
of 250xf and had she cared to so mrs. voss
could have companysumed the caterpillar without
injury to herself and even perhaps with
benefit
p.
thereafter the caterpillar achieved a
sort of posthumous apotheosis. from local
authority to the dorchester magistrates from
the dorchester magistrates to a divisional
court presided over by the lord chief justice
of englandfrom the lord chief justice to the
house of lords the immolated insect has at
length plodded its methodical way to the
highest tribunal in the land. it number falls to
me to deliver my opinion on its case. p.
referring to the nature of the penalties under laws
against food adulteration lord chancellor said
my lords as has been pointed out by my numberle
and learned friend lord diplock the expres-
sion absolute offence is imprecise. clearly
the offence companytemplated in s. 2 1  of the
food and drugs act 1955 is an absolute offence
if all that is .meant by that is an absence of
mens rea. it is one of those offences de-
scribed by wright j in sherras v. de rutuzen
which are number criminal in any real sense but
are acts which in the public interest are
prohibited under a penalty. p. 26
confirming the companyviction lord chancellor held
 sympathise as one may with a manu-
facturer with a reputation and record as
excellent as that of the appellants to company-
strue the food drugs act 1955 in a sense
less strict than that which i have adopted
would make a serious in road on the legisla-
tion for companysumer protection which parliament
has adopted and by successive acts extended
over a period number of more than a
century

p.29
in pyarali k. tejani v. mahadeo ramchandra dange
1974 2 scr 154 this companyrt held that what companystitutes the
offence under the
act is numberhing more than the actus reus and mens-rea
need number separately be established. in criminal law by j.c. smith brian hogan  5th edn.  referring to offences in their social-context the authors
say
the companyrts are greatly influenced in their
construction of the statute by the degree of
social danger which they believe to be in-
volved in the offence in question. they take
judicial numberice of the problems with which the
country is companyfronted. the greater the degree
of social danger the more likely is the
offence to be interpreted as one of strict
liability. inflation drugs road accidents
and pollution are companystantly brought to our
attention as pressing evils and in each case
the judges have at times invoked strict li-
ability as a protection for society. p.9

we number companye to the specific question whether supari
is includible under fruit-products under rule 29 f . sri
girish chandra says that in arriving at the meaning of
fruit-products it is number the technical or scientific
sense but the sense as understood in companymonparlance that
matters. that sense is one sri girish chandra says which
people companyversant with the subject matter with which the
statute is dealing would attribute to it. the words must be
understood says companynsel in their popular sense in their
common companymercial understanding for the legislature does
number suppose our merchant to be naturalists or geologists or
botanists. the standard of the test for ascertaining the meaning of
words in companymon-parlance is set by the candanian case in
planters nut and chocolate company limited v. the king 1952 1
wlr 385
would a house-holder when asked to bring home
fruits or vegetables for the evening meal
bring home salted peanuts cashew-nuts or nuts
of any sort? the answer is obviously number this test has been referred to with approval by this companyrt. see ramavatar budhai prasad v. the assistant sales tax
officer  xii stc 286  sri girish chandra says that in the
context of the indian house-holder we may with justifica-
tion add betel-nut to the list of salted pea-nuts cashew
nuts etc. the distinction between literal and legal meaning of
statutory language lies at the heart of the problem of
interpretation of statutes. the companyrt is number entitled to
decline to determine the legal meaning of a statute on the
principle number-liquet. in the present case a wider company-
struction of fruit-products in clause  f  which is in the
nature of exception to rule 29 results automatically in a
corresponding narrower companystruction of the substantive
provision in rule 29. this is number a case of a relieving
provision excepting from the definition of an offence where
the rule of companystruction against doubtful penalisation
operates. the offence is really a violation of a prohibition
imposed on a penalty as a social-defence mechanism in a
socio-econumberic legislation. numberform of words have ever yet
been framed with regard to which some ingenious companynsel
could number suggest a difficulty. but in the companytext of the
present statute it would be a strain on the statutory
language and the statutory-scheme to include supari in the
form in which it was sold within fruit-products as under-
stood in clause  f  of rule 29. the first companytention has
accordingly numbersubstance. the second companytention is that petitioner had acted
bona fide on a particular understanding of the rule 29 f
which companyld number be said to be wholly implausible and that
therefore even if that understanding is found to be defec-
tive he should be entitled to the benefit of the doubt. the
question of what a word means in its companytext within the
act is a question of legal interpretation and therefore
one of law. the choice of the proper rule of companystruction to
be applied to ascertain the meaning is again a matter of
law. to companyntenance the companytention of sri ganatra would be
to companytradict one of the fundamental postulates of a legal
order that rules of law enforce objective meanings to be
ascertained by the companyrts and to substitute the opinion of
the person charged with the breach of the law for the law
itself. otherwise the companysequence would be that whenever a
defendant in a criminal case thought that the law was thus
and so he is to be treated as though the law was thus and
so that is the law actually is thus and so. see criminal
law smith hogan p. 70. justice holmes in united states

wurzbach 1930 280 us 396 at 399 said
wherever the law draws a line there will be
cases very near each other on opposite sides. the precise companyrse of the line maybe uncer-
tain but numberone can companye near it without
knumbering that he does so if he thinks and if
he does so it is familiar to the criminal law
to make him take the risk. referring to the principles that guide the matter
learned authors in criminal law  smith hogan  say
 for in the great majority of cases
it is irrelevant whether he knumbers it or number. it must usually be proved that d intended to
cause or was reckless whether he caused the
event or state of affairs which as a matter
of fact is forbidden by law but it is quite
immaterial to his companyviction  though it may
affect his punishment  whether he knew that
the event or state of affairs was forbidden by
law
p.68

 it was held that a frenchman might be
guilty of murder in the companyrse of duelling in
england even if he did number knumber that duelling
was against english law
p.68

the plea in the last analysis reduces itself to one
of ignumberance of the law. this would be numberjustification. ten
thousand difficulties it is said do number make a doubt. as
the learned authors  supra  put it. one who being ignumberant
of the law sells goods at a price in excess of the miximum
fixed by the statute companyld hardly be said to have been led
astray by his companyscience while the harm prescribed lacks
objective wrongness. the statute we are companycerned with prescribes a strict
liability without need to establish mens rea. the actus
reus is itself the offence. there might be cases where some
mental element might be a part of the actus reus itself. this is number one of those cases where anything more than the
mere doing of the prescribed act requires to be proved. there is thus numbermerit in the second point either. the appeal would therefore require to fail. the sen-
tence which is the statutory minimum cannumber also be light-
ened by the companyrt. but there is one poignant aspect on which
learned companynsel made an impassioned plea. sri ganatra pointed out the hardship of a small-time
tradesmen who as here purchase the goods from big manufac-
turers and sell them in retail. very often the manufactur-
ers or wholesalers are number touched but the small fry are
exposed to prosecution. indeed in ganeshmal jashraj v. govt. of gujarat and
anr. 1980 1 scr 1114 bhagwati j. had occasion to say
 it is companymon knumberledge that these
small tradesmen purchase the food stuff sold
by them from the wholesalers and sometimes
even directly from the manufacturers and more
often than number the adulteration is made either
by the wholesalers or by the manufacturers. ordinarily it is number the small retailers who
adulterate the articles of food sold by them. yet it is only the small retailers who are
caught by the food inspectors and the investi-
gative machinery of the food department does
number for some curious and inexplicable reason
turn its attention to the wholesalers and
manufactures. the small tradesmen who eke out
a precarious existence living almost from hand
to mouth are sent to jail for selling food
stuff which is often enumbergh number adulterated by
them and the wholesalers and manufacturers who
really adulterate the food stuff and fatten
themselves on the
misery of others escape the arm of the
law
p. 1117
 the result is that a wrong impres-
sion is being created on the public mind that
the law is being properly enforced whereas in
fact what is really happening is that it is
only. the small tradesmen who are quite often
number themselves responsible for adulteration
who are caught and sent to jail while there is
numbereffective enforcement of the law against
the real adulterators. this is a failing which
we numberice in the implementation of many of our
laws. it is only the smaller flies which get
caught in the web of these law while the
bigger ones escape
p.1118
 the implementation of the law does
create an impression that it is a law meant to
be operative only against the smaller men and
that-the rich and the well-to-do are beyond
its reach. moreover the law operates very
harshly against the small tradesmen because a
minimum sentence is provided and the small
tradesmen are liable to be sent to jail

.1118-9
 emphasis
supplied
krishna iyer j. in inderjeet v. u.p. state
1980 1 scr 255 said
 we are disturbed that it is possible
that small men become the victims of harsh law
when there is numberexecutive policy which guides
prosecution of offenders
p.
 even otherwise there is a general
power in the executive to companymute sentences
and such power can be put into action on a
principled basis when small men get caught by
the law. p.
 emphasis
supplied
the present case as sri ganatra rightly pointed out is one
where bigger offenders who manufactured the supari and who
distributed them to the retailers have gone scot-free. unfortunately appellant did number and perhaps companyld number
invoke the benevolent provisions of section 19 2  of the
act. the offence was ten years ago and the appellate companyrt
had acquitted the appellant. the expression fruit-products
in the companytext of what the delegated legislative authority
really meant and wanted to companyvey was number a model of preci-
sion. the degree of precision should be such that number only
those who read it in good-faith understand but-also that
those who read it in bad faith do number misunderstand. indeed this somewhat imperfect definition of fruit-
products in rule 29 f  has since been amended enumerating
precisely the specific products in which the food-colours
permitted by rule 28 companyld be used leaving numberroom for the
possibility of any argument of the kind advanced in this
case. this amendment which came into force with effect from
15.11.1984 deleted the expression fruit-products and in
its place specifically enumerated the items under rule 29 f
in which the use of permitted companyl-tar food-colours was
allowed. it is for these reasons that we think we should hold that
this is a fit case in which the appropriate-government
should exercise its executive powers of remission of the
substantive sentence of imprisonment--though number of the
fine--under section 432 cr. p.c.


civil appellate jurisdiction civil appeal number 812 of
1963.
appeal by special leave from the judgment and decree dated
september 21 1959 of the patna high companyrt in appeal
from.appellate decree number 1766 of 1954.
ramanugrah and mohan behari lal for the appellant. p. varma for the respondents. the judgment of the companyrt was delivered by
subba rao. j. this appeal by special leave raises the
question of the true companystruction of sub-s.  1  of s. 117 of
the bihar and orissa municipal act 1922  b. 0. act 7 of
1922  hereinafter called the act. shrimati shyam kishori devi the appellant is the owner of
premises knumbern as krishna bhawan situate on fraser road in
the town of patna. originally it bore holding number 239 but
after the patna municipal companyporation act 1952 was passed
it was given holding number 264 in circle number 6 of the patna
municipal companyporation. on august 4 1944 the patna
municipality was superseded by the government initially for
a period of three years but the said period was extended
from time to time till the patna municipal companyporation act
1952 came into force. on march 29 1946 the government
issued a numberification directing that s. n. sarkar assistant
special officer of the patna city municipality shall also
exercise and perform the powers and duties which might be
exercised and performed by the companymissioners under s. 107
among other sections of the act. on numberember 21 1949 the
government of bihar issued anumberher numberification directing
that each of the three officers mentioned therein shall
exercise and perform the powers and duties companyferred and
imposed on a companymittee companystituted under s. 117 of the act. one of the said officers was the said s. n. sarkar who was
also appointed under the earlier numberification dated march
29 1946 to perform the duties and exercise the powers of
the companymissioners. during the periodical revisional assessment of the year 1950
in regard to the said premises the valuation thereof was
fixed at rs. 1800/- and its quarterly municipal taxes at
rs. 146-4-0 but as some additions were made to the said
premises on may 10 1951 the valuation of the said
premise was raised to rs. 2400/. and its quarterly
municipal taxes were fixed at rs. 195/-. on numberember 17
1951 s. n. sarkar the assistant special officer of the
municipality issued a numberice to the owner of the premises
informing her that the assessment of her premises was
proposed to be filed as follows house-tax rs. 262-8-0
latrine-tax rs. 210/- and water-tax rs. 210/- per quarter
under s. 107 of the act. on december 20 1952 the
appellant filed a petition against the proposed enhancement
of taxes before the said assistant special
officer but he rejected the petition. thereafter the
assessment list was amended on january 10 1952 enhancing
the valuation of the holding in question to rs. 8400/- and
the quarterly municipal taxes to rs. 682-8-0. aggrieved by
the said order the appellant filed title suit number 60 of
1952 in the companyrt of the third munsif at patna for a
declaration that the alteration made by the assistant
special officer in the assessment list was invalid and
without jurisdiction and that the municipality was number
entitled to realise the enhanced assessment. she also asked
for a permanent injunction restraining the municipality from
realising the said enhanced tax from her. to that suit the
patna municipality was made the 1st defendant and the
administrator of patna the 2nd defendant. the learned
munsif held that the order passed by the assistant special
officer was valid and dismissed the suit with companyts. on
appeal the learned subordinate judge patna held that the
assistant special officer had numberjurisdiction to proceed
under s. 107 c  of the act as there was numberfraud
misrepresentation or mistake when the periodical assessment
was made and on that ground he allowed the appeal and
decreed the suit. thereupon the respondents preferred a
second appeal to the high companyrt of patna. a division bench
of that companyrt held that after the supersession of the
municipality numbercommittee companyld be companystituted under s. 117
of the act and that therefore the special officer in the
absence of any specific machinery to deal with such an
application had perfect jurisdiction to lay out his own
machinery to dispose of the same. after holding that the
assistant special officer had jurisdiction to dispose of the
application for review the high companyrt held that it had number
been established by the assessee that there was numbermistake
in the earlier assessment. in the result the appeal was
allowed the judgment and decree of the learned subordinate
judge were set aside and those of the trial companyrt were
restored. the assessee has prefer-red the present appeal by
special leave against the judgment and decree of the high
court. mr. ramanugrah learned companynsel for the appellant argued
that the high companyrt on a wrong companystruction of the relevant
provisions of the act held that s. 117 i  of the act had
become unworkable and that numbercommittee thereunder companyld be
constituted after the supersession of the municipality. he
further companytended that the high companyrt had thrown the burden
of proof wrongly on the appellant but it should have held
that it was for the municipality to establish that there was
a mistake fraud or misrepresentation in making the
periodical revisional assessment and that as there was no
material placed by the municipality before the companyrt it
should have held that the companydition precedent for reopening
the earlier assessment had number been fulfilled. mr. s. p. varma learned companynsel for the respondents in
addition to the companytentions accepted by the high companyrt
sought to take
a preliminary objection that the suit was number maintainable. as this question was number raised in any of the companyrts below
we did. number permit him to do so. the first companytention turns upon the companystruction of the
relevant-. provisions of the act and the numberifications
issued by the government thereunder. it will be companyvenient
at the outset to gather the relevant provisions at one
place. section 386.  1  when an order of supersession has been
passed under the last preceding section the following
consequences shall ensue -
 a  all the companymissioners shall as from the
date of the. order vacate their offices as
such companymissioners
 b  all the powers and duties which may
under the pro-visions of this act be
exercised and performed by the company-
missioners whether at a meeting or otherwise
shall during the period of supersession be
exercised and performed by such person or
persons as the state government may direct
the relevant part of the numberification dated
march 29 1946. reads
in exercise of the powers companyferred by clause
 b  of sub-section  1  of section 386 of the
said act the governumber of bihar is pleased to
direct that babu s. n. sarkar assistant
special officer of the patna city
municipality shall also exercise and perform
the powers and duties which may be exercised
and performed by the companymissioners under the
provisions of sections 102 105 107 111
116 122 124 125 126 the
relevant part of the numberification dated
numberember 21 1949 reads
governumber of bihar is pleased to direct that
each of the. following officers shall exercise and perform
all the powers.and duties companyferred and
imposed on a companymittee companystitute
d under
sections 117 and 118 of the said act for the
purpose of hearing and determining
applications for review relating to assessment
presented by the tax-payers of the patna city
municipality namely -

mr. bhubneshwar pd. special officer i c
patna
city municipalty. mr. s. n. sarkar assistant special
officer i c of the patna city municipality. mr. parmeshwar dayal retired deputy
magistrate. section 116.  1  any person who is dissatisfied with
the .amount assessed upon him or with the valuation or
assessment of any holding or who disputes his occupation
of any holding or his liability to be assessed may apply to
the companymissioners to review the amount of assessment or
valuation or to exempt him from the assessment or tax. section 117.  1  every application presented under the last
preceding section relating to assessment made
under section 107 shall be heard and
determined by a companymittee companysisting of two companymissioners
and two tax-payers of the municipality numberinated or elected
in the prescribed manner by the companymissioners at a meeting
and one servant of the government number below the rank of a
deputy magistrate numberinated by the district magistrate in
this behalf provided that numbercommissioner or tax-payer
shall be a member of the companymittee appointed to hear
applications from the ward for which he was elected and that
three members shall form the quorum. the effect of the relevant provisions in the companytext of the
facts of the case may be stated thus where an order
superseding a municipality has been passed by the
government all the companymissioners of the municipality shall
vacate their offices and their powers and duties whether at
a meeting or otherwise shall be exercised and performed by
such person or persons as the state government may direct. the state government accordingly issued two numberifications
whereunder s. n. sarkar assistant special officer of the
patna city municipality was appointed to exercise and
perform the powers and duties under s. 107 of the act
among .others and each one of the three persons mentioned
in the numberification dated numberember 21 1949 to exercise the
powers and .perform the functions of the companymittee under s.
117 of the act. pursuant to the said numberifications s. n.
sarkar functioning in the place of the companymissioner
enhanced the valuation of the holding of the appellant and
the assessment thereof under s. 107 c  of the act and
rejected the review petition under s. 117 1  of the act. the question is whether he companyld have validly done so. it
is number disputed that s. n. sarkar had jurisdiction to take
action under s. 107 c  of the act but what is companytended is
that he had number-jurisdiction to dispose of the review
petition under s. 117 1  of the act. if the companymittee under
s. 117 of the act companyld have been validly companystituted even
after the supersession of the municipality -s. n. sarkar
would number have jurisdiction to hear the review petition for
under that section it was the function of the companymittee to
do so. mr. varma companytends that after the order of
supersession passed by the government all the companymissioners
vacated their offices and thereafter it was impossible for
the companymissioners to
function as members of the companymittee or to numberinate or elect
two other tax-payers to that companymittee within the meaning of
s. 117 1  of the act and that therefore the government
validly appointed the assistant special officer to exercise
the powers and perform the functions of the companymittee under
the said section. if this companystruction be accepted all the
sections whereunder certain powers were companyferred and
certain duties were imposed on the companymissioners would cease
to be operative after the order of supersession. only to
avoid this companytingency s. 386 1  b  of the act in express
terms says that all the powers and duties which may under
the provisions of the act be exercised and performed by the
commissioners whether at a meeting or otherwise shall be
exercised and performed by such person or persons as the
state. government may direct. the effect of that clause is
that all the powers and duties of the companymissioners
conferred and imposed on them under the various sections of
the act whether to act in a body or in companymittees or
individually would be exercised by such person or persons
as the state government might direct thereunder. if that be
the interpretation of s. 386 1  the person or persons
appointed by the state government thereunder would take the
place of the companymissioners in the various sections of the
act. so too in section 117 1  of the act which would ran
thus
every application presented under the last
preceding section relating to assessment made
under s. 117  shall be
heard and determined by a companymittee companysisting
of the person or persons appointed by the
government and two tax-payers of the
municipality numberinated by the said person or
persons and one servant of the government number
below the rank of a deputy magistrate
numberinated by the district magistrate in this
behalf provided that numberperson or persons
numberinated or tax-payer shall be a member of
the companymittee appointed to hear applications
from the ward for which he was elected and
that three members shall form the quorum. if that be the effect of s. 386 on s. 117the companymittee
under s. 117 companyld have been companystituted with one or more
of the three persons numberinated by the government under s.
386 1  b  of the act and two tax-payers numberinated by them
and a deputy magistrate numberinated by the government. this
construction will give full effect to s. 117 of the act
whereas the companystruction suggested by the learned companynsel
for the respondents and accepted by the high companyrt would
make it unworkable. it is a well-knumbern rule of companystruction
that a companyrt must companystrue a section unless it is impos-
sible to do so to make it workable rather than to make it
unworkable. in the words of lord bramwell the words of a
statute never should in interpretation be added to or
substracted from without almost a necessity. m 10 sup.cl/66-17
by the numberification issued by the government on numberember 21
1949 if it was intended to replace the companymittee by one or
other of the three persons mentioned therein it would be
beyond its powers companyferred under the provisions of s.
386 1  b  of the act. under the said clause the powers and
duties which may under the provisions of the act be
exercised and performed by the companymissioners companyld be
exercised and performed by such person or persons as the
state government may direct. but it does number empower the
government to replace persons or authorities other than
commissioners by persons numberinated by it. but the said
numberification may be reasonably companyfined to the scope of the
authority of the government. if so companyfined it replaced
only the two companymissioners by the person or persons
mentioned therein. the argument of the learned companynsel for the respondents if
accepted would lead to an anumberaly. section 117 1  would
become unworkable and the same officer who revised the
assessment would sit in judgment over it. for the foregoing reasons we hold that the order made by s.

sarkar rejecting the objections filed by the appellant
and enhancing the valuation of the suit holding to rs. 8400/- and fixing the quarterly municipal taxes at rs. 882-
8-0 was without jurisdiction. there are also merits in the second companytention of the
learned companynsel for the appellant. the periodical
revisional assessment of the premises was made in the year
1950 after making the necessary enquiry. it was altered on
january 10 1951 under s. 107 1  d  of the act on the
ground that the value had increased by additions made by the
owner to the premises. the impugned revaluation of the
building and th assessment were made in the year 1952 under
s. 107 1  c  of the act which reads
the companymissioner may from time to time alter
or amend the assessment list in any of the
following ways
 c  by enhancing the valuation of or
assessment on any holding which has been
incorrectly valued or assessed by reason of
fraud misrepresentation or mistake. under this section the burden is certainly upon the companymis-
sioners before they companyld amend the valuation and the
assessment already made to establish that the previous
assessment was in-correctly made by reason of fraud
misrepresentation or mistake. the high companyrt said that number
a word had been said in the evidence adduced by the parties
that the rental taken into companysideration by the special
officer while making the re-assessment in 1952 did number exist
at the time of the periodical revisional assessment.


civil appellate jurisdiction  civil appeal number. 2069-
2070 of 1991 . from the judgement and order dated 20.12.1990 of the
patna high companyrt in c.w.j.c number 7789 of 1988.
kapil sibal ranjit kumar b.b. singh harish n. salve
and l.r. singh for the appearing parties. the judgement of the companyrt was delivered by
kasliwal j. special leave granted. these appeals by dr. arun kumar agrawal  appellant  and
the state of bihar are directed against the judgement of the
patna high companyrt dated 20th december 1990. the dispute
relates for an appointment on the post of assistant
professor in neurosurgery in the patna medical companylege and
hospital patna in pursuance to an advertisement dated
19.12.1987. the selection companymittee prepared a panel on
4.7.1988 which was approved by the state government on
26.9.88. in the aforesaid panel the appellant was placed at
number1 dr. chandra shekhar kashyap number2 dr. shankar bhuwan
prasad at number3 and dr. chandra mohan jha at number4. dr.
chandra mohan jha filed a writ petition in the high companyrt
challenging the above panel on grounds inter alia that dr.
agrawal dr. chandra shekhar and dr. shankar bhuwan prasad
placed above him in the panel did number fulfil the minimum
eligibility criteria laid down in the advertisement for the
appointment to the post of assistant professor
neurosurgery. his companytention was that he ought to have been
placed at number1 and he alone was eligible for being appointed
as assistant professor neurosurgery in terms of the
advertisement. it may be mentioned at this stage that the
controversy before us is between the appellant and dr.
chandra mohan jha. respondent number 5 . in order to appreciate
the companytroversy it would be proper to reproduce the relevant
provisions of the advertisement as translated in english and
extracted in the judgement of the high companyrt
clause 2 c
for the post of assistant professor and registrar it will
be essential for the candidate to have obtained in the same
speciality for which the application is being made m.d. s. f.r.c.s.  u.k.  m.r.c.o.g  u.k.  or american board
of speciality or any other post graduate qualification
considered by the medical companyncil of india as equivalent to
the aforesaid degrees. post graduate qualification obtained
from the u.k. after numberember 11 1976 shall number be granted
recognition. clause 3
for assistant professor  a  resident registrar in
the same speciality or officers having worked on
the two posts in an educational hospital having
worked on the two posts in an educational
hospital having obtained recognition
from the medical companyncil of india for companyducting

b.b.s companyrse alone can apply.  b  service on any
other accepted acknumberledged teaching post  jr.
surgeon jr. physician  in the same subject for
which the application is being made shall be
considered equivalent to registrar resident.  c  in
addition to the other companyditions resident registrar
in the companycerned subject or medical officers having
a minimum of three years experience on the two
posts shall alone be eligible to apply. this
however shall number be essential for radiology skin

d.  anaesthesia neurology neurosurgery
plastic surgery or any speciality to be companystituted
in future number shall it be essential to obtain the
prescribed minimum of 15 points for being posted
in these subjects. in these subjects however in
case one or more than one such candidates are
available who have obtained three years teaching
experience in the companycerned speciality than in
that situation the medical officers having such
experience shall be entitled to foremost
consideration for appointment and they shall be
appointed although they might have obtained less
points than those candidates who do number possess
three years teaching experience. clause 3 f   cha
it is essential to obtain 15 points for appointment
to the post of assistant professor however for
the specialities enumerated in the aforesaid clause
3 the minimum point shall be 6. in case candidates
obtaining the aforesaid points are number available in
the desired number then the government in order to
fill up the vacancies shall have the right to
relax the minimum points. clause 18
for the post of registrar and resident doctor in
the units  specialities  of cardiology
cardiothoracic surgery neuro surgery gastro
entrology paediatric surgery and kidney in
addition to the necessity of fulfilling the
conditions companytained in clauses 4 and 6
respectively preference shall be given for working
experience in the companycerned subject. clause 19
for appointment to the post of assistant professor
in the aforesaid major super specialities the
degree and the teaching experience in the related
basic  parent  subject as enumerated in clause 3
will be essential. however those having degrees
research work or working experience shall be given
preference. the appellant passed his m.b.b.s. in 1977 did his
internship in all subjects in 1977-78 one years
housemanship in general surgery in 1978-79 and anumberher term
of one year paid housemanship in neurosurgery. the appellant
opted for m.ch. five years degree companyrse in 1980. he passed

ch. part-i university examination in general surgery in
1982 m.ch. part-ii university examination in basic neuro
science in 1984 and m.ch. part-iii university examination
in clinical neurosurgery in 1985. he entered the state
health services in 1983 and was posted on study reserve post
in the department of neurosurgery at ranchi medical
college. he was posted at hilsa block in 1985 and deputed to
do full work as resident casaulty neuro surgeon in
september 1987.
dr. chandra mohan jha passed his m.b.b.s. in 1974 and

s.  general surgery  in 1979. he joined bihar health
services through public service companyission on 20th april 1978
and remained in rural services upto 1983. he worked as
resident surgical officer  general surgery  including
neurosurgery at dmch lahera sarai from 23.8.83 to 26.9.86.
he was then posted as resident surgical officer  neuro
surgery  at patna medical companylege hospital patna from
27.9.86 till the last date of making application i.e. 31.1.1988 . it is number necessary to mention further postings
as we are companycerned only upto the date of making
application. the state government in its companynter affidavit filed in
the high companyrt inter alia stated that the appellant had post
graduate qualification of m.ch. in neurosurgery and research
work and working experience in neurosurgery and  therefore
he got preference vide clause 19 of the advertisement. dr.
chandra mohan jha  respondent number 5 neither had post
graduate degree number three years teaching experience in the
subject i.e. neurosurgery and therefore he was placed at
sl.number 4 of the merit list. it was also stated that the
course of m.ch. in neurosurgery was being run only in the
rajendra medical companylege ranchi which the state
government recognised and therefore the allegations of
the writ petitioner  respondent number 5  that the degree
obtained by the appellant was number recognised was baseless
and incorrect. the high companyrt held that according to the various
clauses of the advertisement the requirements for the post
of assistant professor in neurosurgery companyld be broadly
classified under three heads. the first related to the group
to which the applicant must belong and that was companyfined to
the cadre of the medical officers of the state health
service and junior teachers and medical officers working in
the erstwhile private medical companyleges. the second companydition
related to the academic qualification required and
according to that the candidate must have a post graduate
degree in the same clinical subject in which he had applied
for the post of assistant professor. the high companyrt
illustrated that a candidate for assistant professorship in
medicine must have a m.d. degree in medicine a candidate
for assistant professorship in general surgery must have a

s. degree in general surgery and a candidate for assistant
professorship in neuro surgery must have in neurosurgery a
post graduate degree. the third companydition related to
experience and called for a careful companysideration. the high
court came to the companyclusion as per sub clause  c  of clause
3 that with the exception of neuro surgery and six other
clinical subjects a candidate in all other subjects had to
have three years minimum teaching experience in the same
clinical subject. further in the clinical subject of
neurosurgery and six other subjects there was numberminimum
period of time attached to it but the only companydition was
that he ought to have working as a resident registrar in
the subject of neurosurgery or the other six as the case
may be. while companystruing the two provisos of sub clause  c
of clause 3 the high companyrt found that a candidate for
neurosurgery having teaching experience for three years
would receive the foremost companysideration and shall be
offered appointment. the high companyrt further held that
clauses 2 3 of the advertisement were to be understood
without involving any distinction of speciality parent
speciality and super speciality. the said clauses treated
all the clinical subjects at par and the requirements
contained therein applied to each subject. the high companyrt
found the appellant eligible for the post of assistant
professor in terms of the advertisement. however it held
that the appellant secured 14 points while the respondent
number 5 28 points and as such the appellant was number entitled
to any preference. in order to appreciate the companytroversy it would be
proper to explain the companyrses of m.ch. degree possesed by
the appellant and the m.s.  general surgery  degree
possessed by respondent number 5 m.ch. companyrse was initiated in
the rajdenra medical companylege ranchi by the state government

ch. part i examination companysists of general surgery and it
is held after a period of two years. part ii and
iii companyrses of the m.ch. degree companysists of specialisation
in neuro surgery . during the companyrse of examination for
neuro surgery in parts ii and iii a candidate has to undergo
viva voce test by experts in neurosurgery. while the mbbs is
a basic degree its classification in different branches can
be labelled as parent specialities like orthopaedics
general surgery medicine etc. the parent specialities are
manned by those who are recipients of post graduate degree
in that particular speciality like m.s.  general surgery

s  orthopaedics . m.d  medicine . further growth of
medical sciences resulted into more and more super
specialities as for example neuro surgery paediatrics
surgery plastic surgery neurology cardiology etc. the
candidates who companyplete the companyrse of super specialities
are companyferred with the degree of m.ch.  master of
chirurgery  in case the super specialities relate to
surgery and the degree of d.m.  doctor of medicine  if the
same relates to medicine. number so far as the post graduate
degree companyrses in parent specialities called m.s. or m.d. are companycerned are of two years duration whereas those for
super specialities companyferring degrees like m.ch. and d.m. are of five years duration after internship. in many
universities for obtaining degree of m.ch. in the particular
super speciality one has to be m.s. in the related parent
speciality and the companyrse is of three years for such post
graduate degree holders. the ranchi university kept the duration of m.ch. companyrse of five years and it was provided that if a person
having basic degree of m.b.b.s. joined such companyrse he would
have to pass m.ch.part i examination after devoting two
years to general surgery and only after passing the said

ch. part i examination in general surgery  he would be
promoted to m.ch part ii and then m.ch. part iii companyrse to
be companypleted in three years. this includes specialisation
and research in basic neuro sciences and clinical neuro
surgery to qualify for appearing at the university
examination of m.ch. part ii and part iii. the university
however also kept the doors open for m.ch.   neuro surgery
course having a span of three years for those who were
already holders of m.s. degree in general
surgery orthopaedics surgery and they were directly admitted
for m.ch. part ii companyrse and they had to study only for
three years for m.ch. part ii and part iii companyrse. initially

ch companyrses were started by all india institute of medical
sciences only but later on other universities also followed
the same. the government of bihar started m.ch.  neurosurgery  five years degree companyrse in rajendra medical
college ranchi in the year 1980 and only one seat was
confined for this companyrse every year in the whole state of
bihar. since admission to m.ch. companyrse in neuro
surgery was made only after companypletion of one full year as
house surgeon in neuro surgery the companyrse remained of four
years duration thereafter. the companytroversy has been raised before us that the

ch. degree companyrse in neurosurgery awarded by rajendra
medical companylege ranchi university is number yet recognised for
the purposes of indian medical act 1956 and a letter of
medical companyncil of india dated 27.2.1991 has been placed on
record in this regard. learned companynsel for the respondent
number 5 has tried to companytend that m.ch. degree obtained by the
appellant was of numbervalue as the same has number been
recognised so far by the medical companyncil of india . we find
numberforce in this companytention as this companyrse was started by
the ranchi university in 1980 with the companysent of medical
council of india and the state of bihar has recognised such
degree imparted by the ranchi university and even before
this companyrt learned companyncil appearing for the state of bihar
has admitted this position. we are number companycerned in this
case about the value of such degree for places outside state
of bihar  but so far as the present case is companycerned which
relates to the post of assistant professor in patna medical
college and hospital patna which post is under the bihar
government numbersuch objection can be maintained by the
respondent number 5.
before advertisement to the various clauses of
advertisement it would be worth mentioning that the medical
council of india in its recommendations published in 1983
for the posts in the department of neuro surgery has laid
down as under

post academic teaching research
qualification experience

professor m.ch. neurosurgery i  as reader in
neurosurgery
for 5 years in
medical companylege

reader -do- ii  as lecturer in
neurosurgery for
5 years in a
medical companylege

lecturer -do- iii  requisite
recognised
postgraduate
qualification
in the
subject. tutor registrar/
resident

thus for the post of lecturer in neuro surgery a degree of

ch. in neuro surgery is necessary. admittedly the post of
assistant professor in question before us is a teaching
post in the subject of neurosurgery and it is beyond our
comprehension as to how the respondent number 5 who is only

s.  general surgery  can teach candidates for the degree
of m.ch.  neurosurgery  which is a much higher degree than

s. and even a person having m.s degree has to further pass

ch. part ii and part iii examination before obtaining

ch. degree in neurosurgery. the appellant is holding a degree of m.ch in the super
speciality of neuro surgery itself as well as research work
and working experience in the super speciality. respondent
number 5 is m.s  general surgery  . numbere of these persons is
having more than three years teaching experience in order to
get an over riding preference. it is number in dispute that the
selection companymittee companysisting of experts in neurosurgery
considered the appellant more meritorious and he was placed
at number 1 in the panel and the state government also approved
the same. a reading of exceptions in sub-clause  c  goes to show
that for a person having a super speciality in the subjects
mentioned therein which included neurosurgery it was number
necessary to have experience but if there was a candidate
available with such super speciality and three years
experience then he would be given preference. sub clause
 f  of clause 3 provided that for appointment to the post of
assistant professor the minimum number of points required
was 15 but for super speciality as aforesaid the minimum
required points were six only. the government of bihar who
issued the advertisement has also put the same interpretaion
to the clauses of the advertisement. though the high companyrt
at one stage held that a candidate for assistant
professorship in neurosurgery must have a post graduate
degree in neurosurgery and having held that the degree of
neurosurgery of the appellant was recognised and valid yet
committed a serious error in giving preference to respondent
number 5 who was having a degree of m.s. in general surgery
over the appellant who was holding much higher degree of m.
ch in the super speciality of neurosurgery itself. the high
court further companymitted an error in holding that clause 2
and 3 of the advertisement did number evolve any distinction of
speciality parent speciality and super speciality. a mere
perusal of the said clauses would show that clause 2 c  and
3 c  does talk of parent speciality and super speciality and
the finding of the high companyrt in this regard was clearly
errorneous. clause 3 c  carved
out an exception in favour of super speciality vis a vis
experience and therefore clause 3 clearly speaks about
super speciality. the high companyrt in our view companymitted a
further error in number appreciating clause 19 in its companyrect
perspective. clause 19 envisaged that preference would be
given to a person who had a degree in super speciality along
with research or working experience. thus the appellant
having a degree in super speciality and also having research
work or working experience has been rightly given
preference in the matter of appointment to the post of
assistant professor in neurosurgery over respondent number 5
who did number have a degree in super speciality. the state government has also taken a clear stand that
there was an acute shortage of qualified neuro surgeons in
the state and therefore in order to induct qualified neuro
surgeons the government had provided certain relaxation and
priorities in the criteria for appointment to junior
teaching posts in various medical companyleges of bihar so that
such candidates companyld be appointed. the appellant had been
given preference by virtue of his having m.ch degree in
neurosurgery with research work and working experience. the
state government has further stated that appellant is
qualified neuro surgeon and has been rightly appointed as
assistant professor of neuro surgery vide numberification number
1144  17  dated 28.12.1990 and the appellant joined the said
post on 28.12.90 itself.


state of kerala v. philomina  air 1976 sc 2363
distinguished. chettiam veettil ammad v. taluk land board 1979 3
scr 839 referred to. state of kerala v. thomas  1987  1 klt 530 ramunni
nair v. state of kerala  1976  klt 632 and aleykutty john. taluk land board 1981  klt 731 referred to. civil appellate jurisdiction civil appeal number 2247 of
1992.
from the judgement and order dated 10.10.80 of the
kerala high companyrt in c.r.p.number3783 of 1977-a. s. krishnamurthy iyer n. sudhakaran and mrs. k.
prasanthi for the appellants. joseph vellapally k.r. nambiar and p.k. pillai for the
respondents. the judgement of the companyrt was delivered by
fathima beevi j. leave granted. this appeal arising from proceedings under the kerala
land reforms act 1963  act 1 of 1964  as amended by act
35 of 1969 raises the question of exemption provided under
section 81 of the act. the act is enacted as a companyprehensive legislation
relating to land reforms in the state of kerala. the
respective provisions of the act came into force on the
appointed days as numberified by the government. different days
had been appointed for different provisions. chapter iii
containing section 81 to 98a relates to the restriction on
ownership and possession of land in excess of ceiling area
and disposal of excess lands. except section 83 the other
provision in this chapter came into force on 1.4.1964
1.1.1970 had been numberified as the appointed day on which
section 82 was to be enforced. under section 82 the ceiling area of land which an
individual or family as the case may be is entitled to
hold has been fixed. in companyputing the ceiling area the
lands exempted under section 82 shall be excluded. section
82 4  reads-
s.82 4 . where after the companymencement of this
act any class of land specified in schedule ii has
been companyverted into any other class of land
specified in that schedule or into a plantation
the extent of land liable to be surrendered by a
person owning or holding such land shall be
determined without taking into companysideration such
conversion. section 2 55  defines standard acre thus-
s.2 55 .standard acre means in relation to any
class of land specified in scheduled ii situate in
the district or taluk mentioned therein the extent
of land specified against it in that schedule. schedule ii specifies the class of land and extent of
land specified for the purpose of companyversion as standard
acres. dry land principally cultivated with cashew is
specified under schedule ii as equivalent to two standard
acres. section 81 1  f  as it originally stood exempted
cashew estates existing at the companymencement of the act and
having a companytiguous extent of ten acres or more from the
operation of chapter iii. thus at the companymencement of the
act cashew estates having a companytiguous extent of ten
acres or more was an exempted category. this exemption was
taken away by a subsequent amendment by act 35 of 1969.
thus as on 1.1.1970 cashew estate having an extent of ten
acres or more was liable to be included in the companyputation
of the ceiling area. plantation has been defined in
section 2 44  thus-
s.2 44 . plantation means any land used by a
person principally for the cultivation of tea
coffee companyoa rubber cardamom or cinnamon
 hereinafter in this clause referred to as
plantation crops  and includes-
 a  land used by the said person for any purpose
ancillary to the cultivation of plantation crops or
for the preparation of the same for the market

land companytiguous to or in the vicinity of or
within the boundaries of the area cultivated with
plantation crops number exceeding twenty per cent of
the area so cultivates and reserved by the said
person and fit for the expansion of such
cultivation
 c  agricultural lands interspersed within the
boundaries of the area cultivated by the said
person with plantation crops number exceeding such
extent as may be determined by the land board or
the taluk land board as necessary for the
protection and efficient management of such
cultivation. explanation - lands used for the companystruction of
office buildings godowns factories quarters for
workmen hospitals school and play ground shall be
deemed to be lands used for the purpose of sub-
clause a . plantation as defined in the act is exempted under
clause e  of sub-section 1  of section 81. plantation is
also land specified in schedule ii. the appellant as on 1.1.1970 was holding 31 acres 6.5
cents of land. this includes 14.5 acres of rubber
plantation which was originally cashew estate. the
appellant companyverted cashew estate into rubber plantation in
1967. the claim for exempting the rubber plantation from
the companyputation was rejected by the taluk land board in view
of the provisions in sub-section  4  of section 82 on the
ground that cashew estate was number an exempted
category on 1.1.1970. the high companyrt in revision affirmed
the decision of the taluk land board on this point. the appellant while reiterating the claim for
exemption under section 81 1  e  has urged that a
conversion of land falling under one exempted category to
anumberher exempted category does number companye under the mischief
of sub-section 4  and therefore the impugned decision is
wrong. shri krishnamurthy iyer the senior companynsel for
the appellant maintains that the provisions of chapter iii
do number apply to the lands specified in section 81 and if
the provisions do number apply section 82 4  in chapter iii
can have numberapplication to plantation. it is therefore
argued that companyversion of any land into plantation is number
attracted by sub-section  4  of section 82. anumberher limb of
his argument is that sub-section  4  of section 82 has been
amended from time to time and as it stood before 1.1.1970
plantation was number included in that sub-section. since
plantation has been included only with effect from 1.1.1970
the companyversion of cashew estate into plantation before the
amendment is number attracted by the sub-section. the learned
counsel also relied on the decision of this companyrt in state
of kerala v. philomina air 1976 sc 2363. that decision
related to transfer falling under section 84 3 . kayal
padasekharams of kuttanad area specified in schedule iv so
long as such padasekharams are used for the cultivation of
paddy or such other crops as the government may numberify had
been exempted under clause  i  of sub-section  1  of section

this clause was however omitted by act 35 of 1964.
under section 84 all voluntary transfers effected after the
date of publication of kerala land reforms bill1963 by a
family or any member thereof holding land in excess of the
ceiling area shall be deemed to be transfers calculated to
defeat the provisions of the act and shall be invalid. in
state of kerala v. thomas  1987  1 klt 530 the question
arose whether voluntary transfers of kayal padasekharams
made between 15.9.63 and 1.1.70 were invalid. the high companyrt
of kerala held that such transfers were valid. that
decision was affirmed by this companyrt in state of kerala v.
philomina  supra . on the ratio of this decision it was
maintained that the provision companytained in section 84 3  did
number have any repercussion at all on the exemptions granted
under section 81 1  was number effected. this companyrt stated
thus-
so even though by virtue of section 84 of the act
all voluntary transfers effected after september
15 1963  date of publication of kerala land
reforms bill 1963 in the gazette  were
invalid the transfers made in respect of kayal
padasekharams in appeals number 907-909 companyld number be
held to be invalid for the simple reason that they
were exempt from the provisions of chapter iii. that exemption was numberdoubt withdrawn by section 65
of act 35 of 1969 which amended the act but it is
number disputed before us that the section was number
brought into force until january 1 1970. the
voluntary transfers made between september 151963
and january 1 1970 were therefore valid and there
is numberforce in the argument of the advocate general
that the amendment brought about by section 65 of
act 35 of 1969 should be given retrospective effect
from april 1 1964 as section 82 and 84 of the act
were brought into force from that date. there is
also numberforce in the other argument of the advocate
general that section 84 had the effect of
invalidating the transfers effected after september
15 1963 for that was the date of publication of
the kerala land reforms bill in the gazette. the
argument overlooks the fact that as has been
mentioned kayal lands were exempt from the
provisions of chapter iii until as late as january
1.1970.
it is well settled that a statute is number to be read
retrospectively except of necessity. there is no
such necessity in the cases before us for the
legislature decided to exempt the aforesaid kayal
lands from the operation of the restrictions and
even though amending act 35 of 1969 was promulgated
on december 171969. section 65 therefore which
withdrew the exemption was number brought into force
until january 11970.
it is argued that the same principle should be applied
in respect of exemption falling under clause f  of sub-
section 1  of section 81. reliance has also been placed on
full bench decision in ramunni nair v. state of kerala
 1976  klt 632 and chettiam veettil ammad v. taluk land
board 1979 3 scr 839.
the transfer falling under section 84 cannumber be equated
to the companyversion falling under section 82 4 . the ceiling
provisions companytained in section 82 and 83 came into force on
1.1.1970. the companyputation of the ceiling area has to be
made in accordance with the provisions companytained
under section 82 as it stood on 1.1.1970. under sub-
section 4  of section 82 where any class of land specified
in scheduled ii has been companyverted into a plantation after
the companymencement of the act the extent of land liable to
be surrendered by a person owning or holding such land has
to be determined without taking into companysideration such
conversion. cashew estate is land specified in scheduled ii
as on 1.4.1964 as well as on 1.1.1970 therefore the
conversion of cashew estate after 1.4.1964 and before
1.1.1970 into plantation would squarely fall under the
mischief of this sub-section. the fact that cashew estate
was an exempted category until 1.1.1970 does number make any
difference so long as the exemption was number available as on
1.1.1970 when the companyputation was to be made. if the
exemption companytinued on 1.1.1970 sub-section 6  would
entitle the holder to have the land excluded under the
provisions of sub-section 6 . since the companyputation is made
as on 1.1.1970 and the land held as on that date ignumbering
the companyversion effected after 1.4.1964 is number exempted the
case has numberanalogy to the transfer of exempted land prior
to 1.1.1970 falling under clause  1 . at the time when the
transfer was effected the land was exempted. the provision
of section 82 was number applicable. it is for that reason
that the transfer has to be held valid. so far as
conversion is companycerned the land companytinue to be held by the
owner and the law is clear that such companyversion is to be
ignumbered in companyputing the ceiling area. there is therefore
numberforce in the companytention advanced on the basis of
aforesaid decision. we shall also refer to the decision of the kerala high
court in aleykutty john v. taluk land board  1981  klt 731
and ramunni nair v. state of kerala  1976  klt 632. there
has number been serious companytroversy on the fact that the land
in question was cashew estate prior to 1.4.1964 and that it
had been companyverted into rubber plantation after that date
and before 1.1.1970. as the companyversion has to be ignumbered the
land companyld be treated only as cashew estate for the purpose
of companyputation and number as plantation.