Input:
iminal Appeals Nos.
176 to 178 of 1961.
Appeals by special leave from the judgment and order dated August 10, 1961, of the Patna High Court in Cr. A. No. 152 of 1961 and Death Reference No. 3 of 1961.
Sushil Kumar Jha, Subodh Kumar Jha and B. C. Prashad, for the appellants.
C. K. Daphtary, Solicitor General of India and section P. Verma, for the respondents.
434 1962.
April 26.
, J. This judgment will govern Criminal Appeals nos.
177 and 178 also.
All these three appeals arise out of the same trial.
The learned Additional Sessions Judge, Monghyr who conducted the trial convicted the appellant, Ramchandra Chaudhary who is appellant in Criminal Appeal No. 177 of 1961 for an offence under section 302 Indian Penal Code.
He also convicted Baleshwar Rai alias Nepali Master, appellant in this appeal and Jogendra Chaudhary, appellant in Criminal Appeal No. 178 of 1961 of an offence under section 302 read with section 34, Indian Penal Code.
He sentenced each of the three to death.
Their appeals were dismissed by the High Court of Patna, and sentences of death passed against them were confirmed by it.
They have come up before this Court by special leave.
The prosecution story is briefly as follows On March 17, 1959 at about 8.00 p.m. the chaukidars of the village Fateha had assembled,.
as usual, in the 'crime centre ' of the village.
Their names are Anandi Paswan, (deceased), Misri Paswan (P.W.2), Baleshwar Paswan (P.W.3) and Narain Paswan.
Anandi Paswan and Misri Paswan were lying on a chouki.
Anandi Paswan had a 'bhala ' and a muretha ' while Misri Paswan had a 'pharsa ' and a 'muretha '.
These weapons is well as the shirt of ,he deceased were kept on the chouki.
The other two choukidars were lying on the ground.
The crime centre is housed in the 'dalan ' of Tilak.
Chaudhary (P.W.6).
One other person, Srilal Chaudhary, (P.W. 7), the brother of Tilak Chaudhary, was also lying there on the khatia on the north east of the said 'dalan '.
In an adjacent room were P.W.11 Nathuni Chaudhary alias Durga Das and P.W.12 Ramchander Jha.
435 According to the prosecution a little before 9.00 p.m. someone from outside called out "Darogaji".
On hearing this, the deceased Anandi Paswan and Misri Paswan got up.
It was a moonlit night and they saw Ramchander Chaudhary, Jogendra Chaudhary and another person, who was later identi fied to be Nepali Master, standing closeby.
As soon as they went towards the appellants, Jogendra Chaudhary and Nepali Master caught the deceased while Ramchandra Chaudhary caught Misri Paswan.
Both Ramchandra Chaudhary and Jogendra Chau dhary had guns with them which were slung across their shoulders.
These three persons then took the deceased and Misri Paswan to the road to the East of the 'dalan ', running north to south, and proceeded southward.
Neither the deceased nor Misri Paswan raised any cry, apparently because they were threatened that if they did so, they would be shot.
When this party reached the place to the west of one Peare Sao 's house and to the east of the house of Rampratap Tanti (P.W. 5).
the deceased called for Rampratap 's help, and freeing himself from the clutches of his captors started running way westward.
, Upon this Ramehandra Chaudhary let go the hand of Misri Paswan and fired at the deceased.
Misri Paswan then ran into the house of Peare Sao and took shelter there.
While entering that house, he heard a second gun shot.
His presence in the house was detected by.
Ajo(P.W. 8), the wife.
of Peare Sao who forced him to leave the house.
Thereafter he came out into the lane and concealed himself behind the door.
After the moon had set and it became dark, he went to the house of Fakir Paswan (P.W. 4), which is to the east of the house of Peare Sao, and narrated the occurrence to him.
He mentioned Ramchandra and Jogendra as the two persons who has taken part in the incident.
In the early hours of the morning he went to the place where gun shots were fired, and found Anandi Paswan, chaukidar lying dead in a 436 ditch by the side of the road, face downwards.
He noticed that Anandi Paswan had received two gun shot wounds on his back.
Thereafter he went home and contacted the other chaukidar, Narain Paswan and Baleswar Paswan.
He placed them in charge of the dead body and then went to the police station along with Ramdeo, son of the deceased.
He lodged the first information report at the police station.
After recording it, the junior Sub Inspector of police commenced investigation and after completing it submitted a charge sheet against the three appellants on March 15, 1959.
It is the prosecution case that the appellants are "veteran criminals" and the chaukidars used to report about their movements and that this was the motive for the murder.
It was further said that the deceased had helped the Dalsingsarai police in arresting one Motia Mushar, who was the ploughman of the appellant Ramchandra, in a dacoity case.
All the appellants denied having participated in the incident.
The defence is that a false case has been concocted by the police.
The main evidence against the appellant is that of P.W. 2, Misri Paswan.
He has actually named Ramchandra Chaudhary and Jogendra Chandhary in the first information report.
Regarding the third appellant, he stated that 'he was unknown.
Ramchandra and Jogendra have been identified not only by Misri Paswan, but also by five other wit.
nesses, Narain Paswan, Rampratap Tanti, Srilal Chaudhary, Nathuni Chaudhary and Ramchander Jha.
All these, five persons had an opportunity to see the appellants because, it may be recalled, some of them were in the 'dalan ' and some in the adjacent room when the appellants came near there and one of them cried out "Darogaji".
Their evidence has been accepted 437 as true and adequate not only by the learned Sessions Judge who had an opportunity to see and hear the witnesses depose but also by the High Court.
Their evidence cannot be reappraised in their appeals by special leave.
The learned counsel, however, said that in so far as Jogendra Chaudhary is concerned, common intention to commit murder had not been established.
The existence of common intention has always to be inferred from facts.
Here it has been established that all the three appellants came together.
Two of them, Ramchandra and Jogendra had guns, with them.
The prosecution has established to the satisfaction of the learned Additional Sessions Judge and the High Court that as Anandi Paswan was giving information to the police about the movements of the appellants and had also taken the major part in getting one Motia Mushar arrested in a dacoity case, Ramchandra nursed a ' grievance against Anandi.
The inference, therefore, must be that he had come with the intention of taking revenge on Anandi Paswan by killing him and the other two appellants who accompanied him shared that intention.
As the High Court has pointed out, this is made clearer by the statement of Misri Paswan to the effect that Ramchandra said at the time of the incident that 'his (servant) Motia was taken away forcibly and then Jogendra asked the deceased sarcastically, "Where is your military today ?" In the circumstances, therefore, there can he no doubt that common intention to commit murder was established not only with respect to Jogendra but also with respect to Nepali Master who was all along with them.
On behalf of Nepali Master the learned counsel contended that he has been identified at the test identification parade by one witness only and that the other persons did not turn up for identification and, therefore, it is not legally permissible to base 438 the identification by only one person.
It is sufficient to say that even the evidence of a single witness can sustain the conviction of an accused person if the court which saw and heard him depose regards him as a witness of truth.
However, in this case, Nepali Master was identified not by one witness only but by two witnesses (P. W. 7) Srilal Choudhary and (P. W. 9) Dukhi Mahto.
It was said that Srilal is an old man of 75 and has a weak eyesight and therefore his evidence should be kept out of account.
He is evidence has been believed by the learned Sessions Judge as well as by the High Court and we cannot reassess it.
It was contended before the High Court and is also contended before us that as the test identification was held long time after his arrest, the evidence of these two witnesses could not be believed.
This circumstance was also considered by the High Court and it observed : "The contention is attractive; but, in view of exhibit 6, it is difficult to accept the same".
Exhibit 6 is an anonymous letter written to Senior.
Sub Inspector, Kashi Nath (P. W. 22), of which the only portion which has been admitted in evidence reads thus: "The rascal Anandia Choukidar spoiled the life of that poor Mushar by instigating the section 1 of Police of Dalsingsarai and subsequently he also spied against us for nothing".
This document along with ex. 3, dated June 9, 1959, which is admittedly in the handwriting of Nepali Master, was sent to the Government handwriting expert.
Both the documents were examined by him.
In his evidence he has stated.
"The Board of Experts consisting of myself, Chatterjee and Srivastava examined 439 these independently and our unanimous opinion was that exhibit 3, tallied with disputed writings (Ext.
" This being so, the admission contained in Ext.
6 as to the motive is clearly admissible under section 21 of the Evidence Act.
The High Court was, therefore, right in holding that Ext.
6 afforded corroboration to the evidence of (P. W. 7) Srilal Chaudhary and (P. W. 9) Dukhi Mahto.
It is then contended that exhibit 6 is hit by s.162 of the Criminal Procedure Code because it was received by the Sub Inspector during the course of the investigation.
Section 162 of the Criminal Procedure Code only bars proof of statements made to an investigating officer during the course of investigation.
Section 162 does not say that every statement made during the period of investigation is barred from being proved in evidence.
For a statement to come within the purview of section 162, it must not merely be made during the period of investigation but also in the course of investigation.
The two things, that is, "the period of investigation" and " 'course of investigation ' are not synonymous.
Section 162 is aimed at statements recorded by a police officer while investigating into an offence.
This is clear from the opening words section 162.
They speak only of statements made to a police officer during the course of investigation.
This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigating officer and not one which is de hors the enquiry.
A communication like Ext.
6 will not fall within the ambit of such statements.
In this view we hold that the document in question is not hit by section 162 of the Criminal Procedure Code and the High Court was right in admitting it in evidence.
There is no substance in the appeals and they are, therefore, dismissed.
Appeal dismissed.

Output:
Section 162 of the Code of Criminal Procedure only bare proof of statement made to an investigating officer during the course of investigation.
It does not say that every statement made during the period of investigation is barred from being proved in evidence.
For a statement to come within the purview of section 162, it must not merely be made during the period of investigation but also in the course of investigation.
The two things, "the period of investigation" and "Course of investigation" are not synonymous.
Section 162 is aimed at statements recorded by a Police Officer while investigating into an offence.
This is clear from the opening words section 162.
They speak only of statement made to a police officer during the course of investigation.
This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigating office and not one which is de hors the enquiry.


Input:
Criminal Appeal No. 361 of 1987.
From the Judgment and Order dated 26.3.
1986 of the Karnataka High Court in Crl.
P.C. No. 69 of 1986.
P.R. Ramasesh, Adv.
for the Appellant.
The Judgment of the Court was delivered by SEN, J.
The question involved in this appeal by special leave is whether the High Court of Karnataka was justified in directing the Sessions Judge, Bidar to proceed with the trial of Sessions Case No. 23 of 1984 insofar as it relates to the respondent Narsa Reddy and one Vaijinath, accused No. 2, arraigned for having committed alleged offences punisha ble under sections 302 and 201 both read with section 34 of the Indian Penal Code, 1860 and sections 3 and 4 of the .
While issuing notice, we were not satisfied about the legality and propriety of the order passed by the learned Single Judge which had the effect of splitting up of the trial although the prosecution case against the accused arose out of the same incident and the evidence to be led by the prosecution against them was more or less common.
It also seemed to us that if the order passed by the learned Single Judge were to be implemented, the learned Sessions Judge would be constrained to proceed against the respondent and accused No. 2 Vaijinath and thereby the very object of directing de novo trial would be frustrated.
At the hearing, no one appeared for the respondent and therefore we did not have the benefit of hearing his counsel.
The prosecution case, in brief, is as follows.
On Febru ary 14, 1984, at about 7 p.m., the respondent Narsa Reddy pushed his wife the deceased Jagdamba into a well situate in his garden to cause her death and he then with the help of accused No. 2, Vaijinath pulled her out of 970 the well and brought her to the house of the respondent where he assaulted her with a stick and thereafter strangu lated her to death.
After the committal, the Sessions case was posted for evidence and evidence of four witnesses was recorded.
The testimony of PW 3 Sangareddy and PW 4 Ran gareddy revealed the involvement of Head Constable Govinda Rao and Police Constable John, who were cited as prosecution witnesses, in the disposal of the dead body of the deceased, that they had also committed the offence under section 20 1 read with section 34 of the Indian Penal Code along with the other two accused.
An application was accordingly filed by the learned Public Prosecutor under section 319(4) of the Code of Criminal Procedure for impleading Head Constable Govinda Rao and Police Constable John as accused Nos. 3 and 4 in the Ses sions case.
On the said application, the learned Sessions Judge by his order dated August 22, 1985 ordered that Head Constable Govinda Rao and Police Constable John be impleaded as accused Nos. 3 and 4 for the offence under section 201 read with section 34 of the Indian Penal Code.
He also ordered that a de novo trial would be held against the accused persons after reframing charges.
Before the trial could proceed further, the newly impleaded accused Nos. 3 and 4 filed an application before the learned Sessions Judge contending that they could not be impleaded as accused and that since they were public servants, sanction under section 197 of the Code was required for their prosecution.
The application of accused Nos. 3 and 4 was rejected by the learned Sessions Judge on October 28, 1985.
Thereupon, Head Constable Govinda Rao and Police Constable John, impleaded as accused Nos. 3 and 4, preferred a revision being Criminal Revision No. 886 of 1985 before the High Court.
The High Court has admitted the revision and granted stay of proceedings in the Sessions case.
In the meanwhile, the respondent Narsa Reddy who had been arrayed as accused No. 1 made an application for bail under section 439(1) before the learned Sessions Judge contending that in view of the stay order granted by the High Court in Criminal Revision No. 886 of 1985, the trial of the Sessions case was unduly protracted and hence he should be released on bail, apart from the ground that no prima facie case has been made out against him.
The learned Sessions Judge by his order dated September 25, 1985 rejected the application on the ground that earlier similar applications for bail were rejected both by him as well as the High Court and it could not be said that the trial was protracted, merely because of stay granted by the High Court, observing that the case was likely to be con cluded at an early date.
Aggrieved, the respondent preferred a revision before the High Court.
The learned Single Judge by his order 971 dated March 28, 1985 rejected the application for bail under section 439( 1 ) of the Code, vacated the stay granted by the High Court in Criminal Revision No. 886 of 1985 insofar as the trial against the respondent and the aforesaid Vaiji nath, accused No. 2 was concerned and directed the learned Sessions Judge to proceed with the trial against them as early as possible.
Hence this appeal by special leave.
We have no manner of doubt that the direction made by the learned Single Judge presumably exercising the inherent powers of the High Court under section 482 of the Code of Crimi nal Procedure was wholly unwarranted.
It is somewhat strange that the learned Single Judge should have made a direction at all requiring the learned Sessions Judge to proceed with the trial as against the respondent and accused No. 2, Vaijinath merely because there was stay granted by the High Court in revision preferred by the co accused Head Constable Govinda Rao and Police Constable John, accused Nos. 3 and 4 against the order passed by the learned Sessions Judge dated October 28, 1985 rejecting the objection as to the validity of trial for want of sanction.
If he felt that the grant of stay would prejudicially affect the respondent and accused No. 2, Vaijinath and subject them to a protracted trial, the proper course for the learned Single Judge was to have heard and disposed of the Criminal Revision No. 886 of 1985 rather than make a direction of this kind which would, in fact, result in splitting up of the trial which is apt to cause miscarriage of justice, besides serious prejudice to the prosecution.
From the nature of the prosecution case, it is quite apparent that the evidence to be led by the prosecu tion would be more or less common as it relates to the same occurrence.
It could not be said that merely because the proceedings before the learned Sessions Judge were held up due to stay granted by the High Court in that revision, the learned Single Judge could have taken recourse to the inher ent powers of the High Court under section 482 of the Code, or that it was necessary to do so either to prevent abuse of the process of Court or otherwise to secure ends of justice.
Any further delay in the trial could be prevented by taking up the revision for hearing.
In the result, the appeal succeeds and is allowed.
The order passed by the High Court is set aside and the High Court is directed to hear and dispose of Criminal Revision No. 886 of 1985 as early as possible.
In the meanwhile, the proceedings in Sessions Case No. 23 of 1984 before the learned Sessions Judge shall remain stayed till the disposal of the revision.
H.L.C. Appeal allowed.

Output:
While the respondent, alongwith another person, was being tried under sections 302 and 201 read with section 34 I.P.C., etc., for causing the death of his wife, the evidence re corded revealed the involvement of two police officials in the disposal of the dead body, and, they were also charged under section 201 read with section 34 I.P.C. and the trial was or dered to be held de novo against all the four accused.
However, the trial could not proceed as the two police officials whose plea that, being public servants, it was necessary to obtain a sanction for prosecution under section 197 Cr.
P.C. for impleading them as accused, was rejected, approached the High Court in Revision and obtained stay of the trial.
The respondent applied for bail under section 439(1), Cr.
P.C. contending that the trial was unduly protracted, and on its rejection, approached the High Court in Revision.
A Single Judge of the High Court rejected the application for bail, vacated the stay granted by the High Court earlier insofar as the respondent and the other person who was originally accused with him was concerned and directed the Sessions Judge to proceed with the trial as against them only.
Allowing the appeal, and, directing continuance of stay of the trial till the disposal of the Revision filed by the two police officials, HELD: It is somewhat strange that the learned Single Judge should have made a direction at all requiring the learned Sessions Judge to proceed with the trial as against the respondent and the other accused merely because there was stay granted by the High Court in the Revision preferred by the two police officials.
If he felt that the stay would prejudicially affect the respondent and the other accused and subject them to a protracted trial, the proper course was to have heard and disposed of the Revision filed by the two police officials rather than make a direction of this kind which would, result in the splitting up of the trial and is apt to cause miscarriage of justice, besides serious pre 969 judice to the prosecution.
From the nature of the prosecu tion case, it is quite apparent that the evidence to be led by the prosecution would be more or less common as it re lates to the same occurrence.
It could not be said that merely because the proceedings were held up due to stay granted by the High Court the learned Single Judge could have taken recourse to the inherent powers of the High Court under section 482, Cr. P.C., or that it was necessary to do so either to prevent abuse of the process of Court or otherwise to secure ends of justice.
[971C F]


Input:
vil Appeal No. 2 104 of 1989.
WITH C.M.P. No. 26956 of 1988.
From the Judgment and Order dated 22.4.1988 of the Punjab and Haryana High Court in C.R. No. 2875 of 1979.
Ashok K. Sen and G.K. Bansal for the Appellant.
S.M. Ashri and C.S. Ashri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
This appeal is from the judgment and order of the High Court of Punjab and Haryana dated 22nd April, 1988.
The dispute was between the two brothers.
Both the parties appointed one Shri Ajit Singh as the Arbitrator on 7th March, 1974 for settlement of the dispute about 2 1/2 Killas of land situated near Chandni Bagh, Panipat in the State of Haryana.
The said land stood in the name of the appellant.
According to the respondent, Ram Lal, it was benami in the name of the appellant.
That was the dispute.
The arbitrator gave his award on 22nd May, 1974 and moved an application on 23rd September, 1974 before the Court of Sub Judge IInd Class, Panipat, for making the award the rule of the Court.
The application was registered in the said Court and notice was issued to the appellant herein on 7th November, 1974.
Objections were filed by the appellant taking various grounds.
It was contended that the appellant had informed the sole arbitrator through registered notice and by a telegraphic notice that he had no faith in the said arbitra tor and had thus repudiated his authority to proceed with the arbitration proceedings.
It was also contended that the award was lop sided, perverse, and totally unjust and against all cannons of justice and fair play.
It was alleged that the arbitrator had acted in a partisan manner.
He never heard the claim of the appellant and never 254 called upon him to substantiate his claim and had acted as an agent of the respondent.
It was, therefore, prayed by the appellant that the award be set aside.
It may be mentioned that no point was raised that the award was bad and unforce able because it was not properly stamped nor any plea was taken that the award was an unregistered one as such could not be made the rule of the court.
Several issues were framed.
No issue was, however, framed on the ground that the award was bad because it was not properly stamped or that it was not registered.
The appellant, who was respondent No. 2 in the said proceedings before the learned Trial Judge, gave his version about the repudiation of the authority.
The learned Trial Judge had, however, held that the appellant had failed to prove that he had repudiated the authority of the arbitrator to enter upon the arbitration through registered notice or otherwise before the arbitrator announced his award.
It was further held that the award of the arbitrator was not liable to be set aside on the grounds taken.
The objections were treated as objections under section 33 of the and it was filed within the limitation period.
In that view of the matter, the learned Sub Judge IInd Class, Panipat by his order dated 28th July, 1977 dismissed the objections under Section 14 of the and made the said award the rule of the court.
Aggrieved thereby, the appellant went up in first appeal before the Additional District Judge, Karnal.
The learned Additional District Judge, while dealing with the conten tions of the appellant, held that the application was prop erly filed.
A point was taken before the first Appellate Court that the award was on an unstamped paper and as such could not be made the rule of the court.
The learned District Judge held that the award has not been properly stamped and as such could not be made the rule of the court.
It was also contended before the learned District Judge that the award was unregistered and as such it could not be made the rule of the court as it affected immovable property of more than Rs. 100.
The learned Dis trict Judge after analysing the provisions of section 17 of the (hereinafter referred as to 'the Act ') came to the conclusion that the award declared right in immovable property and since it was unregistered, it could not be made the rule of the court.
The learned Dis trict Judge, however, also came to the conclusion that the authority of the arbitrator had been repudiated.
This ground no longer survives.
In the aforesaid view of the matter, the learned District Judge allowed the appeal on the ground that the 255 award was unregistered and unstamped and as such could not be made the rule of the court and set aside the order of the learned Trial Judge.
There was a second appeal to the High Court.
The High Court upheld the award.
The High Court noted that the neces sary stamp was purchased on 8th August, 1974 before the award was filed on the 9th September, 1974.
And that being so, it could not be argued successfully that the award was unstamped.
In that view of the matter, the High Court held that the learned District Judge was in error in allowing the stamp objection to be taken.
As regards the registration, it was held by the High Court that the award did not create any right as such in immovable property; it only admitted the already existing rights between the parties and hence it did not require any registration.
In that view of the matter, the High Court was of the opinion that the first appellate Court was wrong.
The High Court was further of the view that no right was created in favour of Shri Ram Lal, the respondent herein when he was declared the owner.
Both Lachhman Das, the appellant and Ram Lal, the respondent, had claimed their ownership and, ac cording to the High Court, they had the existing rights.
The award only made, according to the High Court, it clear that the ownership would vest in one of the brothers, Ram Lal.
In the aforesaid view of the matter, the High Court was of the view that it did not require registration.
The High Court allowed the appeal and directed the restoration of the order of the learned trial court and the award be made the rule of the court.
Aggrieved thereby, the appellant has come up to this Court.
The question is Was the High Court right in the view it took? Mr. A.K. Sen, learned counsel for the appellant contend ed that the High Court was clearly in error in the facts and circumstances of this case to have made this award the rule of the court and to have looked upon this award which at all relevant and material time was unregistered.
It may be mentioned that when this matter came up before this Court on the 5th December, 1988, the matter was adjourned for two months and it was recorded "In the meantime, the parties may take steps".
Thereafter, it appears that the award was filed for registration on 19th December, 1988 before the Sub Registrar, Panipat and was registered actually on 3rd Febru ary, 1989.
Mr. Sen, contended that the registration of the award subsequently made in the manner indicated hereinbefore did not validate it retrospectively in 256 view of the relevant provisions of the Act.
The award being an unregistered one could not have been looked into by the High Court.
Mr. Sen tried to urge before us that the award was got registered by misrepresentation of the order of this Court dated 5th December, 1988.
This Court did not, on 5th December, 1988, direct that the registration could be made.
All that this Court observed was that the parties might take steps.
It may be mentioned that on or about 18th December, 1988, it appears at page 75 of the present paper book that an application was made for registration of award which was said to have been applied by Shri Ajit Singh, S/o Shri Beer Singh.
In the said letter, it was mentioned that Mr. justice J.V. Gupta of the Hon 'ble High Court of Punjab and Haryana had held in favour of the said writer and it was further stated that on the 5th December, 1988, this Court dismissed the case of Lachhman Singh, the appellant herein, copy whereof was enclosed.
The award was filed for registration on 18th December, 1988.
The statements contained in the letter were incorrect and misleading inasmuch as this Court did not dismiss the case of the appellant on 5th December, 1988.
On the other hand, this Court, as mentioned hereinbe fore on the 5th December, 1988, merely observed that the appellant would be at liberty to do what was needful.
Mr. Ashri, learned counsel for the respondent, submitted that the registration was done in view of provisions of sections 23 and 25 of the Act.
Mr. Sen, on the other hand, submitted before us that this was wholly irregular to have obtained registration by misleading the Sub Registrar and this was of no effect.
Furthermore, in any event, according to Mr. Sen, the registration having been beyond the period of four months as enjoined by the relevant provisions was wholly bad.
The first question that requires consideration in the instant case is whether the Court could have looked into the award for the purpose of pronouncing judgment upon the award.
In order to deal with this question, it is necessary to refer to Section 17 of the Act.
Section 17 deals with documents of which registration is compulsory.
Section 17 of the said Act mentions the documents which must be regis tered.
Section 17(1)(e), inter alia, provides: "non testamentary instruments transferring or assigning any decree or order of a Court or any order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extin guish, whether in present or in future, any right, title or interest, 257 whether in present or in future, any right, title or interest,, whether vested or contin gent, of the value of one hundred rupees and upwards, to or in immovable property." Section 23 of the said Act provides as under: "Subject to the provisions contained in sec tions 24, 25 and 26, no document other than will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final." Section 25 of the said Act provides as under: "If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not present ed for registration till after the expiration of the time hereinbefore presented in that be half, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration." Section 49 of the said Act provides as under: "No document required by section 17 or by any provision of the , to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transac tion affecting such property or conferring such power, unless it has been registered." 258 The proviso to this section deals with a suit for specific performance with which we are not concerned.
Shri Ashri contended that the document in question was one which did not require registration.
He submitted that the High Court was right in the view it took.
He further submitted that the property in dispute was in the joint name of the appellant and the respondent.
The dispute was whether the half of the property held by the appellant was benami for the respondent or a declaration to that effect could be made by the arbitrator.
Mr. Ashri further submitted that it was the case of the appellant that he was the owner of the property in question.
The award in question recites that Shri Ajit Singh had been appointed as arbitrator by an agreement dated 7th March, 1974 by both the parties.
The award further recites that he was appointed arbitrator to adjudicate through arbitration "their disputes regarding property against each other".
The arbitrator thereafter recites the steps taken and the proceedings before him.
It was further stated that the appellant did not orally reply to the contentions of the respondent nor did he submit his claims in writing.
In these circumstances, the award was bad.
The award stated, inter alia, "Land of Tibbi comprising of rect.
No. 13 Kila No. 23 (3 11), 26(1 11), 16(5 15), 17(5 14), 25(4 4), 23/27 and 26/1 situated in Mauz Ugra Kheri, near Chandni Bagh, which is in the joint name of Shri Ram Lal, Party No. 1 and Shri Lachhman Dass, Party No. 2.
The half ownership of Shri Lachhman Dass shall be now owned by Shri Ram Lal in addition to his 1/2 share owned by him in these lands.
" The award gave certain other directions.
Regarding other claims, it was held that lands were allotted in the names of both the brothers and in that context Rs. 16,000 were spent by the respondent from his own sources.
The arbitrator stated that he admitted these expenses at Rs. 10,000 and awarded that an amount of Rs.5,000 equal to 1/2 share should be paid by the appellant to the respondent.
The other claims were also decided by the award with which it is not neces sary to deal in the present appeal.
The question is does this award purport or operate to create, declare or assign, limit or extinguish any right, title or interest in immova ble property? Shri Ashri submitted that as his client was the real owner and as respondent No. 1 was mere benamdar, and the arbitrator merely declared the true position and the award did not as such create, declare or assign any fight, title or interest in any immovable property by the aforesaid clause in the award.
259 The Division Bench of the Madras High Court in Ramaswamy Ayyar & Anr.
vs Thirupathi Naik, ILR XXVII Madras p. 43 has observed that the criterion for purposes of registration under the Registration Act, 1877 (III of 1877), which was in the same term as the provision of the present Act, was what was expressed on the face of the document, not what inci dents might be annexed by custom to a grant of the kind.
Therefore, we have to see not what the document intends to convey really, but what it purports to convey.
In other words, it is necessary.
to examine not so much what it intends to do but what it purports to do.
The real purpose of registration is to secure that every person dealing with the property, where such document re quires registration, may rely with confidence upon state ments contained in the register as a full and complete account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be construed strictly.
Therefore, unless a document is clearly brought within the provisions of the section, its non registration would be no bar to its being admitted in evidence.
On a proper construction of the award, it does appear to us that the award did create, declare or assign a right, title and interest in the immovable property.
The award declares that 1/2 share of the ownership of Shri Lachhman Dass shall "be now owned by Shri Ram Lal, the respondent in addition to his 1/2 share owned in those lands".
Therefore, the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause.
It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre existing right but creation of new right of the parties.
It is significant to bear in mind that the section enjoins registration wher ever the award "purports or operates to create, declare, assign, limit or extinguish" whether in present or in future any right, title or interest of the value of Rs. 100 or upwards in immovable property.
Shri Ashri tried to submit that while reading the award reasonably and fairly, it must be construed that there was no creation or declaration of any new right in the immovable property.
What was done was only, according to Shri Ashri, a declaration of existing right, that is to say, Ram Lal 's full ownership of the property in question.
The section, however, enjoins registration in respect of any document, which purports not which intends to create a right in immov able property or declare a right in immovable property.
It is not a question of declaration of an existing right.
It is by this award that a new right was 260 being created in favour of Ram Lal, the respondent herein.
In that view of the matter, in our opinion, it cannot be contended that the award did not require registration.
This question was considered by this Court in Satish Kumar & Ors.
vs Surinder Kumar & Ors.
, There an arbi trator appointed by the appellants and the respondents partitioned their immovable property exceeding the value of Rs. 100.
The arbitrator applied under section 14 of the to the Court for making the award a rule of the Court.
On the question whether the award was admissible in evidence as it was not registered it was held that the award required registration.
It was further held by Justice Sikri, as the Chief Justice then was, and Justice Bachawat that all claims which were the subject matter of a reference to arbitration merged in the award which was pronounced in the proceedings before the arbitrator and after an award had been pronounced, the rights and liabili ties of the parties in respect of the said claims could be determined only on the basis of the said award.
After an award was pronounced, no action could be started on the original claim which had been the subject matter of the reference.
The position under the registration Act is in no way different from what it was before the Act came into force.
Therefore, the conferment of exclusive jurisdiction on a court under the did not make an award any less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure.
It was further held that the filing of an unregistered award under section 49 of the Act was not prohibited.
What was prohibit ed was that it could not be taken into evidence so as to affect immovable property falling under section 17 of the Act.
It was further reiterated that it could not be said that the registration did not in any manner add to its efficacy or give it added competence.
If an award affected immovable property above the value of Rs. 100, its registration would not rid of the disability created by section 49 of the Act.
The award in question was not a mere waste paper but had some legal effect and it plainly purported to affect or affected property within the meaning of section 17(1)(b) of the Act.
Justice Hegde gave a separate but concurring judgment.
He observed that it was one thing to say that a right was not created, it was an entirely different thing to say that the right created could not be enforced without further steps.
An award did create rights in that property but those rights could not be enforced until the award was made a decree of the Court.
For the purpose of section 17(1)(b) of the Act, all that had to be seen was whether the award in question pur ported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property.
261 It was incorrect to state that an award which could not be enforced was not an award and the same did not create any right in the property which was the subject matter of the award.
An award whether registered or unregistered, accord ing to Justice Hegde, does create rights but those rights could not be enforced until the award is made the decree of the court.
The learned Judge made it clear that for the purpose of section 17(1)(b) of the Act, all that had to be seen was whether the award in question purported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of Rs. 100 and upwards in the immovable property.
If it does, it is compulsorily registerable.
A document might validly create rights but those rights might not be enforced for various reasons.
The Court found that the award in that case created right in immovable property and it required registration.
This Court in Ratan Lal Sharma vs Purshottam Harit, ; had to consider the question of registra tion and the effect of non registration of an award.
The appellant and the respondent therein had set up a partner ship business in the year 1962.
The parties, however, there after fell out.
At the time the disputes arose, the running business had a factory and various movable and immovable properties.
On August 22, 1963, by agreement in writing, the parties referred "the disputes of our concern" to the arbi tration of two persons and gave "the arbirators full author ity to decide their dispute".
The arbitrators gave their award on September 10, 1963.
The award made an exclusive allotment of the partnership assets, including the factory, and liabilities to the appellant.
He was "absolutely enti tled to the same" in consideration of a sum of Rs. 17,000 plus half the amount of the realisable debts of the business to the respondent and of the appellants renouncement of the right to share in amounts already received by the respond ent.
The award, stipulated that the appellant should not run the factory unless he had paid the awarded consideration to the respondent.
The arbitrators filed the award in the High Court on November 8, 1963.
On September 10, 1964, the re spondent filed an application for determining the validity of the agreement and for setting aside the award.
On May 27, 1966, a learned Single Judge of the High Court dismissed the application as time barred.
But he declined the request of the appellant to proceed to pronounce judgment according to the award because in his view; (i) the award was void for uncertainty and (ii) the award, which created rights in favour of the appellant over immovable property worth over Rs. 100 required registration and was unregistered.
From this part of the order, the 262 appellant filed an appeal which was dismissed as not main tainable by the Division Bench of the High Court.
The appel lant preferred an appeal by special leave to this Court against the decision of the Single Judge declining to pro nounce judgment in accordance with the award.
He also filed a special leave petition against the judgment of the Divi sion Bench.
In the appeal before this Court, the appellant contended that the award was not void for uncertainty and that the award sought to assign the respondent 's share in the partnership to the appellant and so did not require registration and that under sec.
17 of the , the Court was bound to pronounce judgment in accordance with the award after it had dismissed the respondent 's applica tion for setting it aside.
It was held that the share of a partner in the assets of the partnership, which had also immovable properties, was movable property and the assign ment of the share did not require registration under section 17 of the Act.
But the award in the instant case, this Court observed, did not seek to assign the share of the respondent to the appellant, either in express words or by necessary implication.
The award expressly makes an exclusive allot ment of the partnership assets including the factory and liabilities to the appellant.
It went further and made him "absolutely entitled to the same", in consideration of a sum of Rs. 17,000 plus half of the amount of Rs. 1924.88 P. to the respondent and the appellant 's renouncement of the right to share in the amounts already received by the respondent.
In express words the award purported to create rights in immovable property worth above Rs. 100 in favour of the appellant.
It would require accordingly registration under section 17 of the Act.
As the award was unregistered, the court could not look into it.
The award being inadmissible in evidence for want of registration the Court could not pro nounce judgment in accordance with it.
Section 17 of the presupposes an award which could be validly looked into by the Court.
The appellant could not success fully invoke section 17.
The award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immovable property.
In the instant case also, it appears to us that the award affects immovable property over Rs. I00 and as such was required to be registered.
Shri Ashn, however, contended that the fact that the award was unregistered had not been taken before the learned trial judge.
Indeed, this was not urged within 30 days and the time for filing of application for setting aside an award under section 30 of the Arbitra tion Act, was 30 days and as such this not having been taken, the appellant was not entitled to take this point at a later stage.
1t is.
true that in the application for making the award a rule of the court before 263 the learned trial judge this point had not been taken.
Section 33 of the provides that: "Any party to an arbitration agreement or of any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.
" It has been held by the majority of three learned Judges in a full Bench decision of the Calcutta High Court in the case of Saha & Co. vs Ishar Singh Kirpal Singh, AIR 1956 Cal. 321 that under the Indian , there was no distinction between an application for setting aside of an award and an application for adjudgment of the award as a nullity and all applications must be under section 30 within the time stipulated for that application.
The existence of an award and validity of the reference both have to be chal lenged in the same manner.
But the next question that arises, is, whether an unregistered award can be set aside or not.
It was submitted by Mr. Ashri that the award was otherwise invalid, under section 30(c) of the .
It is, however, not necessary for the present purpose to decide this question.
It is sufficient to emphasise that an award affecting immovable property of the value of more than Rs. 100 cannot be looked into by the Court for pronouncement upon the award on the application under section 14 of the Arbi tration Act unless the award is registered.
section 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and made it a rule of the court.
But in order to do so, the court must be competent to look into the award.
section 49 of the Act enjoins that the award cannot be received as evidence of any trans action affecting immovable property or confering power to adopt, unless it is registered.
In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award.
Mr. Ashri, however, relied on a decision of the learned Single Judge of the Calcutta High Court, in which one of us (Sabyasachi Mukharji, J) had occasion to deal with the question whether an application for determination of the validity of an award could be entertained after the lapse of 30 days time.
It was held that an application challenging an award on the ground of non registration must be by procedure under section 30 of the and the party not apply ing with in the time under section 30 was estopped from agitating the 264 question subsequently.
The relevant case law was discussed and it was held that where an adjudication was necessary as to whether registration was required or not and it was emphasised that in the instant case also an adjudication was necessary because the High Court had held that registration was not necessary, while the appellant is contending and as we are inclined to agree that registration was necessary, in such a case, it must be done by means of an application within 30 days.
It is true that where an application is made for determining the validity and effect of an award in such a case, as was the case in the application made to the Calcutta High Court for determination and admissibility of the award and for a declaration that the award was void, it is necessary that the application should be made within 30 days.
But that problem does not arise here because here under section 14 of the , a judgment is sought in favour of the award.
In order to pronounce that judgment, the award has to be looked into.
The court cannot do it when the award affects the immovable property or purports to affect the immovable property of the value of more than Rs. 100 and it is not registered and as such it cannot be looked into.
In that view of the matter, we are of the opinion that the High Court was in error in the order under appeal.
It may be appropriate in this connection to refer to the observations of Justice Vivian Bose, in the Gangaprashad vs Mt. Banaspati, AIR 1933 Nagpur 132.
In that decision Justice Bose speaking for the Nagpur High Court observed at page 134 of the report, that it was argued before him that even though it was not possible for the plaintiff to challenge the fact that there was a reference to arbitration, and an award, and that there was no misconduct, etc., he could still question its validity on the ground that it had not been registered.
But this question was barred by the rule of constructive res judicata.
He referred to Mulla that if an application was made to the court to file an unregistered award which requires registration, then the court must reject it.
It followed that this was one of the grounds which could be urged against the filing of an award.
If it was not urged, and the award was filed, then that question was as much barred in a subsequent suit as the others.
In this case, however, this point that the award is not registered and as such it could not be filed, though not taken subsequently in argument before the trial Judge, it was urged before the First Appellate Court and it was held in favour of the present respondent.
This is an appeal by special leave in subsequent decision from that decision where the filing of the award is being challenged on the ground that it 265 is unregistered.
Therefore, in our opinion, though it may not be possible to take the point that the award is bad because it is unregistered as such it could not be taken into consideration in a proceeding under section 30 or 33 of the , but can be taken in the proceedings under section 14 of the when the award is sought to be filed in the court and the court is called upon to pass a decree in accordance with the award.
As the court, as mentioned hereinbefore, could not look into the award, there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the court.
Mr. Ashri, however, contended that the award had been subsequently registered and unless the registration was set aside the award did not suffer from any defect.
We have, however, to examine whether the High Court was fight in accepting the award and in pronouncing the judgment in terms of the award.
At the relevant time, the award was not regis tered.
If that is the position, then the subsequent regis tration of the award whether in confirmity with sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant.
It is not necessary in the view that we have taken to go into the question whether the appellant was right in getting this document registered in the manner it has been done by making certain representation, which was not correct, to the Sub Registrar.
Learned Counsel for the respondent drew our attention to certain observations of this court in Raj Kumar Dey and Others vs Tarapada Dey and Others, ; where registration was permitted by the Court after the lapse of four months as enjoined by section 23 of the Act.
But the facts and the circumstances and the grounds upon which registra tion was permitted, were entirely different from the present case.
In the premises, the observations made in the said decision are not relevant or germane for the present contro versy.
In the aforesaid view of the matter, the decision of the High Court cannot be sustained.
The appeal is, therefore, allowed.
The judgment and/or order of the High Court are set aside.
But in the facts and circumstances of the case, the parties will pay and bear their own costs.
R.P.D. Appeal allowed.

Output:
By an agreement dated 7 March, 1974, both the appellant and the respondent Ram Lal appointed an arbitrator to adju dicate through arbitration their disputes about a plot of land.
The arbitrator gave his award on 22 May 1974 stating, inter alia, that the land in dispute was in the joint name of the appellant and respondent Ram Lal, and that the half ownership of the appellant shall now be owned by Shri Ram Lal in addition to his 1/2 share owned by him in those lands.
The arbitrator filed an application before Sub Judge, II Class for making the award the rule of the Court.
The appel lant filed objections under section 33 of the , to set aside the award on various grounds but no point was raised that the award was unenforceable because it was not properly stamped and not registered.
The trial court dismissed all the objections taken under section 14 of the and made the award the rule of the Court.
The District Judge, in the appeal filed by the appel lant, came to the conclusion that the award declared a right in immovable property and since it was unregistered and unstamped it could not be made the rule of the Court.
The High Court, however, allowed the appeal filed by the res 251 pondent on the ground that the award did not create any right in immovable property, and that it only admitted the already existing rights between the parties and hence it did not require any registration.
The appellant appealed by special leave to this Court.
During the pendency of the said appeal the award was submitted for registration on 19 December, 1988 and was registered on 3 February, 1989.
On behalf of appellant it was argued that the High Court was wrong in looking into an unregistered award, and that its subsequent registration was obtained by misrepresenta tion and misleading the authorities did not validate it retrospectively and that the registration having been beyond the period of four months was wholly bad.
On behalf of the respondent the appeal was contested by contending that the award did not require registration as it did not create, declare or assign any new right in the immovable property, but that it merely declared the existing right of ownership of the respondent, that the appellant was barred from taking the plea of its being unregistered at a later stage as it had not been taken by him before the trial court.
It was further submitted that the appellant was estopped from agitating the question after the lapse of 30 days as is statutorily required under section 30 of the Arbitra tion Act.
Allowing the appeal, this Court, HELD: (1) The real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be construed strictly.
Therefore, unless a document is clearly brought within the provisions of the section, its non registration would be no bar to its being admitted in evidence.
[259C D] Ramaswamy Ayyar & Anr.
vs Thirupathi Naik, ILR XXVII Madras p. 43, affirmed.
(2) On a proper construction of the award, it does appear that the award did create, declare or assign a right, title and interest in the immovable property.
The award declares that 1/2 share of the ownership 252 of Shri Lachhman Dass shall "be now owned by Shri Ram Lal, the respondent in addition to his 1/2 share owned in these lands.
" Therefore,the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause.
It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre existing right but creation of new right of the parties.
The award in the instant case affects immovable property over Rs. I00 and as such was required to be registered.
[259D F; 262G] (3) The filing of an unregistered award under section 49 of the Act was not prohibited.
What was prohibited was that it could not be taken into evidence so as to affect immovable property failing under section 17 of the Act.
[260E] (4) An award affecting immovable property of the value of more than Rs. I00 cannot be looked into by the Court for pronouncement upon the award, on the application under section 14 of the unless the award is registered.
Section 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and make it a rule of the Court.
But in order to do so, the court must be competent to look into the award.
Section 49 of the act enjoins that the award cannot be received as evidence of any transaction affecting immovable property or conferring power to adopt, unless it is registered.
In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award.
[263E F] Satish Kumar & Ors.
vs Surinder Kumar & Ors., and Ratan Lal Sharma vs Purshottam Harit, ; , relied upon.
(5) In the instant case, though it may not be possible to take the point that the.
award is bad because it is unregistered as such, it could not be taken into considera tion in a proceeding under section 30 or 33 of the , but it can be taken in the proceedings under section 14 of the when the award is sought to be .filed in the Court and the Court is called upon to pass a decree in accordance with the award.
As the court could not look into the award, there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the Court.
Further, at the relevant time the award was not registered.
If that is the position, then the subse 253 quent registration of the award whether in conformity with sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant.
[265A D] Gangaprashad vs Mt. Banaspati, AIR 1933 Nagpur 132, referred to.


Input:
Civil Appeal No. 487 of 1977.
Appeal by Special leave from the Judgment and order dated the 5th January, 1977 of the orissa High Court in O.J.C. No. 810 of 1976.
V S Desai, Parveen Kumar and Ashok Mathur for the Appellant.
C.V. Murty, K. PrabhaKar Rao and C.M. Murty for the Respondents.
R.K. Mehta for Respondent No. 3.
B.D. Sharma for Respondent No. 2.
The Judgment of the Court was delivered by MISRA J.
: The present appeal by special leave is directed against the judgment of the High Court of Orissa dated 5th January ]977 dismissing a petition under 'articles 226 and 227 of the Constitution ' for quashing imposition of octroi under section 131(1)(kk) of the Orissa Municipal Act, 1950 (hereinafter referred to as the 'Act ') and for . '.
a declaration.
that the notifications dated 31st July 1973 and 12th August, 1975 issued by the State Government in exercise of powers .
vested under s.4 of the Act are illegal and unenforceable and for a further declaration that the octroi Bye laws of the Jharsuguda Municipal Council are also void and inoperative.
Jharsuguda Municipality, respondent No. 1, is a municipality incorporated under the Act.
In March 1962 the State Government 'accorded sanction for the imposition of octroi in terms of s.]3](]) of the Act. ' A set of octroi bye laws were framed by the Municipal Council in terms of s.388 of the Act and the same were also approved by the State Government in exercise of powers under s.390 of the Act on 19th March, 1968.
octroi was levied for the first time after 31st March 1962 when the State Government accorded sanction under s.131 (i)(kk) of the Act.
The appellant is a company duly incorporated under the Indian having its mills located at village Ektali under the Jharsuguda police station in District Sambalpur, Orissa.
The said area of the village was included within the Ektali Panchayat.
The company mainly carries on spinning of cotton which in the manu . 404 facturing ' process is transformed from loose fibres into finished yarn.
The area under the Ektali village in which the appellants ' factory was located was constituted, along with other villages as a Gram by a declaration made under s.3 of the, Orissa ' Grama Panchayat Act, 1964.
On or about 25th March, 1970 Jharsuguda Municipality passed a resolution for the inclusion of Ektali and other villages in the Jharsuguda Municipality and thus extending the area of the said Municipality.
Against the proposed extension the appellant made a representation to the State Government inter alia on the ground that he said, village Ektali could not under the relevant rules be included in the Municipality under s.4(1)(c) of the Orissa Municipal Act, 1950 in view of the proviso to s.4(1) which contemplates that a declaration shall not be made under this sub section unless the State Government are satisfied that two thirds of the adult male population of the town to which it refers are chiefly employed in pursuits other than agriculture and that such a town contains not less than 10,000 inhabitants and an average number of not less than 1000 inhabitants to a square mile of the area of such a town.
The appellant alleged that the male population of the said village Ektali was 2640 as per 1971 census report, out of which only 1586 were chiefly employed in pursuits other than agriculture and thus two thirds of such male population were not employed in non agricultural pursuits.
The State Government, however, by a notification dated 31st July 1973 declared their intention under s.4(1)(c) of the Municipal Act, 1950 to include within the Jharsuguda Municipality the local area of a number of villages including the village Ektali.
By the said notification published in Orissa Gazette Extraordinary dated 22nd August, 1973 the Government invited objections within six weeks from the date of publication.
The appellant did file objection to the said notification.
Objection was also filed by Grama Panchayat of Ektali to the effect that the Ektali Grama was duly constituted , by the State Government in Community Development and Panchayat Raj Department in exercise of powers under s.3(1) of the Orissa Grama Panchayat Act and in the absence or any notification under s.3(1) and s.149 of the Grama Panchayat Act, village Ektali still continues to be a Grama.
The objections were examined by the District Magistrate, Sambalpur and the Revenue Division Commissioner Northern Division, .
Sambalpur and the same were rejected.
On 12th August, 1975, notification under s.4(33(b) declaring the inclusion of the said villagsa 405 including the village Ektali, into Jharsuguda Municipality was issued.
Soon thereafter on Ist September, 1975 the said Jharsuguda Municipality sent a letter to the appellant directing it to pay octroi as per provisions of s.5 of the Orissa Municipal Act.
The said octroi was payable at the rate of 1 per cent ad valorem on cotton as soon as it entered the municipal check post for the purpose of its being spun into yarn.
The levy or octroi duty was challenged by filing a petition under articles 226 and 227 of the Constitution on various grounds viz.
,(a) the inclusion of village Ektali in the area of Jharsuguda Municipality was illegal and ultra vires the provisions of the Orissa Municipal Act, and (b) the levy of octroi duty at the rate of I percent ad valorem was arbitrary, coercive and violative of article 301 of the Constitution and, therefore, the appellant prayed for quashing the notifications referred to above.
The writ petition was, however, dismissed by a Division Bench of the Orissa High Court by its order dated 5th January.
1977 The appellant filed an application under article 133(1) of the Constitution for the grant of a certificate for leave to appeal to 'this Court, which was dismissed by the High Court by its order dated 19th January, 1977.
The appellant has now filed the present appeal after obtaining special leave from this Court.
The learned counsel for the appellant raised the following contentions: .
In the absence of a notification cancelling the declaration constituting Ektali village as part of Grama, it was not legally permissible for the State Government acting ' under the Orissa Municipal Act 1 950 to include within the area of the municipality the area of the said Grama. 2.
The mandatory requirements of proviso to sub s.(l) of s.4 of the Orissa Municipal Act, 1950 have not beer satisfied.
The objection filed by the appellant under sub s.(2) of s.4 has not been considered by the State Government.
(a) The liability to octroi arises when any of the three alternatives mentioned in s.]31(1)(kk) of the Municipal Act is satisfied viz., when the goods are brought 406 within the municipal limits for (i) consumption, (ii) use or (iii) sale.
(b) The tax already imposed within the limits of the Municipality of Jharsuguda could not be automatically made applicable to the extended limits of the municipality without obtaining the sanction of the State Government under s.131(1) (kh) of the Act.
(c) The rate levied is per se unreasonable and arbitrary.
We take up these grounds seriatim.
Admittedly village Ektali where the factory of the appellant is located was a part of the duly constituted Ektali Grama Panchayat prior to 1973, within the meaning of s.3 of the Orissa Grama Panchayat Act.
Sub section (1) of s.3 authorises the State Government to constitute any village or group of contiguous villages as a Grama by a declaration notified in the Gazette and assign to such Grama a name which shall be of one of the villages comprised within the Grama.
Subsection (2) of 5.3 provided that whenever the State Government deems it fit so to do, they may cancel any notification in respect of a Grama under sub s (1) on may alter the area comprised in a Grama by reducing or adding to the number of villages comprised within such Grama by a declaration 'notified in the Gazette constituting such altered area or areas as a Grama or Gramas, as the case may be.
The precise contention raised on behalf of the appellant is that there was a declaration by notification for the.
constitution of the Grama within the meaning of sub s.(l), but there has been no notification as required by sub s,(2) of s.3 for taking village Ektali out of Grama Panchayat and, therefore, village Ektali continues to be a Grama and the inclusion of village Ektali in Jharsuguda Municipality by notifications dated 31st July, 1973 and 12th August, 1975 will have no effect.
This contention has considerable force: When a duly constituted Grama is to go out of existence an order of the Magistrate cancelling the notification in terms of sub s.(2) of s.3 of the Grama Panchayat Act is necessary.
But there are circumstances which take away the force of the argument.
The Grama Panchayat never ' challenged the notification of inclusion of the village Ektali in Jhar 407 suguda Municipality.
From un controverted averment made in para 6 of the counter affidavit of the State filed before the High Court it appears that the Grama Panchayat was consulted before the impugned notification.
Therefore, we do not feel persuaded to accept the contention at the instance of the appellant.
This leads us to the second ground.
In order to.
appreciate the second ground it is appropriate at this stage to refer to the provisions of s.1 in so far as it is relevant for the purposes of the case: "4.(1) The State Government may, by notification declare their intention (a) to constitute any town, together with, or exclusive of, any railway station, village, land or building in the vicinity of any such town, a municipality under this Act: or (b) . . . . . . . (c) to include within a municipality any local area contiguous to the same and defined in the notification; or (d) . . . (e) . . .
(f) . . . (g) . . . (h) . . .
Provided that a declaration shall not be made under this sub section unless the State Government are satisfied that two thirds of the adult male population of the town to which it refers, are chiefly employed in pursuits other than agricultural, and that such town contains not less than ten thousand inhabitants and an average number of not less than one thousand inhabitants to the square mile of the area of such town, 408 (2) Any inhabitant of the town or local area, or any, rate payer of the municipality, in respect of, which any .
such notification has been published under sub section (l) may, if he objects to anything contained in the notification, submit his objection in writing to the State Government.
through the Magistrate of the district within six weeks from the date of the publication of the notification and the ' State .
Government shall take his objections into consideration.
(3) . ." The emphasis of the appellant is that two third of the adult male population of the Grama should be chiefly employed in pursuits other than agricultural.
The appellant has referred to 1971 census figures.
On the basis of these census figures it is argued that out of the total male population of 2640 of Grama Ektali only 1586 adults were engaged in non agricultural pursuits hut the requirement of law was that two third of the male population should have been employed in the non agricultural pursuits which comes to 1760.
The argument proceeds on the assumption that the proviso to s.4(1) applies.
But a bare persual of the proviso clearly indicates that the requirement is that two thirds of the adult male population of the town to which it refers should be engaged in non agricultural ' pursuits.
The provision, to our mind, applies not to all the classes of sub s.(l) of s.4 but it applies only to cl.(a) of sub s.(l) of s.4, because it is cl.(a) of s.4(1) which talks of town.
Therefore, the proviso, in .
Our opinion, has no application to the present case and that cannot be taken to be a ground for challenging the notification for inclusion of village Ektali in the Jharsuguda Municipality.
This takes us to the third ground.
The appellant had filed an objection under sub s.(2) of s.4.
The said objection was examined by the District Magistrate, Sambalpur and the Revenue Divisional Commissioner (Northern Division), Sambalpur: They overruled the objection treating it to be of general nature.
Thereafter, the Community Development and the Panchati Raj (Grama Panchayat) Department were consulted to agree with this proposal, to which they agreed, and it was thereafter.
that the Urban Development Department issued a final notification dated 12th August, 1975 to include the above village into the municipal limits of Jharsuguda Municipality.
The contention of the appellant that the objection had not been considered by the State Government 409 cannot be accepted in as much as the objection is required to be made through the Magistrate of the district.
Naturally, the District Magistrate while forwarding the objection to the State Government made his comment.
The Revenue Divisional Commissioner intervenes in the channel of communication between the District Magistrate and the State Government and he, therefore, had an occasion to.
process the matter.
The State Government while dealing with the matter consulted the.
Panchayati Raj Department and ultimately notified in terms of notification dated 12th August, 1975.
In the circumstances it cannot be accepted that the objection filed by the appellant had not been considered by the State Government.
It was next contended that the liability for octroi arises when ally of the three alternatives mentioned in s.131(1)(kk) of the Municipal Act are satisfied, namely, when the goods are brought within the municipal limits fol (i) consumption, (ii) use, or (iii) sale.
Section 131(1) of the Municipal Act empowers the Municipal Council to impose various kids of taxes within the limits of the Municipality with the sanction of the State Government.
One of the taxes contemplated by s.313 (l) is octroi, as provided in cl.
According to the appellant the goods are brought into the municipal area not for the purpose of sale or for consumption but for the purpose of manufacture of yarn.
The appellant took support from Burmah Shell Oil Storage & Distribution Co. India Ltd. vs The Belgam Borough Municipality in which this Court had an occasion to consider the word 'Consumption '.
This Court took the view that the word 'consumption ' in is primary sense means the act of con summing and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article, but in some legal contexts, the word 'Consumption has a wider meaning and that it is .
not necessary that by the act of consumption the commodity must be ' destroyed or used up.
On the strength of this authority it is con tended that the goods were brought into the municipal limits neither .
For consumption, nor for sale.
Assuming the contention to be correct there is no escape from the conclusion that the goods are brought into the municipal limits at.
least for the purpose of use.
In this view of the legal position the imposition of octroi by the Municipality cannot be challenged on this ground.
The next ground of attack is based on s.372 of the Orissa Municipal Act.
Section 392 pertinently reads: H 410 "392.
The State Government before making any rules under sub section (2) of section 81 and section 387, and a municipal council, before making any regulation or by laws under section 388, shall publish, in such manner as the State Government deem sufficient for giving information to persons interested, the proposed rules or regulations or by laws together with a notice specifying a date on or after which the same will be taken into consideration; and shall before making such rules or regulations or by laws, receive and consider any objection or suggestion which may be made by any person with respect to the same before the date so specified.
Every such rule or regulation or by law shall be published in the Gazette in English and in Oriya and such publication shall be evidence that the rule or regulation or by law has been made as required by this section.
" It is contended that the mandatory requirements having not been complied with the imposition of octroi is vitiated on this account.
The appellant in para 3 of the Writ petition had alleged that the bye laws 'were not published in the State Gazette either in Oriya or in English.
This allegation has, however, been controverted by the State Government in para ]8 of the counter affidavit.
It was specifically averred that the bye laws were approved and confirmed by the Government in Urban Development Department vide.
Order No. 1903/Legis 43 67/UD dated nil published in Orissa Gazette for information of the general public on 23rd May, 1969 at pages 691 to 697.
There is a statutory presumption under s.3 of the Act that the publication of the rules or regulations or by laws in the Gazette shall be evidence that the rule or regulation or bye law has been made as required by this section.
In view of this statutory presumption the Court will assume that the bye law has been made in accordance with law in the absence of anything more from the side of the appellant.
As a second limb to this argument it was contended by the appellant that even assuming that the bye laws when initially enforced might be presumed to be in accordance with law, in the absence of similar steps being taken at the time of extension of bye Jaws to the newly added area, the bye laws are not enforceable in the new area.
411 This argument has proceeded in utter oblivion of the provisions of s.5 of the Municipal Act.
It reads: "5.
When any local area is included in a municipality, by a notification under clause (b) or (c) of sub section (3) of section 4, all the provisions of this Act and of any rules, by laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, shall be deemed to apply to such area, unless the State Government, in and by the notification, otherwise direct." The learned counsel for the appellant, however, has placed strong reliance upon Visakhapatnam Municipality vs Kandrequla Nukaraju & Ors.
In that case the question that fell for consideration was whether the property tax which could lawfully be levied under the District Municipalities Act 1929 can be levied after the repeal of that Act, on property situated in the areas included within the municipal limits after the constitution of the municipality.
Section 391(1) of the Andhra Pradesh Municipalities Act 1965 expressly repealed the.
District Municipalities Act, 1920 from which it must follow that ordinarily no action can be taken under the Act of 1920 after April 1, 1966 when the repeal became effective on the coming into force of the Act.
It was, however, contended in that case that cl.
la of Schedule 9 of the Act keeps the repealed enactment alive for tax purposes and, therefore, the municipality had the authority to impose the property tax under the Act of 1920 notwithstanding its repeal by the new Act.
This Court, however, took the view that the provisions contained in the Schedule are of a transitional nature.
They were intended to apply during the period of transition following upon the repeal of old municipal laws and the introduction of the li new law.
The object of clause 12 of Schedule 9 was to authorise the levy of taxes which, on the commencement of the Act, Were levied under the repealed laws.
This Court further added that the municipality might have been levying property tax since long on properties situated within its limits, but until April 1, 1966 the villages of Ramakrishnapuram and Sriharipuram were outside those limits.
Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the municipality to follow the procedure prescribed by the first proviso to section 81(2).
Residents and tax payers of those areas never had 412 an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them.
It is obligatory upon the municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period.
For the State, however, reliance was placed in that case on s.3(4) of the Act to contend that the inclusion of the two villages within the municipal area attracts of its own force every provision of the Act with effect from the dale on which the final notification is published.
by the Government under s.3(3).
In support of this contention it cited the decision of this Court in Atlas Cycle Industrial Ltd. vs State of Haryana & Anr.
This argument on behalf of the State was, however, repelled and the Court observed :.
"Far from supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the appellant.
In the Atlas Cycle case, section 5(4) of the Punjab Municipality Act, 1911 provided that when any local area was included in the municipality, "this Act and. all .
rules, bye laws, orders, directions and powers made, issued or conferred under this Act and in force throughout the whole municipality at the time, shall apply to such areas.".
" But this Court took the view that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(1) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in section 5(4) of the Punjab Act.
That case, however, is distinguishable and cannot be of much assistance for solving the problem before us.
Section 5 of the orissa Municipal Act makes all the provisions of the Act and of any rules, by laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, applicable to such area, unless the State Government, in and by the notification, otherwise direct.
This section, therefore, includes not only the provisions of the Act, rules and bye laws but also includes notifications.
This distinguishes the.
present case from the Visakhapatnam Municipality 's case (supra).
413 For the appellant, next reliance was placed upon Bagalkot City Municipality vs Bagalkot Cement.(1) In that case also at the time of the imposition of the octroi duty the respondent 's factory was situated outside the municipal district and was not subject to the octroi duty.
Subsequently, the Government extended the municipal district so that the factory came to be included within that district.
The appellant in that case contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into the factory.
The majority view was that the expression "municipal district" in the bye law referred to the municipal district as existing when the bye law was framed.
The context prevented the definition of "municipal .
district" in the Act, namely, the municipal district as from time to time existing from being applied under s.20 of the Bombay General Clauses Act to interpret the bye law The bye law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non compliance with the provisions of s.48 of the Act.
This case again is distinguishable in view of the wording of s.5 of the orissa Municipal Act: .
Lastly it is urged that the octroi duty levied in this case by the Municipality is unreasonable and excessive.
The Municipality is required to provide certain amenities not only for the permanent residents within the municipality, but also even for casual visitors who may on occasions enter the limits of the municipality.
The entry of large quantities of goods within the municipality almost daily from outside necessarily creates innumerable problems such as provisions of water supply, lighting facilities, facilities for conservancy, sanitation, maintenance of good roads and markets etc.
which the Jharsuguda Municipality has done and there is no allegation to the contrary by the appellant.
From the material placed before us we are of the view that the levy is not an unreasonable one.
It is not also excessive.
The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of article 19(1)(g) of the Constitution.
Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.
414 For the foregoing discussion the appeal cannot succeed.
It is accordingly dismissed.
In the circumstances of the case, however, we allow the parties to bear their own costs.
S.R. Appeal dismissed.

Output:
The appellant Textile Mills is a company duly incorporated under the Indian having its mills located at Village Ektaji under the Jharsuguda police station in district Sambalpur, Orissa.
The company mainly carries on spinning of Cotton which in the manufacturing process is transformed from loose fibres into finished yarn The area under the Ektaji village in which the appellant 's factory was located was earlier constituted as a Grama by a declaration made under Section 3 of the Orissa Grama Panchayat Act 1964.
On or about March 25, 1970 Jharsuguda Municipality passed a resolution for the inclusion of the Ektaji and other villages within its jurisdiction.
After considering the objections and representations against the inclusion of Ektaji village in the Municipal Limit and after following once again the other statutory requirement of further notice etc.
, the State Government published in the Orissa Gazette dated 12.8.1975 a notification approving the inclusion.
Soon thereafter on September 1, 1975 the said Jharsuguda Municipality sent a letter to the appellant directing it to pay octroi duty at the rate of I percent ad valorem on cotton as soon as it entered the Municipal check post for the purpose of its being spun into yarn.
The levy of octroi was challenged by filing a petition under articles 226 and 227 of the Constitution on various grounds, but the writ Petition was dismissed.
Petition seeking permission for issuance of a certificate under Article 133(1) of the Constitution was also dismissed.
Hence the appeal after obtaining Special Leave of the Court.
Dismissing the appeal the Court.
^ HELD: 1.
Considering the case from any aspect the imposition of Octroi duty under section 5 of the Orissa Municipal Act, 1950 does not suffer from any infirmity [413 H] 2.
The levy, being neither an unreasonable one nor also excessive, cannot .
be challenged on the ground that there is violation of Article 19(1)(e) of the Constitution.
[413 a] 402 3.
It is true that when a duly constituted Grama under sub section (I) of section 3 of the Grama.
Panchayat Act is to go out of existence an order of the Magistrate cancelling the Notification in terms of sub section (2) of Section 3 of the said Act is a pre requisite.
But in the instant case the Gram Panchayat never challenged the Notification of inclusion of the Village Ektaji in Jharsuguda ' Municipality.
Rather on the other hand the Gram panchayat was consulted before the impugned notification dated 12th August 1975 was issued.
[406 H; 407 A] 4.
The proviso to sub section 1 of Section 4 of the Orissa Municipal.
Act, 1950 has no application to the present case and that cannot be taken to be a ground for challenging the Notification for inclusion of Village Ektaji hl the Jharsuguda Municipality.
A bare perusal of the proviso clearly indicates that the requirement is that two thirds of the adult, male population of the town to which it refers should be engaged in non agricultural pursuits The proviso applies not to all the clauses of sub section (I) of section 4 but it.
applies only to clause (a) of sub section (1) of Section 4, because it is clause (a) of section 4 (1) which talks of town.
[408 E F] 5.
The contention that the objection raised by the appellant against the inclusion of the village in question into Municipality has not been considered by the State has no force.
The objection is required to be made through the Magistrate of the District.
Naturally the District Magistrate.
while forwarding the objection to the State Government made his comment.
The Revenue Divisional officer who intervenes in the channel of communication between the District Magistrate and the State Government had an occasion to process the matter.
The State Government while dealing with the matter consulted the Panchayat Raj Department and ultimately notified in terms of the notification dated August 12, 1975.
[408H; 409A B] 6.
Section 131(1) of the Municipal Act empower the Municipal Council to impose various kinds of taxes which includes octroi as provided in Clause (kk) with the sanction of the Government since the goods are brought into the municipal limits at least for the purpose of use" one of the three conditions laid down in clause (kk the imposition of Octroi is valid.
Burmah Shell Oil Storage & Distribution Co. vs The Belgam Borough Municipality ' [1963] Supp 2 SCR 216 referred to and held inapplicable.
[409 D E] 7:1.
There is a statutory presumption under section 392 of the Orissa Municipal Act, 1950 that the publication of the rules or regulations or bye laws in the Gazette shall be evidence that the rule pr regulation or bye law has, been mad as required by the section Therefore the court will assume that the bye law has been made in accordance with law in the absence of anything more from the site of the appellant.
1410 F G] 7 :2; The argument that even assuming that the bye laws when initially enforced might be presumed to be in accordance with law in the absence of similar steps being taken at the time of extension of bye laws to the newly added area, the bye laws are not enforceable in the new areas is not correct as it has, proceed in utter oblivion of the provisions of section 5 of the Municipal Act.
[410H; 411 A] Vishakhapatanam Municipality vs Kandregula Nukarajau & Ors. ; ; Atlas Cycle Industries Ltd. vs State of Haryana and Anr. ; ; Bagalkot City Municipality v Bagalkot Cement [1963] 2 Supp S.C.R. 710; distinguished 403