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N: Criminal Appeal Nos.
429 to 437 of 1981.
Appeals by Special leave from the Judgment and Order dated the 1st December, 1980 of the Punjab & Haryana High Court in Criminal Appeal Nos.
374 DB to 379 DB of 1980 and Murder Reference No. 5 of 1980 D. Mukherjee and R.L. Kohli, K. R. Nagraja, P. Krishna Rao and Arun Madan, for the Appellants, in Crl.
A. No. 431 of 1981.
Harbans Singh and D.D Sharma for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
Ten persons were tried by the learned Additional Sessions Judge, Ferozepur, for offences under section 302 read with sections 120B and 149 of the Penal Code on the charge that, in pursuance of a conspiracy, they caused the death of five persons and injuries to three others on the night between the 29th and the 30th September 1978 in the village of Kaile.
Convicting nine out of these for the offences of conspiracy and murder, the learned Judge sentenced accused Nos. 1, 3, 4, 5, 6 and 7 to death and accused Nos. 2, 8 and 9 to life imprisonment.
Accused No. 10 Harbans Kaur, wife of accused No. 2 Darshan Singh alias Bhasuri, was acquitted.
The High Court of Punjab and Haryana confirmed the death sentence imposed upon accused Nos. 1, 3, 5, 6 and 7, but reduced the sentence of accused No. 4 to life imprisonment.
Thus, in these appeals by special leave, we have before us five persons who are sentenced to death and two who are sentenced to imprisonment for life.
Buta Singh, the son of accused No, 1, was murdered in June 1977.
Certain members of the family of those who were murdered in the instant case were tried for the murder of Buta Singh, but they were acquitted in March 1978.
That is the background of the incident leading to the present crime and furnishes its motive.
Mohinder Singh (P.W. 15) who had a farm house in village Kaile, used to live therein with his family, including his brothers Jarnail Singh (since deceased) and Nirval Singh (P.W. 16).
On the 608 night between 29th and 30th September 1978, Mohinder Singh and the members of his family were sleeping in the courtyard of the farmhouse.
It is alleged that accused Nos.
3 to 10, most of whom were carrying firearms, entered the courtyard from the western side and fired at the persons who were sleeping in the courtyard Sohan Singh, a member of Mohinder Singh 's family, woke up and fired at the accused in self defence.
After he was hit by a shot fired by the accused, Mohinder Singh took his gun and fired at the accused, killing a person called Darbara Singh who belonged to the party of the accused.
As a result of the shots fired by the accused, Jarnail Singh, Amar Singh and Sher Singh died instantaneous deaths.
Wassan Singh died soon thereafter in the hospital, while Sohan Singh died early next morning after making a dying declaration.
Nirval Singh (P.W. 16) and Sant Kaur (P.W. 24) received gunshot injuries.
A bullock and calf also perished and a buffalo was injured in the incident.
Shortly after the occurrence, Tarlok Singh, the Sarpanch of the village, and a brother of his reached the place of occurrence.
Wassan Singh, Sohan Singh, Nirval Singh and Sant Kuar were removed to the hospital, while Mohinder Singh went to the Dharamkot Police Station and lodged his First Information Report, Exhibit PHH, at 2.30 a.m.
Accused No. 1 Darshan Singh alias Bhasuri, accused No.2 Joga Singh and accused No. 9 Sadha Singh were put under arrest after they surrendered themselves in October November 1978.
Accused No. 6, Bakhshish Singh, was arrested on October 20, 1978.
One SBBL boregun (Exh.
P 60) and four live cartridges were recovered from his person under the recovery memorandum exhibit P.GGG.
Accused Nos. 3 and 7, Sarbjit Singh and Manohar Singh, were arrested on the night between 22nd and 23rd October, 1978.
One SBBL 12 bore unlicensed gun (Exh.
P 76) and three live cartridges were seized from the person of accused No. 3 under the Memo Exh.
P. ZZZ.
A self loaded unlicensed rifle (Exh.
P. 73) loaded with 2 live cartridges along with 2 spare cartridges were recovered from Accused No. 7 under the Memo Exh.
P. XXX.
Accused No. 5, Darshan Singh was arrested on October 23, 1978.
An unlicensed 303 rifle (Exh. P.67) and 5 live cartridges were recovered from his person under the Memo Exh.
P. TTT.
Accused No. 4, Swaran Singh was arrested on October 24, 1978.
An unlicensed country made 315 pistol (Exh.
P. 80) and four live cartridges were seized from his person under the Memo Exh.
P. CC.
The empties which were recovered from the place of occurrence were sent for examination to the Forensic Science Laboratory.
609 In order to prove the charges against the accused, the prosecution examined as many as 53 witnesses while the accused examined 16 witnesses in their defence.
The case of the prosecution however rests mainly on three categories of evidence : (1) the evidence of the three eye witnesses, Mohinder Singh (P.W.15), Nirval Singh (P.W.16); and Sant Kaur (P.W.24), (2) the dying declaration (Exh. PV) made by Sohan Singh; and (3) the recovery of firearms and cartridges from the possession of accused Nos. 3, 4, 5, 6 and 7.
The evidence of the Ballistic Expert Kumar (P.W. 53) shows that the empty shells and cartridges recovered from the place of occurrence were fired from the various weapons recovered from these accused.
On the question of conspiracy, the prosecution led the usual kind of puerile evidence, as for example, of someone over hearing something while on way to answering a call of nature.
Here the strain was changed by alleging that Suran Singh (P.W. 27) heard a most damaging conversation between the accused while he was negotiating the purchase of a tractor.
Evidence was also produced to show that a wallet was found at the scene of offence, containing a letter (exhibit P. 53) sent by one of the accused to another of them, discussing the threads of conspiracy.
The First Information Report lodged by Mohinder Singh (P.W. 15) mentions the names of accused Nos. 2, 3, 8 and 9 only.
The fact that the names of the other accused are not mentioned in the F.I.R. was at least a circumstance which the prosecution had to explain, though no rule of law stipulates that an accused whose name is not mentioned in an F.I.R. is entitled to an acquittal.
But instead of considering the circumstances in which, and the reasons for which, Mohinder Singh did not mention the names of the other accused in the F.I.R, the High Court took the view that the omission in the F.I.R. was a matter of little consequence since it was made good by the fact that Sohan Singh had mentioned the names of all the accused in his dying declaration.
The High Court says : "Dying declarations is a sacred statement given by a dying man and it is settled law that much value is to be attached to a dying declaration, especially when it is corroborated by other independent evidence .
In fact, the shadow of immediate death is the best guarantee of the truth of the statement made by a dying man regarding the causes of circumstances leading to his death which are absolutely fresh in his mind and is unstinted or discoloured by any other consideration except speaking the truth." 610 The High Court, with respect, overlooked that the dying declaration itself is open to grave exception in this case.
It implicates accused Nos. 3 to 9 but the evidence of Dr. Birinder Pal (P.W. 2) who conducted the postmortem examination on the body of Sohan Singh shows that his vital organs like the peritoneum, stomach and spleen were "completely smashed" and that "there were remote chances of his remaining conscious after receipt of injury No. 3", that is to say, the injury on the left iliac fosa which caused the rupture of the spleen.
The incident took place at about midnight of the 29th and 30th while the dying declaration is alleged to have been made by Sohan Singh at 7 a.m., on the 30th.
If the vital organs of Sohan Singh were "completely smashed", it is impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death.
True, he was quite near his Creator on the morning of the 30th, dangerously so indeed, and we may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges.
But Sohan Singh was too ill to entertain any thoughts, good or bad, and he could not possibly have been in a position to make any kind of intelligible statement.
Therefore, his dying declaration cannot be relied upon for any purpose and has to be excluded from consideration.
When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it.
The evidence regarding conspiracy is as weak as the evidence about the dying declaration of Sohan Singh, Surat Singh (P.W. 27) speaks of a meeting between the co conspirators in the house of accused No. 1, Darshan Singh alias Bhasuri.
We cannot believe that in the presence of an utter stranger like Surat Singh, the conspirators would discuss their plans to commit these murders, throwing all caution to the winds.
The answer of the High Court is that the conspirators were taking liquor while discussing the conspiracy and, "When liquor is taken, then under its influence sometimes most secret things are divulged in the presence of a person who is not so intimately connected.
It is often said, when liquor goes in, truth comes out.
" This is somewhat artless.
Liquor is no life detector and we cannot assume that accused Nos. 1 and 2 were so drunk as to overlook the presence of a stranger in their midst yet not so drunk 611 so as to be unable to discuss the execution of their criminal design.
Besides, Surat Singh forgot all about the incident and was contacted by the police a few days later.
The learned Sessions Judge was right in holding that Surat Singh 's evidence suffers from certain infirmities, because of which one could not place implicit reliance upon him.
We would go further and say that his evidence is too unnatural to merit serious attention.
Apart from the evidence of motive, Surat Singh 's evidence in regard to the conspiracy is the only evidence against accused No. 1 Bhasuri and accused No. 2 Joga Singh.
It is on that evidence that these two accused have been convicted under section 120 B read with section 302 of the Penal Code, the former being sentenced to death and the latter, because of his young age, to life imprisonment.
The evidence of the three eye witnesses, Mohinder Singh (P.W. 15), Nirval Singh (P.W, 16) and Sant Kaur (P.W. 24) is broadly true and since that evidence has been accepted by both the courts, we will not scan it any further.
It is, however, necessary to state that these eye witnesses are not likely to have seen the specific part played by each one of the accused.
The night was dark, the time midnight and the witnesses, who were fast asleep, were woken up either by barking of the dogs or by the sound of gun shots.
There was a small lantern hanging a few feet away.
Mohinder Singh concealed himself behind a pillar and fired shots at the accused in self defence, killing a person on the side of the accused.
He has named accused 3, 5, 6 and 8 while Nirval Singh and Sant Kaur who received gun shots injuries have named accused 3 to 9.
The evidence of the last two witnesses in regard to the presence of accused 3 to 9 and their being armed appears to us to be open to no exception.
Shri Kohli who appears on behalf of accused No. 5 says that the name of that accused was not mentioned in the F.I.R., not even in the supplementary F.I.R., and that he was not involved in the conspiracy.
That is so, but the failure of Mohinder Singh to refer to everyone of the accused in the F.I.R., does not detract from the evidence of the two injured witnesses in regard to the presence of accused No. 5.
Hiding behind a pillar, Mohinder Singh was evidently not in a position to see the whole of the incident.
The evidence of these two eye witnesses is corroborated by the circumstances that fire arms and cartridges were recovered from the possession of accused Nos. 3 to 7 at the time of their arrest.
The evidence of the Ballistic Expert, Kumar (P.W. 53) shows that the 612 empty shells and cartridges recovered from the place of occurrence were fired from the various weapons recovered from these accused.
The result of this discussion is that in so far as accused Nos. 1 and 2 are concerned, there is no evidence on the basis of which they can be convicted, once Surat Singh is disbelieved and the story of conspiracy discounted.
Accused 1 and 2 were not present at the scene of occurrence and obviously, Mohinder Singh involved accused No. 2 on a surmise by naming him in the F.I.R. He corrected himself during his evidence in the court which he had to do since Accused 2 's presence at the scene of offence was impossible to accept.
In so far as the other accused are concerned, namely, accused Nos. 3 to 9, their presence and participation in the incident in question is proved beyond doubt.
Their conviction under section 302 read with section 149 of the Penal Code must therefore be upheld.
In so far as the death sentence imposed upon accused Nos. 1, 3, 5, 6 and 7 is concerned, accused No. 1 is entitled to an acquittal, as a result of which the death sentence imposed upon him has to be set aside.
The learned Sessions Judge did not impose death sentence upon accused No. 2 because he was young, that is, about 20 22 years of age.
We find that accused Nos. 3, 6 and 7 are much younger than accused No. 2: accused 3 and 6 were 19 while accused No. 7 was 18 years of age on the date of offence.
If age was a circumstance in favour of accused No. 2, it is even more so in the case of accused Nos. 3, 6 and 7.
Besides, in a case like this when a large group of persons took part in the murders and untrue evidence has been mixed up with the true evidence, it becomes difficult to hold any particular accused guilty of any particular act.
Therefore, while upholding the conviction of accused 3, 6 and 7, we set aside the death sentence imposed upon them and sentence them to imprisonment for life.
Accused No. 5 was about 35 years of age but it makes no sense to sentence him to death for the reason merely that he is older than the others.
He was certainly not the leader of the gang as one could have said about accused No. 1, had he been present.
The death sentence imposed upon accused No. 5 must therefore be set aside which we hereby do.
We sentence him to life imprisonment.
In the result, accused Nos. 1 and 2 are acquitted and the order of conviction and sentence recorded against them is set aside.
They are entitled to be released forthwith.
We uphold the conviction of accused Nos. 3 to 9 but set aside the sentence of death 613 imposed upon accused Nos. 3, 5, 6 and 7 and sentence them to imprisonment for life.
The sentence of life imprisonment imposed upon accused 4 stands.
The conviction of accused Nos. 8 and 9 under section 302 read with section 149 of the Penal Code is upheld as also the sentence of life imprisonment imposed upon them.
S.R. Appeal partly allowed.

Output:
Appellants along with three others were tried by the Additional Sessions Judge, Ferozepore for offences under Section 302 I.P.C. read with sections 120 B and 149 on the charge that, in pursuance of a conspiracy, they caused the death of five persons and injuries to three others on the night between the 29th and 30th September, 1978 in the village of Kaila.
The background of the incident leading to the crime and furnishing its motive was that certain members of the family of those who were murdered in the instant case were tried for the murder in June 1977, of Buta Singh, the son of accused No. 1 but acquitted.
In order to prove the charges against the accused, the prosecution examined as many as 53 witnesses while the accused examined 16 witnesses in their defence.
The case of the prosecution rested mainly on three categories of evidence : (1) the evidence of the three eye witnesses, Mohinder Singh (PW 15), Naval Singh (PW 16) and Sant Kaur (PW) 247 ; (2) the dying declaration (Exh. PV) made by Sohan Singh ; and (3) the recovery of fire arms and cartidges from the possession of Accused Nos.
3,4,5,6.
and 7.
The Additional Sessions Judge convicted nine out of the ten accused for the offences of conspiracy and murder, sentenced accused nos.
1, 3, 4, 5, 6 and 7 to death and accused nos.
2, 8 and 9 to life imprisonment.
Accused No. 10, Harbans Kaur, wife of accused No. 2 Darshan Singh alias Bhasuri, was acquitted.
The High Court of Punjab and Haryana confirmed the death sentence imposed upon accused nos.
1, 3, 5, 6 and 7, but reduced the sentence of accused No. 4 to lift imprisonment.
Hence the appeals by five persons who are sentenced to death and two who are sentenced to life imprisonment.
Accepting the appeals of accused 1 and 2 and acquitting them, and, while maintaining the convictions of the rest, but altering the sentence of death imposed on accused nos.
3, 5, 6 and 7 to one of life imprisonment, the court 606 ^ HELD: 1 : 1 No rule of law stipulates that an accused whose name is not mentioned in the First Information Report is entitled to an acquittal.
The fact that the names of other accused are not mentioned in the First Information Report was at least a circumstance which the prosecution had to explain [609 D E] In the instant case, the High Court, instead of considering the circumstances in which, and the reasons for which, Mohinder Singh did not mention the names of the other accused in the First Information Report, erroneously took the view that the omission in the F.I.R. was a matter of little consequence since it was made good by the fact that Sohan Singh had mentioned the names of all the accused in his dying declaration, further overlooking the fact that the dying declaration itself was open to grave exception.
[609 E F, 610A] 1 : 2 When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it.
[610 E] Here, if the vital organs of Sohan Singh, according to Dr. Birinder Pal (PW 2) who conducted the postmortem examination on his body, were "completely smashed", it is impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death.
True, he was quite near his creator on the morning of the 30th, dangerously so indeed, so that one may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges.
But, Sohan Singh was too ill to entertain any thoughts, good or bad, and he could not possibly have been in a position to make any kind of intelligible statement so as to implicate accused 3 to 9.
His dying declaration cannot therefore, be relied upon.
[610 B D] 2.
Liquor is no lie detector.
The evidence regarding conspiracy, let in through the mouth of Surat Singh (PW 27) an utter stranger, to implicate Accused nos.
1 and 2 to the effect that the conspirators discussed their plans to commit the murders, throwing all caution to winds and in an intoxicated condition cannot be believe.
It cannot be assumed that accused nos.
1 and 2 were so drunk as to overlook the presence of a stranger in their midst and yet not so drunk so as to be unable to discuss the execution of their criminal design.
Once Surat Singh is disbelieved and the story of conspiracy is discounted, the resultant conclusion obviously is the absence of Accused nos.
1 and 2 at the scene of occurrence entitling them to an acquittal [610 F, H, 611 A B] 3.
If age was a circumstance in favour of one of the accused, the same criterion must be applied to all.
More so in a case like this, when a large group of persons took part in the murders and untrue evidence has been mixed up with the true evidence, it becomes difficult to hold any particular accused guilty of any particular act.
[612 E, F] 607


Input:
ON: Civil Appeal No. 2732 of 1980.
From the Judgment and Order dated 25.8.1980 of the Andhra Pradesh High Court in C.R.P. No. 7974 of 1979.
155 A.V. Rangam for the Appellant.
C. Setharamaiah, P.K. Rao, V.A. Babu and K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against the judgment of a learned Single Judge of the Andhra Pradesh High Court in Civil ' Revision Petition No. 7974 of 1979.
The appellant before us is the tenant and the original respond ent is the landlord who is dead and is represented by his legal representatives.
The premises in question are in Eluru Town in Andhra Pradesh.
The appellant is carrying on business in the name and style of Sri Panduranga Engineering Company.
According to the original respondent (who will hereinafter be referred to as "the respondent") he was the owner of the building in which the said premises situated and hence, the owner of the said premises.
The respondent filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the said claim.
The appellant in his counter to the eviction petition, inter alia, alleged that the said property in which the said premises were situated was the absolute endowed property of punyamurthula vari Choultry of which the original respondent was the de facto trustee and that the original respondent had no per sonal or proprietary interest in the said property.
He asserted that the said property belonged to the said Choul try and that the original respondent had no manner of right to evict the appellant on the ground of personal use and occupation.
The appellant asserted that the said premises were not the individual property of the original respondent but trust property.
The respondent filed a rejoinder denying that the said premises were the endowed property or that the said property was a part of punyamurthulavari Choultry.
He asserted that he was the absolute owner of the said property which was purchased by his father under a registered sale deed dated 29th June, 1908.
The respondent submitted that the appellant had denied his title and, as the said denial was not bona fide, the appellant was liable to be evicted also on the ground of denial of title of the landlord.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the landlord respondent was made out and also on the ground that the appellant tenant had denied the title of respondent landlord which 156 denial was not bona fide.
The appellant preferred an appeal against the said decision to the Appellate Authority.
The Appellate Authority, however, dismissed the appeal upholding both the grounds of eviction found by the Rent Controller.
Against this decision, the appellant preferred a revision petition to the High Court.
The High Court in its impugned judgment upheld the order of eviction only on the ground of denial of title which was not a bona fide denial.
It is this decision of the High Court which is challenged before us.
The finding that the denial of title was not bona fide, is essentially a finding of fact and, fairly enough, no dispute has been raised by learned counsel for the appellant in respect of that finding.
It is, however, submitted by him that in order to constitute a ground for eviction the denial of title .must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not constitute a ground for eviction.
He drew our attention to the provisions of section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the A.P. Rent Act").
The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unreasonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
The relevant part of sub section (2) of section 10 of the A.P. Rent Act runs as follows: "(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied; (i) x x x x (ii) x x x x (iii) x x x x (iv) x x x x (v) x x x x (vi) that the tenant has denied the title of the land lord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and 157 if the controller is not so satisfied he shall make an order rejecting the application.
" It was urged by learned counsel for the appellant that the ground for eviction must come into existence before the application to the Rent Controller for eviction is made and hence, a denial of title which can be relied upon by the landlord respondent for eviction must be.
anterior to the eviction petition.
In support of his contention, Mr. Rangam, learned coun sel for the appellant placed reliance on the decision of a Bench of this Court in Kundan Mal vs Gurudutta, Judgments Today In that case it has been observed that in providing disclaimer as a ground for eviction of a tenant in clause (f) of section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 the Legis lature decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act.
The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and reprobate at the same time.
Since the consequence of applying the rule is very serious, it must be held that the denial of title to has to be clear and in unequivocal terms.
In our view, this decision is hardly of any assistance to learned counsel.
The principle laid down in that case is that, in order to constitute a ground for eviction, the denial of title has to be clear and in unequivocal terms.
In the present case, the facts found show that the denial of title of the respondent by the appellant was in dear and unequivocal terms.
Although it is observed in the said judgment that in providing this ground for eviction, the Legislature of the State of Rajasthan decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act, the judgment nowhere lays down that the denial of title must be anterior to the eviction petition nor does it say that the provisions relating to eviction of tenants under the Transfer of Property Act are applicable to the eviction of tenants under the Rajasthan Rent Act.
In this connection we may point out that it is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
Moreover, it is signifi cant that in the present case, the denial of the landlord 's title was not the only ground pleaded in support of the claim for eviction but it was also contended by the respond ent that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
158 It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction.
It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made.
The denial must be anterior to the eviction pro ceedings.
In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore vs Rukmani Pattamahdevi, 46 I.A. 109; AIR 1919 P.C. 1.
In our view, this argument also does not stand scrutiny.
In V. Dhanapal Chettiar vs Yesodai Arnrnal, ; a Constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person contin uing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by neces sary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determi nation of the lease is necessary because during the continu ance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections.
He cannot recover possession merely by determining the tenancy.
Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy.
In the case before us, we find that the denial of landlord 's title by the tenant has been expressly made a ground for eviction under section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier.
In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent 159 Act is knocked out.
In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected.
We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlord 's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See: Sada Ram and Others vs Gajjan Shiama, AIR 1970 Punjab & Haryana 511; Shiv Parshad vs Smt.
Shila Rani, AIR 1974 H.P. 22 and Machavaram Venkata Narayana Rao vs Sarvepalli Nara yana Rao Sarada and another, As ob served by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for eject ment of the tenant on the ground of forfeiture entailed by the tenant 's denial of his character as a tenant in the written statement.
It was submitted by learned counsel for the appellant that, in any event, the respondent failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do so in order to get relief on that ground which had arisen after the eviction petition was filed.
We agree that normally this would have been so but, in the present case, we find that the Trial Court, namely, the Rent Controller, framed an issue as to whether the tenant 's denial of the landlord 's title to the schedule property including the said premises was bona fide.
The parties went to trial on this clear issue and the appel lant had full knowledge of the ground alleged against him.
It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide.
If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground.
Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.
No other argument have been advanced before us.
In the result, the appeal fails and is dismissal with costs.
S.K.A. Appeal dis missed.

Output:
The appellant tenant was in occupation of the premises and carrying on business.
The original respondent who was the owner of the said premises filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the claim and alleged that the property in which the said premises were situated was the absolute endowed property of which the original respondent was the de facto trustee and as such he had no personal or proprietary interest in the said property to evict the appellant on the ground of personal use and occupation.
The respondent asserted that he was the absolute owner of the said premises.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the respondent landlord was made out and also on the ground that the appellant had denied the title of the respondent which denial was not bona fide.
The appellant filed an appeal before the Appellate Authority which was dismissed upholding the order of eviction passed by the Rent Controller.
The appellant preferred a revision petition to the High Court and a Single Judge of the High Court also upheld the order of eviction.
The appellant came in an appeal to this Court by special leave.
It was contended for the appellant that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not con stitute a ground for eviction.
The contention on behalf of the respondent was that the denial of the landlord 's title was not the only ground pleaded for eviction but it was also contended that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
Dismissing the appeal by special leave, this Court, 154 HELD: The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unrea sonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub Section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
[156D E] It is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
[157F] Kundan Mal vs Gurudutta, Judgments today (1989) 1 S.C. 147, not applicable.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant sec tion of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of the terms landlord and tenant contained in the Rent Acts, remains a landlord and the tenant remains a tenant, because of the express provision made in the enactments that a tenant means or includes 'a person continuing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
[158D E] Maharaja of Jaypore vs Rukmani Pattamahdevi, 46 I.A. 109; A.I.R. [1919] P.C. 1 and V. Dhanapal Chattiar vs Yeso dai Ammal; , , referred to.
Sada Ram and Others vs Gajjan Shiama, A.I.R. 1970 Punjab H.P. 22 and Machavaram Venkate Narayana Rao vs Sarvepalli Narayane Rao Sarada and another, , relied upon.


Input:
riminal Appeals Nos.
20 to 23 of 1955.
Appeals by special leave from the judgment and order dated May 7, 1954, of the Madras High Court in Criminal Revision Cases Nos. 57 to 60 of 1954 and Case Referred Nos.
2 to 5 of 1954.
N. C. Chatterji, section Venkatakrishnan and section Subramanian, for the appellants.
V. K. T. Chari, Advocate General, Madras, Ganapathy Iyer and T. M. Sen, for the respondent.
November 28.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The point for decision in these appeals is whether sections 4(2), 28, 29, 30, 31 and 32 of the Madras Prohibition Act No. X of 1937, hereinafter referred to as the Act, are unconstitutional and void.
It will be convenient first to set out the impugned statutory provisions.
Section 4, omitting what is not material runs as follows; 401 4(1) " Whoever (a) imports, exports, transports or possesses liquor or any intoxicating drug; or (g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug; or (j) consumes or buys liquor or any intoxicating drug ; or (k) allows any of the acts aforesaid upon premises in his immediate possession, shall be punished Provided that nothing contained in this sub section shall apply to any act done under, and in accordance with, the provisions of this Act or the terms of any rule, notification, order, licence or permit issued thereunder.
(2) It shall be presumed until the contrary is shown (a) that a person accused of any offence under clauses (a) to (j) of sub section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug, for the possession of which he is unable to account satisfactorily ; and (b) that a person accused of any offence under clause (k) of sub section (1) has committed such offence if an offence is proved to have been committed in premises in his immediate possession in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug.
402 Section 28 provides that if any Collector, Prohibition Officer or Magistrate has reason to believe that an offence under section 4(1) has been committed, he may issue a warrant for search.
Section 29 confers on certain officers power to search and seize articles even without a warrant, under certain circumstances.
Section 30 provides for certain classes of officers entering any place by day or night for inspection of stills, implements, liquor and the like.
Section 31 authorises the officers empowered to make entry under sections 28, 29 or 30, to break open any door or window and remove obstacles, if otherwise they could not make entry.
Section 32 confers authority on a Prohibition Officer or any officer of the Police or Land Revenue Departments to arrest without warrant any person found committing any offence under section 4(1).
Now, the facts are that on November 18, 1953, the Prohibition Officer, Madras City, and the Deputy Commissioner of Police made a search of premises No. 28, Thanikachala Chetty Street, Thyagarayanagar, Madras, and seized several bottles of foreign liquor and glasses containing whisky and soda.
The appellant, Lakshmanan Chettiar, was residing at the premises, and the other three appellants, A. section Krishna, R. Venkataraman and V. section Krishnaswamy, were found drinking from the glass tumblers.
All the four were immediately put under arrest and in due course charge sheets were laid against them for offences under the Act.
The three appellants other than Lakshmanan Chettiar were charged under sections 4 (1) (a) and 4 (1) (j) for possession and consumption of liquor, and Lakshmanan Chettiar was charged under section 4 (1) (k) for allowing the above acts in premises in his immediate possession, a under section 12 for abetment of the offences.
He was also charged under section 4 (1) (a) on the allegation that though he was a permit holder, he was in possession of more units than were allowed under the permit, and that by reason of the proviso to that section, he had committed an offence under section 4 (1) (a).
Immediately after service of summons, the appellants filed an application unders.
432 of the Criminal Procedure Code, wherein they contended that sections 4(2) and 28 to 32 of the Act were 403 repugnant to the provisions of the Constitution, and were therefore void, and prayed that the above question might be referred for the decision of the High Court.
The Third Presidency Magistrate, before whom the proceedings were pending, allowed the application, and referred to the High Court as many as seven questions on the constitutionality of various sections of the Act.
This reference was heard by Rajamannar, C.J., and Umamaheswaram, J., who held, disagreeing with the appellants, that sections 4(2) and 28 to 32 were valid,, and answered the reference against them.
Against this judgment, the appellants have preferred the present appeals under article 136 of the Constitution.
Two contentions have been urged in support of the appeals: (1) Section 4(2) and sa.
28 to 32 of the Act are void under section 107 of the Government of India Act, 1935, which was the Constitution Act in force when the Act in question was passed, because they are repugnant to the provisions of existing Indian laws with respect to the same matter, to wit, I of 1872 and Criminal Procedure Code Act No. V of 1898, and (2) the impugned sections are repugnant to article 14 of the Constitution, and have therefore become void under article 13(1).
(1) Taking the first contention, the point for ' decision is whether the impugned provisions are hit by section 107 of the Government of India Act, 1935.
Subsection (1) of section 107, which is the relevant provision, runs as follows: "If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.
" For this section to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law and those of the Central legislation must both be in respect 404 of a matter which is enumerated ' in the Concurrent List, and (2) they must be repugnant to each other.
It is only when both these requirements are satisfied that the provincial law will, to the extent of the repugnancy, become void.
The first question, therefore, that has to be decided is, is the subject matter of the impugned legislation one that falls, within the Provincial List, in which case section 107 would be inapplicable, or is it one which falls within the Concurrent List, in which case the further question, whether it is repugnant to the Central legislation will have to be decided ? The Entries in the Lists which are material for the present discussion are the following: List II Provincial Legislative List.
Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List 111.
Offences against laws with respect of any of the matters in this list.
List III Concurrent Legislative List.
Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act.
Evidence and oaths; recognition of laws, public acts and records and judicial proceedings.
Now, it is not contested that the Madras Prohibition Act, as a whole, is a law in respect of intoxicating liquors, falling within Entry 31 of the Provincial list.
The declared object of the enactment as stated in the preamble to it is "to bring about the prohibition. of the production, manufacture, possession, export, import, transport, purchase, sale and assumption of 405 intoxicating liquors. .
And this is carried out in section 4(1), which enacts prohibition in respect of the above matters, and imposes penalties for breach of the same.
The other provisions of the Act may broadly be divided into those which are intended to effectuate section 4(1) and those which regulate the grant of licences and permits.
The legislation is thus on a topic which is reserved to the Provinces and would therefore fall outside a. 107(1) of the Constitution Act.
The argument of Mr. N. C. Chatterjee for the appellant is that though the Act is within the competence of the Provincial Legislature in so far as it prohibits possession, sale, consumption, etc., of liquor under 3.
4(1), the matters dealt with under section 4(2) and sections 28 to 32 fall not within Entry 31 of List II but within Entries 5 and 2 respectively of List III, and to that extent, the legislation is on matters enumerated in the Concurrent List.
He contends that a. 4(2) enacting as it does a presumption to be drawn by the court on certain facts being established, deals with what is purely a matter of evidence, and it is therefore not a law on intoxicating liquors but evidence.
Likewise, he argues, the provisions in sections 28 to 32 deal with matters pertaining to Criminal Procedure, such as warrants, seizure and arrest, and have no connection with intoxicating liquors.
It is accordingly contended that sections 4(2) and 28 to 32 are legislation under Entries 5 and 2 of List III, and that their validity must be tested under section 107(1).
The appellants are right in their contention that section 4(2) of the Act enacts a rule of evidence but does it follow from this that it is a law on evidence, such as is contemplated by Entry 5 in the Concurrent List ? so also sections 28 to 32 undoubtedly deal with matters of Procedure in relation to crimes, but are they for that reason to be regarded as legislation on Criminal Procedure Code within Entry 2 of List III ? The basic assumption on which the argument of the appellants rests is that the heads of legislation set out in the several Lists are so precisely drawn as to be mutually exclusive.
But then, it must be remembered that we are construing a federal Constitution, It is of the 406 essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces.
The scheme Of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping of, the fields of legislation is inevitable.
The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in sections 91 and 92 the topic, ,, on which the Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures.
It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.
That is to say, if a statute is found in substance to relate to a topic with.
in the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth, making a law on a subject beyond its competence.
But where that is not the position, then the fact of encroachmen does not affect the vires of the law even as regards the area of encroachment.
Vide Citizens Insurance Company of Canada vs William Parson8(1), The Attorney General of Ontario vs The Attorney General for the Dominion of Canada(1), The Attorney General of Ontari, vs The Attorney General for the Dominion(3 ), Union Colliery Company of British Columbia vs Bryden(4) Attorney General for ' Canada vs Attorney General for (1) [1881] 7 A. C. 96.
(3) (2) (4) 407 Ontario(,), Attorney General for Alberta vs AttorneyGeneral for Canada(2 ), and Board of Trustees of Letherbridge Northern Irrigation District vs Independent Order of Foresters(1).
The principles laid down in the above decisions have been applied in deciding questions as to the vires of statutes passed by the Indian legislatures under the Government of India Act, 1935.
In Subrahmanyan Chettiar vs Muttuswami Goundan(4), the question was as to whether the Madras Agriculturalist ' Relief Act IV of 1938, which was within the exclusive competence of the Provincial Legislature under Entries 20 and 21 in List 11 was ultra vires, in so far as it related to promissory notes executed by agriculturists by reason of the fact that under Entry 28, List I, "cheques, bills of exchange, promissory notes and other like instruments " were matters falling within the exclusive jurisdiction of the Centre.
In holding that the legislation was intra vires, Sir Maurice Gwyer C. J. stated the reason in these terms: " It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere.
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its ' pith and substance ' or its 'true nature and character ', for the purpose of determining whether it is legislation in respect of matters in this list or in that. . " This point arose directly for decision before the Privy Council in Prafulla 'Kumar Mukherjee vs The Bank of Commerce, Ltd. (5).
There, the question was whether the Bengal Money Lenders Act, 1940, which (1) (4) (2) (5) [1946 47] 74 I.A. 23.
(3) 53 408 limited the amount recoverable by a money lender for principal and interest on his loans, was valid in so far as it related to promissory notes.
Money lending is within the exclusive competence of the Provincial Legislature under Item 27 of List II, but promissory note is a topic reserved for the Centre, vide List 1, Item 28.
It was held by the Privy Council that the pith and substance of the impugned legislation being money lending, it was valid notwithstanding that it incidentally encroached on a field of legislation reserved for the Centre under Entry 28.
After quoting with approval the observations of Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar vs Muttuswami Goundan, (supra) above quoted, Lord Porter observed: "Their Lordships agree that this passage correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation. "No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provision should be attributed and those which are merely incidental.
But the overlapping of subjectmatter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions.
Subjects must still overlap, and where they do, the question must be asked what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found.
If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial legislation could never effectively be dealt with.
" Then, dealing with the question of the extent of the invasion by the Provincial legislation into the Federal fields, Lord Porter observed: "No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the 409 pith and substance of the impugned Act.
Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with ProVincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content.
" Then, there is the decision of the Federal Court in Lakhi Narayan Das vs The Province of Bihar (1).
There, the question related to the validity of Ordinance No. IV of 1949 promulgated by the Governor of Bihar.
It was attacked on the ground that as a legislation in terms of the Ordinance would have been void, under section 107(1) of the Government of India Act, the Ordinance itself was void.
The object of the Ordinance was the maintenance of public order, and under Entry I of List II, that is a topic within the exclusive competence of the Province.
Then the Ordinance provided for preventive detention, imposition of collective fines, control of processions and public meetings, and there were special provisions for arrest and trial for offences under the Act.
The contention was that though the sections of the Ordinance relating to maintenance of public order might be covered by Entry I in List II, the sections constituting the offences and providing for search and trial fell within Items I and 2 of the Concurrent List, and they were void as being repugnant to the provisions of the Criminal Procedure Code.
In rejecting this contention, Mukherjea J. observed: " Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same.
It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List 11 (1) 410 would come within Item 37 of List II itself, and have been expressly excluded from Item I of the Concurrent List.
The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain courts for that purpose would be covered completely by Item 2 of List II and it is not necessary for the Provincial Legislature to invoke the powers under Item 2 of the Concurrent List." He accordingly held that the entire legislation fell within Entries I and 2 of List II, and that no question of repugnancy under section 107(1) arose.
This reasoning furnishes a complete answer to the contention of the appellants.
The position, then, might thus be summed up When a law is impugned on the ground.
that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation.
To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions.
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might inci dentally trench on matters which are beyond its competence.
It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not.
Now, the Madras Prohibition Act is, as already stated, both in form and in substance, a law relating to intoxicating liquors.
The presumptions in section 4(2) are not presumptions which are to be raised in the trial of all criminal cases, as are those enacted in the Evidence Act.
They are to be raised only in the trial of offences under section 4(1) of the Act.
They are therefore purely ancillary to the exercise of the legis lative power in respect of Entry 31 in List 11.
So also, the provisions relating to search, seizure and arrest in sections 28 to 32 are only with reference to offences 411 committed or suspected to have been committed under the Act.
They have no Operation generally or to offences which fall outside the Act.
Neither the presumptions in section 4(2) nor the provisions contained in sections 28 to 32 have any operation apart from offences created by the Act, and must, in our opinion, be held to be wholly ancillary to the legislation under Entry 31 in List II.
The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature, and the question of repugnancy under section 107(1) does not arise.
(2) It is next contended that the presumptions raised in section 4(2) of the Act, are repugnant to article 14 of the Constitution, and that the section must accordingly be declared to have become void under article 13(1).
We are unable to see how section 4(2) offends the requirement as to equality before law or the equal protection of laws.
The presumptions enacted therein have to be raised against all persons against whom the facts mentioned therein are established.
The argument of Mr. N. C. Chatterjee is that the facts set out in section 4(2) on which the presumption of guilt is raised have no reasonable relation to the offences themselves, that for example, possession of liquor can be no evidence of possession of materials or apparatus for manufacture of liquor under section 4(1)(g), nor possession of materials, apparatus for manufacture of liquor, evidence of possession or consumption of liquor under section 4(1) (a) and (j), and that therefore the impugned provision must be struck down as denying equal protection.
He relied in support of this contention on the following observations of Holmes J. in William N. McFarland vs American Sugar Refining Company (1): " As to the presumptions, of course the legislatures may go a good way in raising one or in changing the burden of proof, but there are limits.
It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.
Mobile J. & K.C.R. Co. vs Turnipseed(2)." (1) ; at 86 87 ; ; , 904.
(2) ; , 43; ; , 80.
412 The law on this subject is thus stated by Rottschaefer on Constitutional Law, 1939 Edition, at page 835: " The power of a legislature to prescribe rules of evidence is universally recognised, but it is equally well established that due process limits it in this matter.
It may establish rebuttable presumptions only if there is a rational connection between what is proved and what is permitted to be inferred therefrom.
" The law would thus appear to be based on the due ,process clause, and it is extremely doubtful whether it can have application under our Constitution.
But a reference to American authorities clearly shows that the presumptions of the kind enacted in section 4 (2) have been upheld as reasonable and not hit by the due process or equal protection clause.
In Albert J. Adams vs People of the State of New York (1), a law of New York had made it an (offence to be knowingly in possession of gambling instruments, and enacted further that possession of such instruments was presumptive evidence of knowledge.
It is thus in terms similar to section 4(1)(a) of the Act, which makes it an offence to be in possession of liquor, and to section 4(2) which raises a rebuttable presumption of guilt under section 4(1)(a).
In rejecting the contention that the presumption was a violation of the due process clause, the Court observed: " We fail to perceive any force in this argument.
The policy slips are property of an unusual character, and not likely, particularly in large quantities, to be found in the possession of innocent parties.
Like other gambling paraphernalia, their possession indicates their use or intended use, and may well raise some inference against their possessor in the absence of explanation.
Such is the effect of this statute.
Innocent persons would have no trouble in explaining the possession of these tickets, and in any event the possession is only prima facie evidence, and the party is permitted to produce such testimony as will show the truth concerning the possession of the slips.
Furthermore, it is within the established power of the state to prescribe the evidence which is to be received in the courts of its own government." (1) ; ; 413 In Robert Hawes vs State of Georgia (1), the question arose with reference to a statute of the State of Georgia, which had made it an offence to knowingly permit persons to locate in premises apparatus for distilling and manufacturing prohibited liquors.
It also enacted a presumption that when such apparatus was found in a place, the person in occupation thereof shall be presumed to have knowingly permitted the location of the apparatus.
The question was whether this presumption was repugnant to the due process clause.
In holding that it was not, the Court observed: " Distilling spirits is not an ordinary incident of a farm, and, in a prohibition state, has illicit character and purpose, and certainly is not so silent and obscure in use that one who rented a farm upon which it was or had been conducted would probably be ignorant of it.
On the contrary, it may be presumed that one on such a farm, or one who occupies it, will know what there is upon it.
It is not 'arbitrary for the state to act upon the presumption and erect it into evidence of knowledge;.
not peremptory, of course, but subject to explanation, and affording the means of explanation.
" It is therefore clear that even on the application of the due process clause, the presumptions laid down in section 4(2) cannot be struck down as unconstitutional.
We should add that the construction which the appellants seek to put on section 4 (2) that a person in possession of liquor could, under that section, be presumed to have committed an offence under section 4(1) (g) or that a person who is in possession of materials, implement or apparatus could be presumed to have committed offences under section 4 (1) (a) and (j) is not correct.
In our opinion, the matters mentioned in section 4 (2) should be read distributively in relation to the offences mentioned in section 4(1).
Possession of liquor, for example, is an offence under section 4(1) (a).
The presumption in section 4(2) is that if it is found in the possession of a person, he should be presumed to have committed the offence under section 4(1)(a), unless he could give satisfactory explanation therefor, as for example, that it must have been foisted in the place without his knowledge.
Likewise, it would be an (1) ; ; 414 offence under section 4(1)(g) to be in possession of materials, still, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor.
Under section 4(2)(a), if a person is found to be in possession of materials or other things mentioned in the sub section, there is a presumption that he has committed an offence under section 4(1)(g), but it is open to him to account satisfactorily therefor.
The contention, therefore, that there is no reasonable relation between the presumption and the offence is, in our opinion, based on a misreading of the section.
Both the contentions urged on behalf of the appellants having failed, these appeals are dismissed.
Appeals dismissed.

Output:
The appellants were charged before the Presidency Magistrate for offences under the Madras Prohibition Act, 1937 and when the cases were taken up for trial they raised the contentions that SS.
4(2) and 28 to 32 of the Act are void under section 107(I) of the Government of India Act, 1935, because they are repugnant to the provisions of the , and the Code of Criminal Procedure, 1898, and also because they are repugnant to article 14 Of the Constitution of India.
On their application, the Magistrate referred the questions for the opinion of the High Court under section 432 ' of the Code of Criminal Procedure.
The High Court having answered the questions against the appellants they preferred the present appeal under article 136.
Held, that the Madras Prohibition Act, 1937, is both in form and in substance a law relating to intoxicating liquors and that the presumptions in section 4(2) and the provisions relating to search, seizure and arrest in SS. 28 to 32 of the Act have no operation apart from offences created by the Act and are wholly ancillary to the exercise of the legislative power under Entry 31 in List II, Sch. 7 of the Government of India Act, 1935.
Accordingly the Act is in its entirety a law within the exclusive competence of the Provincial Legislature and the question of repugnancy under section 107(1) of the Government of India Act, 1935, does not arise.
When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation.
To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions.
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence.
It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts 52 400 would severally fall, and by that process determine what portions thereof are intra vires, and what are not.
Subrahmanyan Chettiar vs Muthuswami Goundain, (1940) F.C.R. 188, Pyafulla Kumar Mukherjee vs The Bank of Commerce Ltd. (1940) L.R. 74 I.A. 23 and Lakhi Narayan Das vs The Province of Bihar , relied on.
Held further, that the presumptions in section 4(2) Of the Act do not off end the requirements as to equality before law or the equal protection of laws under article 14, as they have to be raised against all persons against whom the facts mentioned therein are established.
Even assuming that the law in America that a presumption of guilt would offend the requirement of the equal protection of laws unless there is a rational connection between the act proved and the ultimate fact presumed, could have application to the Indian Constitution, on a proper reading of the sections there is a reasonable relation between the presumption raised in section 4(2) and the offences under section 4(1).
William N. McFarland vs American Sugar Refining Company, ; 24I U.S. 79; , Albert 1.
Adams vs People of the State of New York, ; and Robert Hawes vs State of Georiya, 258 U.S.
I ; , referred to.


Input:
Appeal No. 151 of 1953.
Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 29th May, 1953, from the Judgment and Order dated the 4th May, 1953, of the Election Tribunal, Allahabad, in Election Petition No. 270 of 1952.
I C. K. Daphtary, Solicitor General for India (G. C. Mathur and C. P. Lal, with him) for the appellant.
Naunit Lal for respondents Nos.
I to 4. 1954.
May 20.
The Judgment of the Court was delivered by GHULAM HASAN J.
This appeal preferred under article 136 of the Constitution against the order, dated May 4, 1951, of the Election Tribunal, Allahabad, setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises two questions for consideration.
The first question is whether the nomination of one of the rival candidates, Dudh Nath, was improperly accepted by the Returning Officer and the second, whether the result of the election was thereby materially affected.
Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from Ghazipur (South East) Constituency No. 345, three withdrew their 511 candidature and the contest was confined to the remaining five.
The votes secured by these candidates were as follows 1.
Vashist Narain Sharma 12868 2.
Vireshwar Nath Rai 10996 3.
Mahadeo 3950 4.
Dudh Nath 1983 5.
Gulab Chand 1768 They were arrayed in the election petition as respondents Nos.
I to 5 respectively.
The first respondent having secured the highest number of votes was declared duly elected.
Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) "praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void.
The election was sought to be set aside on the grounds, inter alia, that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected.
The Tribunal found that respondent No. 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated ' (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency ghazipur (South West), that the Returning Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected.
Allegations of major and minor corrupt practices and non compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on those points.
Dudh Nath, respondent No. 4, is Rajput by caste.
His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania a town 10 or 12 miles away and he had been actually residing at village Baruin which is quite close to Zamania.
The person for whom Dudh Nath 'personated ' is Dudh Nath Kahar whose permanent house is at Jamuan, 512 but his father lives at Baruin.
Dudh Nath Kahar used to visit Baruin off and on but he was employed at Calcutta.
The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar.
He gave his father 's name as Shiv Deni alias Ram Krit.
Ram Krit is the name of Dudh Nath Kahar 's father.
The electoral roll (Exhibit K) of Gahmar gives Dudh Nath 's, father 's name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana Zamania Monza Baruin (Exhibit C) gives Dudh Nath 's father 's name as Ram Krit and his age as 31.
In the electoral roll of Jamuan Dudh Nath 's age is entered as 34 but in the supplementary list it is mentioned as 30.
When the nomination paper was filed on November 24, 1951, at 2 20 P.m.
it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath 's father 's name was Shivadeni and not Ram Krit but no proof was given in support of the objection and it was overruled on November 27.
This order was passed at 1 P.m. One of the candidates, who later withdrew, filed an application at 3 25 P.m. before the Returning Officer offering to substantiate the objection which the objector had not pressed.
This application was rejected on the ground that the nomination had already been declared as valid.
In point of fact no evidence was adduced.
This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under section 36(6) of the Representation of the People Act and as the result of the election according to the objector has been materially affected by the improper acceptance of this nomination, the Tribunal is bound to declare the election to be wholly void under section 100(1) (c) of the Act.
Mr. Daphtary on behalf of the.
appellant has argued before us with reference to the provisions of sections 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it.
There was, as he says, nothing improper in the action of the, Returning Officer, On the contrary, 513 it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was,not then forthcoming.
Such a case, it is argued, is not covered by section (1)(c) but by section 100(2)(c) in which case the election of the returned candidate is alone to be declared void, whereas in the former case the election is wholly void.
We do not propose to express any opinion upon this aspect of the matter, as in our view the appeal can be disposed of on the second question.
Section 33 of the Representation of the People Act, 1951, deals ' with the presentation of nomination paper and lays down the requirements for a valid nomination, On the date fixed for scrutiny of the nominations the Returning Officer is required to examine the nomination paper and decide all objections which may be made to any nomination, and after a summary enquiry.
if any, as he thinks necessary he is entitled to refuse nomination on certain grounds mentioned in sub section (2) of section 36.
Sub section (6) lays down that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
This sub section shows that where the nomination paper is accepted.
, no reasons are required to be given.
Section 100 gives the grounds for declaring an election to be void.
The material portion is as follows: (1) If the Tribunal is of opinion (a). . . . . . . . (b). . . . . . . . (c)that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
It is under this sub section that the election was sought to be set aside, 66 514 Before an election can be declared to be wholly void under section 100(1) (c), the Tribunal must find that "the result of the election has been materially affected.
" These words have been the subject of much controversy before the Election Tribunals and it is agreed that the opinions expressed have not always been uniform or consistent.
These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.
The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election.
It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector.
It would be useful to refer to the corresponding provision in the English Ballot Act, 1872, section 13 of which is as follows: " No election shall be declared invalid by reason of a non compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non compliance or mistake did not affect the result of the election." This section indicates that an election is not to be declared invalid if it appears to the Tribunal that non compliance with statutory rules or any mistake in the use of such forms did not affect the result of the election.
This throws the onus on the person who seeks to uphold the election.
The language of section 100(1)(c), however, clearly places a burden upon the objector to substantiate the objection that the result of the election has been materially affected.
On the contrary under the English Act the burden is placed upon the respondent to show the negative, viz., that the result of the decision has not been affected.
This view was expressed 515 in Rai Bahadur Surendra Narayan Sinha vs Amulyadhone Roy & others (1), by a Tribunal presided over by Mr. (later Mr. Justice) Roxburgh.
The contention advanced in that case was that the petitioner having established an irregularity it was the duty of the respondent to show that the result of the election had not been materially affected thereby.
The Tribunal referred to the provisions of section 13 of the Ballot Act and drew a distinction between that section and the provisions of paragraph 7(1) (c) of Corrupt Practices Order which was more or lesson the same lines as section 100(1) (c).
They held that the onus is differently placed by the two provisions.
While under the English Act the Tribunal hearing an election petition is enjoined not to interfere with an election if it appears to it that non compliance with the rules or mistake in the use of forms did not affect the result of the election, the provision of paragraph 7(1) (e) placed the burden on the petitioner.
The Tribunal recognized the difficulty of offering positive proof in such circumstances but expressed the view that they had to interpret and follow the rule as it stood.
In C. M. Karale vs Mr.
B. K. Dalvi etc.
(2), the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field.
In Babu Basu Sinha vs Babu Rajandhari Sinha etc.
it was emphasized that it is not enough for the petitioner to show that the result of the election might have been affected but he must show that it was actually affected thereby.
The case of Jagdish Singh vs Shri Rudra Deolal etc.
was one under section 100(1) (c) of the Representation of the People Act.
It was held that the question should always be decided on the basis of the material on the (1) Indian Election Cases by Sen and Poddar, page 188.
(2) Doabia 's Election Cases, Vol. 1 (P. I78).
(3) Indian Election Petitions (Vol.
III) by Shri jagat Narain, page So.
(4) Gazette of India (Extraordinary) October 13, 1953.
516 record and not on mere probabilities.
The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence, though it is difficult, that the result had been materially affected.
The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat.
In the other two cases it is contended that the result is materially affected.
So far as the third case is concerned it may be readily conceded that such would be the conclusion.
But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any 517 one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1) (c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the ' Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere, in his favour and would allow the election to stand.
In two cases [Lakhan Lal Mishra vs Tribeni Kumar etc.
(1) and Mandal Sumitra Devi vs Sri Surajnarain Singh etc.
(2) ], the Election Tribunal, Bhagalpur, had to consider the question of improper acceptance of the nomination paper.
They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence.
They laid down the following test: "If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected.
If, however, the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field.
It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different." In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted.
They held that the result was materially affected.
We are unable to accept the ' soundness of this view.
It seems to us that where the margin of votes is greater (1) Gazette of India (Extry.) Feby.
2, 1953.
(2) Gazette of India (Extry.) Feby.
26,1953.
518 than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.
The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh, but they went on to observe : "Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. 1, had Dudh Nath not been in the field.
" We are of opinion that the language of section 100(1)(c) is too clear too any speculation about possibilities.
The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has seen materially affected.
The number of wasted votes was 111.
It is impossible to accept the ipse dixit.
of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.
The question is one of fact and has to be proved by positive evidence.
If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand.
Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law.
How this state of things can be remedied is a matter entirely for the Legislature to consider.
The English Act to which we have referred presents no such conundrum and lays down a. perfectly sensible 519 criterion upon which the Tribunal can proceed to declare its opinion.
It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.
Mr. Nauinit Lal argued that the finding that the result of the election has been materially affected is a finding of fact which this Court should not interfere with in special appeal but there is no foundation for the so called finding of fact.
If the Tribunal could not be sure that the respondent No. I would get only 56 out of the wasted votes to give him an absolute majority, how could the Tribunal conjecture that all the wasted votes would go to the second best candidate.
The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility.
Their finding upon the matter is speculative and conjectural.
Mr. Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course.
That provision has no application to an appeal granted by special leave under article 136.
We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated.
The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of section 36(6) and that finding is correct.
We accordingly set aside the order of the Tribunal and uphold the election of the appellant.
The appellant will get his costs from :the respondents incurred here and in the proceedings before the Tribunal.
Order accordingly.

Output:
The words "the result of the election has been materially affected" in section 100 (1) (c) of the Representation of the People , indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.
Section 100 (1) (c) clearly places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper.
The said section is too clear for any.
speculation about possibilities and it lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected.
If an Election Tribunal misdirects itself in not comprehending the real question before it and proceeds merely on possibilities, speculation and conjecture, its order must be set aside.