Input:
(c) No. 75 Of 1991.
(Under Article 32 of the Constitution of India) R.P. Singh for the Petitioners.
G. Ramaswamy, Attorney General, A.K. Srivastava and Ms. A. Subhashini (N.P.) for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
This is an application under Arti cle 32 of the Constitution by 55 persons both men and women claiming the benefit of the scheme of pension for Freedom Fighters.
It is the common contention of the petitioners that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam 's State of Hyderabad and each of them had been convicted under different provisions of the crimi nal law then prevailing within the Nizam 's State and sen tenced to various terms of imprisonment.
In the case of most of them the term of imprisonment was around two years.
They maintained that the Arya Samaj movement has been equated with the freedom struggle and the benefit of the pension scheme is admissible to those who had participated in the movement as Arya Samajists.
According to them, in the prime of youth the petitioners had been motivated by the call of Mahatma Gandhi, the Father of the Nation and leaders like the late Pt.
Jawaharlal Nehru, Dr. Rajendra Prasad and others and had given up their home and hearth and had joined the agitation within the Nizam 's State and suffered the consequences.
Since their claim for pension had not been accepted by the Government of India they have applied to this Court for appropriate direction for being admitted to the benefits of the scheme.
A counter affidavit has been filed on behalf of the respondents by Under Secretary Alam in the Ministry of Home Affairs who while not disputing the assertion of the peti tioners that the Union of India had accepted the Arya Samaj movement to be a part of the freedom struggle has disputed the entitlement of pension in the case of most of the peti tioners.
118 Petitioners have relied upon the decision of this Court dated July 16, 1991, in Writ Petition No. 1190/89 Duli Chand & Ors.
vs Union of India & Ors.) where similar relief claimed by 41 persons had been accepted.
That case, accord ing to the counter affidavit, was disposed of ex pane and by accepting all the allegations of the petitioners therein.
In view of the dispute now raised in the counter affidavit, particularly with reference to the factual aspects, we do not think it would be appropriate to dispose of the present petition by adopting the order of this Court in the said writ petition.
It is the accepted position that if petitioners suffered the minimum sentence of six months of imprisonment on ac count of their participation in the Arya Samaj movement they would be entitled to pension under the Swatantrata Sainik Samman Pension Scheme.
The question for examination, there fore, is whether petitioners did suffer such sentence.
As we have already mentioned most of the petitioners have produced material to show that they had participated as alleged and were sentenced to imprisonment for terms exceed ing six months.
While they were undergoing sentence, without their praying for any remission, a general amnesty was declared by the then Nizam on his birthday and the sentence was reduced and the petitioners were set free.
Freedom Fighters ' Pension Scheme of 1972 was renamed as "Swatantrata Sainik Samman Pension Scheme 1980".
The bro chure published by the Union of India indicates: "A person who had suffered a minimum imprisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension".
It has already been indicated that each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months.
The petitioners ' assertion that they did not claim remission has not been doubted or disputed.
In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension.
Learned Attorney General appearing for the respond ents has accepted this construction of the entitlement clause.
The writ petition is accordingly allowed and the re spondents are directed to admit each of the petitioners to pension under the Scheme within two months hence.
The pen sion be paid with effect from 1st August 1990 as in the connected case.
No costs.
V.P.R. Petition allowed.

Output:
In the Application under Article 32 of the Constitution by 55 persons claiming the benefit of the scheme of pension for Freedom Fighters, the petitioners contended that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam 's State of Hyderabad and were convicted under different provisions of the criminal law and sentenced to various terms of imprisonment; that the Arya Samaj move ment had been equated with the freedom struggle and the benefit of the pension scheme was admissible to those who had participated in the movement.
The respondents while not disputing the assertion of the petitioners that the Union of India has accepted the Arya Samaj movement to be a part of the freedom struggle, has disputed the entitlement of pension in the case of most of the petitioners.
Allowing the petition, this Court, HELD: 1.
Freedom Fighters ' Pension Scheme of 1972 which was renamed as "Swatantrata Sainik Samman Pension Scheme 1980" indicates: "A person who has suffered a minimum im prisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension.
" Each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months.
While they were under going sentence, without their praying for any 'emission, a general amnesty was declared by the then Nizam on his birth day and the sentence was reduced and the petitioners were set free.
[118 E F,D] 2.
In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond 117 six months remission had been granted and they were let off earlier would not take away their right to earn pension.
[118F] Duli Chand & Ors.
vs Union of India & Ors.
,W.P.No.
1190/89, dated, July 16, 1991 by the Supreme Court of India, followed.


Input:
Appeal No. 9 of 1958.
Appeal by special leave from the judgment and order dated February 24, 1955, of the former Bombay High Court in Income tax Reference No. 50/X of 1954.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
R. J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent.
August 10.
The Judgment of the Court was delivered by SHAH, J.
Aktiebolaget Svenska Kullakerfabriken of Gothenburg is a company incorporated under the laws of Sweden, and is engaged in the manufacture of ball bearing equipment.
section K. F. Ball Bearing Co., Ltd., which will hereinafter be referred to as " the section K. F." is a company registered under the Indian Companies Act, 1913.
By an agreement dated January 1, 1939, the section K. F. was appointed by the Swedish company as its sole selling agent in India.
On account ,of the commencement of hostilities in the second world war, a corporation known as the Panrope Corporation was incorporated in the Republic of Panama in 1940, to take over as a war time arrangement the assets and business of that Swedish company.
With effect from July 1, 1947, the Panrope Corporation conveyed the property and business to the Swedish company.
In the years 1947, 1948, 1949 and 1950 the section K. F. sold in India as the agent 'of the Swedish and Panamian companies which will hereinafter be collectively referred to as the " foreign corporations " the goods manufactured by them.
A small quantity of goods was bought by the section K. F. 143 and sold by it in India, but no question arises in this appeal about the liability to pay income tax in respect, of sale of those goods and no reference is made herein in respect of those sales.
The Income tax Officer, Companies Circle 11(3), Bombay, exercising powers vested in him by section 43 of the Indian Income tax Act, 1922, having appointed the section K. F. as the statutory agent of the foreign corporations for the assessment year 1948 49, and of the Swedish company for the assessment years 1949 50, 1950 51 and 1951 52, the section K. F. submitted returns of income for these years in the taxable territory on behalf of the foreign corporations.
Clauses 13, 22 and 23 of the agreement dated January 1, 1939, between the section K. F. and the Swedish company which are material for the purpose of this appeal are as follows: Clause 13: The Agent shall render before the tenth day of each month a true and detailed statement of the said Products that have been sold by him or his Sub Agents during the preceding month.
This statement is to be prepared in accordance with instructions that are to be given by section K. F. and it shall contain the names and addresses of the parties to whom the said Products have been supplied, together with a description of the Products and the prices at which they have been sold.
Clause 22: The Agent shall sell the said Products either for cash or on credit.
Notwithstanding the fact that permission is hereby granted by section K. F. to the Agent to sell on credit any credit given by the Agent to the buyer of the said Products shall be deemed to have been given by the Agent for his own account and on his own responsibility.
If the buyer has not paid the Agent the amount that is owing by the date on which the Agent is to render a statement and make payment to section K. F. for such sales that have been made on credit, the Agent shall nevertheless be liable to effect payment to section K. F. in accordance with the terms and conditions that are defined in this Agreement.
Clause 23: The Agent shall pay to section K. F. the 144 net sales value of the said Products that are sold each month, after deduction of the commission that has been agreed upon (cf 20) and the import expenses that have been paid (of. 21).
Payment shall be made in Sweden thirty (30) days, at the latest, following the last day of the month in which the sales have been effected.
The Income tax Appellate Tribunal has found that for rendering accounts of the net sales and also for making payments according to the terms of el. 13 of the agreement, the section K. F. maintained for the relevant periods a current account in the names of the foreign corporations in respect of goods " received on consignment ".
When goods were sold by the section K. F., the account of the principal was credited with the price and the account of the buyers to whom the goods were sold on credit was debited.
In a majority of cases of sales, remittances of "sale value" after deducting commission were made after sale of the goods to the buyers but before the sale proceeds were recovered.
In a few cases, remittances were made even before the goods were sold, and in the remaining, remittances were made after the sale proceeds were realized from the buyers.
The Income tax Officer assessed the foreign corporations under section 4(1)(a) of the Indian Income tax Act for payment of tax on the profits included in the price realized by the section K. F. by sale of goods " received on consignment " without making any distinction between sales in respect of which the remittances were made after recovery of sale proceeds and sales in respect of which remittances were made before reco very of the sale proceeds.
The order passed by the Income tax Officer was confirmed by the Appellate Assistant Commissioner and also by the Income tax Appellate Tribunal.
At the instance of the section K. F., the following questions were referred to the High Court of Judicature at Bombay under section 66(1) of the Indian Income tax Act, 1922: (1) Whether there was evidence on which the Tribunal could have held that the Panrope Corporation and the non resident company had a business 145 connection in the taxable territories in the years of account ? (2) Whether the profits of the Panrope Corporation and the non resident company in respect of the consignment goods were received in the taxable territories on their behalf ? At the hearing of the reference before the High, Court, counsel for the assessee having conceded that the section K. F. was not a purchaser of the goods " received on consignment " from the foreign corporations, but was their agent for sale of the goods, an answer in the affirmative was recorded on the first question.
On the second question, the High Court opined that as the remittances by the section K. F. pursuant to the terms of cl. 23 of the agreement before the sale pro ceeds were realized from the buyers were received by the foreign corporations outside the taxable territory, the same could not be taken into account under section 4(1)(a) of the Indian Income tax Act in assessing the taxable income of the foreign corporations.
The High Court observed that the section K. F. was liable to pay tax on behalf of the foreign corporations under section 4(1)(a) only if the taxing authority established that the foreign corporations had received the sale proceeds within the taxable territories; that the sale proceeds were received by the foreign corporations when the section K. F. made remittances under cl. 23 of the agreement, but somewhat inconsistently the High Court observed that the remittances made by the section K. F. before the sale proceeds were realized, were remittances not of sale proceeds, but in discharge of its obligation under el.
23 of the agreement; and that the realizations by the section K. F. from the buyers of the goods subsequent to the remittances were not of sale proceeds on behalf of the foreign corporations but were receipts on its own behalf and in its own right, and in recoupment of the amounts remitted to the foreign corporations.
The High Court accordingly answered the second question in the affirmative " to the extent that the remittances were made after the sale proceeds were received by the assessee company".
19 146 We are unable to agree with the reasoning and the ,,conclusion of the High Court.
The terms of the agreement make it abundantly clear that the goods " received on consignment " from the foreign corporations were received by the section K. F. as their selling agent and not as purchaser.
The goods, it is true, were sold by the section K. F. in its own name and not in the name of the foreign corporations, but the goods were still sold for and on behalf of the foreign corporations and the sale proceeds received by the section K. F. were received not on its own behalf but for and on behalf of its principals.
Clauses 9, 12, 13, 14, 17, 18 and 20 of the agreement clearly show that the goods received by the section K. F. continued to remain the property of the foreign cor porations till they were sold to the buyers.
In the price received for sale of the goods, the profit of the owner was in truth embedded and that profit was liable to be taxed under section 4(1)(a) of the Indian Income.
tax Act if it was received in the taxable territory.
It is not disputed that the sale proceeds realized by the section K. F. in the taxable territory as agent of the foreign corporations before remittances under the terms of the agreement were liable to be taxed.
Does the circumstance that the section K. F. had in discharge of an obligation undertaken by it made remittances under the terms of the agreement before it realized the price of the goods sold alter the nature of the realizations ? The remittances made by the section K. F. indisputably reached the foreign corporations in respect of all sales outside the taxable territory.
But the section K. F. was their agent for sale of the goods, and for receiving the price in the taxable territory.
The relation between the section K. F. and the foreign corporations was not altered because before realizing the price from the buyers remittances were made to the foreign corporations.
The price of goods sold by the section K. F. whether before or after remittance was realized as the agent of the foreign corporations.
If remittance in respect of a sale was made before the price was realized, the section K. F. became entitled to adjust the account and to take credit for the amount paid out of the realization.
What the foreign corporations received under remittances 147 made before or after realization of the price was not the sale proceeds in respect of sales, but amounts.
due by the section K. F. under an obligation expressly undertaken by it under cl. 23 of the agreement.
The price of goods sold by the section K. F. were in all cases received by it within the taxable territory ; and the section K. F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory.
It is the receipt of income which gives rise under section 4(1)(a) of the Indian Income tax Act to liability to pay tax: and the place where the price is received is determinative of the question whether the income is received in the taxable territory.
The price for the goods sold was received only when the buyer paid it and not before, and when the price was received by the section K. F., the income was received.
The remittances by the section K. F. to the foreign corporations before the price was received did not include income, because income in fact was never received till the price was realized.
Again we are unable to agree with the contention of counsel for the section K. F. that there was a contract of suretyship between the foreign corporations and the section K. F. and the receipt by the former of the remittances amounted to receipt of the price of the goods.
It is not pretended that there was a tripartite contract and the foreign corporations sold the goods directly to the purchasers in India, the section K. F. having guaranteed payment of the price by the buyers to whom the goods had been sold.
The price received by the section K. F. being received within the taxable territory for and on behalf of the foreign corporations in respect of goods sold, we are unable to hold that the realization of the price in which is embedded the profit is not liable to tax under section 4(1)(a) as income received, merely because under an independent obligation, the section K. F. has rendered itself liable to pay the amount equivalent to the price (less commission) even before the price has been realized and has discharged that obligation.
In the view taken by us, the second question will be 148 answered in the affirmative in respect of sale of all ,goods where the price has been received by the S.K.F. in the taxable territory, and irrespective of whether the remittance has been made in respect of the goods sold before or after the price was received.
The appeal is accordingly allowed to the extent indicated.
The appellant will be entitled to his costs in this court and also the costs of the reference in the High Court.
Appeal partly allowed.

Output:
A Swedish company manufacturing ball bearing equipment entered into an agreement with the respondent, section K. F. Ball Bearing Co. Ltd. registered under the Indian Companies Act, 1913, appointing the latter as its sole selling agent in India.
The material portion of the Agreement ran thus: " Clause 23: The Agent shall pay to section K. F. net sales value of the said products that are sold each month, after deduction of the Commission that has been agreed upon and the import expenses that have been paid.
Payment shall be made in Sweden thirty days at the latest following the last day of the month in which the sales have been effected." During the second world war a corporation known as the Pan rope Corporation was incorporated in the Republic of Panama to take over the assets and business of the Swedish company and the said Panrope Corporation in its turn conveyed the property and business to the Swedish company.
Thereafter the respondent company sold in India as the agent of the foreign Corporations goods manufactured by them, and in a majority of the sales the respondent company remitted the " sale value " to the foreign corporations after the goods were sold but before the sale proceeds were recovered from the buyers.
In some cases remittances were made even before the goods were sold and in others remittances were made after the sale proceeds were realised from the buyers.
The Income tax Officer assessed the foreign corporations under section 4(1)(a) of the Indian Income tax Act for payment of tax on the profit included in the price realised by the respondent company without making any distinction between remittances made before recovery of the sale proceeds and remittances made after recovery of the sale proceeds.
This order was confirmed by the higher income tax authorities.
On a reference made at the instance of the respondent company the High Court came to the conclusion that the foreign corporations had a business connection in the taxable territories in the years of account and the respondent company was liable to pay tax on their behalf only with regard to remittances made after the sale proceeds were recovered.
On appeal by the Commissioner of Income tax by special leave, 142 Held, that the liability to pay income tax finder s, 4(1)(a) arose on the receipt of the income and the question whether the income was received in the taxable territory was determined by the place where the price was received.
Profits were received by the respondent company on behalf of the foreign corporations in the taxable territory in respect of all sales of consigned goods irrespective of whether the remittances were made either before or after the price was received.


Input:
on No. 217 of 1956.
Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights.
Pandit Nanak Chand, for the petitioners.
I. N. Shroff, for respondent No. 1.
1960 February, 26.
The Judgment of the Court was delivered by SHAH, J.
This is a petition filed by Sahibzada Saiyed Muhammed Amirabbas Abbasi, who will hereinafter be referred to as the first petitioner on behalf of himself and as the natural guardian of his two minor children, Kamal Abbas and Jehanzeb Bano, petitioners Nos. 2 and 3 against the State of Madhya Bharat (now the State of Madhya Pradesh) and three other respondents for an appropriate writ or writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and any other writ, direction or order directing the State of Madhya Bharat immediately to assume charge of the properties of the minor petitioners 2 and 3 and determining the amount of loss sustained by the minors and calling upon the State of Madhya Bharat and the other respondents to compensate the minors for the full value of the property lost due to their negligence in the discharge of their respective duties in failing to protect the minors ' properties, and calling upon the 4th respondent to produce the minors before this court and directing that the minors be handed over to the custody of some relation who is competent under the Personal Law to have their custody, and calling upon the Chief Secretary of the State of Madhya Bharat to furnish full particulars of the trust property released in favour of the 2nd respondent and directing the 1st respondent to produce in this court the box of jewellery entrusted to it with full particulars regarding its custody from March 29, 1948, and ascertaining whether the contents have 'been misappropriated and further ascertaining the loss, if any, occasioned to the minor petitioners and its quantum and declaring liability of the respondents in that behalf and for further relief which the court may award in the circumstances of the case, as just and proper.
140 Prima facie, the reliefs claimed ate not within the scope of a petition for a writ under article 32 of the Constitution.
This court has power under that Article to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the fundamental rights; but by this petition, the first petitioner claims on the plea that the respodents have misappropriated or misapplied the property of petitioners 2 and 3, a writ or writs directing that loss sustained by the minors be ascertained and made good and also asks this court to provide for the custody of the minors according to their Personal Law.
The facts which give rise to the petition are these: The first petitioner married in 1940 one Naiyar Jahan Begam and by her he had two children petitioners 2 and 3.
Naiyar Jahan Begam died in the year 1943 and petitioners 2 and 3 were thereafter looked after by Musharraf Jahan Begam, mother of Naiyar Jahan Begam.
From her father Naiyar Jahan Begam had inherited certain valuable property and from her mother, Musharraf Jahan Begam, she had received a dowry of substantial value at the time of her marriage.
Before she died on March 6, 1949, Musharraf Jehan Begam had made a trust in respect of certain property of the benefit of petitioners 2 and 3.
The first petitioner had after the death of Naiyar Jehan Begam contracted a second marriage and of that marriage there were three children.
During the life of Musharraf Jehan Begam the first petitioner took no interest in petitioners 2 and 3 and at sometime in the year 1948, he migrated to West Pakistan and took up residence in Rawalpindi.
After the death of Musharraf Jehan Begam, the first petitioner applied to the Madhya Bharat High Court for a writ in the nature of habeas corpus for a direction to produce petitioners 2 and 3 before the court on the allegation that the latter were wrong fully detained The High Court refused to give the direction and ordered that the first petitioner might, if so advised, apply under the Guardian and Wards Act for appropriate relief.
The first petitioner then applied to the 141 court of the District Judge at Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3.
On November 23, 1949, the second respondent, Sultan Hamid Khan, cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5, 1949, the District Court appointed him guardian and rejected the application filed by the first petitioner.
Against the order passed by the District Court, Ratlam, Appeal No. 20 of 1950 was filed in the High Court of Madhya Bharat.
This appeal was dismissed on March 29, 1954.
An application for special leave to appeal to this court under Act.
136 against that order of the High Court was rejected on November 12, 1956.
The first petitioner had, in the meantime, applied to this court under article 32 of the Constitution for the reliefs which have already been set out.
To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend.
Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam, unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide 0. 32, r. 4 of the Code of Civil Procedure).
The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.
The petition filed by the first petitioner is a somewhat prolix document.
The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was 142 acting contrary to their interest and that proceedings in the District Court were vitiated on account of partiality and collusion ' and by reason of deliberate violation of the order passed by the High Court.
The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss.
On these allegations, the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was, by reason of such discrimination in serious danger of being wasted or mis appropriated.
He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian, merely because he had acquired a foreign domicile.
Exercising jurisdiction under article 32 of the Constitution, this court may grant relief for enforcement, only of the rights conferred by Part III of the Constitution.
The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution; 'nor by appointing respondent No. 2 as the guardian of the minors under the Guardian and Wards Act is discrimination practised against the minors.
The second respondent was appointed guardian of the minors by order of a competent court.
and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal.
The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal if there be one.
In the present case, against the order of the District Court appointing the second respondent the guardian of the person and property of the minors, an appeal was preferred to the High Court and that appeal was dismissed.
Even an application for special leave to appeal to this court was rejected, and the order of the District Court 143 became final.
If, since the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order, the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under article 32 of the Constitution.
This court has rejected the application for special leave to appeal under article 136; and that order cannot be circumvented by resorting to an application for a writ under article 32.
Relief under article 32 for enforcement of a right conferred by ch.
III can be granted only on proof of that right and in fringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under article 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.
The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under article 32 of the Constitution.
The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardian and Wards Act or in a suit in the civil court and not in a petition under article 32 of the Constitution.
In our judgment, the petition is wholly misconceived and must be dismissed with costs payable by the first petitioner personally.
Petition dismissed.

Output:
The first petitioner, who had migrated to West Pakistan, applied to the High Court of Madhya Bharat for a writ of abeas corpus for directions to produce petitioners 2 and 3, his minor children, before the Court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors.
The District judge rejected he application and appointed the second respondent as such Guardian.
The first petitioner appealed to the High Court against the said order of the District judge but that appeal was Dismissed.
He applied for special leave to appeal to this Court but that application was also rejected.
Thereafter the first Petitioner, as natural guardian of petitioners 2 and 3, filed the present petition under article 32 of the Constitution.
His casee in substance was that the interest of the second respondent was adverse to that of the minors, that he had misappropriated their property and that the first respondent, the State of Madhya Bharat, was bound to take steps to protect the property of the minors which it had failed to do and had thus rendered itself liable to make good the loss sustained by the minors in consequence.
Held, that the petition was wholly misconceived, and must be dismissed.
The Court can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution.
Where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and therefore its infringement cannot arise, this Court cannot entertain a petition under that Article for protection of the alleged right.
A claim as to denial of equality before the law or the equal protection of the laws can be made against executive action or against legislative process but not against the decision of a court of competent jurisdiction.
Nor can an order of this Court rejecting an application for special leave under article 136 of the Constitution be circumvented by an application for a writ under article 32.


Input:
vil Appeal No. 215052 of 1980.
From the Judgment and Order dated 28.8.1980 of the Delhi High Court in S.A.O. No. 138 of 1979.
R.F. Nariman, P.H. Parekh and Suhail Dutt for the Appel lants.
Ashok Grover for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals by special leave are from the judgment and order dated 28th of August, 1980 of the High Court of Delhi.
Three appellants, Jai Bhagwan, Pearey Lal and Ganpat Ram, were inducted into premises No. 3240, Kucha Tara Chand, Daryaganj, Delhi by the then land lord, Shri Dina Nath.
The families of the appellants con sisted of about 7 or 8 members per family living in one room each on the ground floor of the said premises.
Shri Pearey Lal, one of the appellants, had one side store room along with the room and Shri Jai Bhagwan had one small tin shed on the first floor.
The appellants were also sharing the ter race.
In 1952 the land and building situated at No. A 6;25, at Krishna Nagar, Delhi was purchased by one Nathu Ram, father of the appellant Ganpat Ram and Pearey Lal together with the appellant Jai Bhagwan, his son in law.
The building consist ed of two room, two kitchens and a Barsati.
Three applications were made by the appellants under Order 41 Rule 2 of C.P.C. on or about 4th of August, 1980.
The High Court pronounced its judgment without disposing of these applications on or about 27th of August, 1980 and proceeded to hold against the appellants on the basis of an adverse inference that the three appellants had built the house in Krishna Nagar, whereas a copy of the sale deed 543 would show that the said house was bought and not built that by Nathu Ram and Jai Bhagwan, and were not by the two of the three appellants.
In 1958 Ganpat Ram was allotted a D.D.A. Quarter No. 3 7 at Village Seelampur, Shahdara.
By a notification dated 28th of May, 1966.
Village Seelampur, Shahdara was declared to be an urban area.
By Notification dated 27th March, 1979 issued under section 1(2) of the Delhi Rent Act (hereinafter called 'the Act ') this village was subjected to the provisions of the said Act.
During 1967 68 one Mrs. Sushila Devi was inducted into the quarter at Seelampur, consisting of a room, a kitchen and a bath room.
This lady had applied for the allotment of the said quarter in her name sometime in 1974.
On 20th of July.
the authorities, in fact, allotted the said quarter to her.
In 1965 70 Ms. Dev Karan and Kul Bhushan being the sons of Pearey Lal had been occu pying the portion of the house at Krishna Nagar together with their family members and grand father, Nathu Ram.
Nathu Ram died in 1969.
The other portion was occupied by one Kalu Ram and his family members being brother of Jai BhagWan.
There are 18 people residing at the relevant time in the said house.
The present landlord, the respondent herein, purchased the suit premises from the erstwhile landlord, Dina Nath on or about 9th April, 1973.
On or about 28th of September, 1973, the present landlord applied to the compe tent authority under the Slum Act for permission to evict the appellants from the said premises.
On 12th of December, 1974 the competent authority under the Slum Act granted permission to the landlord to proceed in eviction against the three appellants.
On or about the 16th of April, 1975, the respondent herein filed three eviction suits against the appellants on the grounds contained in section 14(1)(a),(h) & (j) of the Act.
On 31st of January, 1977, it was held by the Additional Rent Controller, Delhi that the ground under section 14(1)(h) was made out against all the three appel lants.
The ground under section 14(1)(a) was also upheld but the appellants were asked to deposit arrears of rent within a month from the date of the order so as to avail the bene fit of section 15(1) of the Rent Act which the appellants availed of.
On or about 24th April, 1979, the Rent Control Tribunal confirmed the decree in ejectment on appeal under section 14(1)(h) of the Act against the three appellants.
On further appeal the High Court construed section 14(1)(h) of the Act to mean that a Building constructed by the tenant which is outside the purview of the Delhi Rent Act on the date of the application for ejectment, was yet within sec tion 14(1)(h) and the tenant was liable to be ejected.
544 In appeal before us, it was submitted on behalf of the appellants that in none of the three judgments, there was any finding as to the suitability of the residence that is built, allotted or of which the tenant was acquired vacant possession of.
None of the courts has re examined the size of the space, the distance and inconvenience that might be caused, the number of persons in the tenants ' families or the state of residence built or allotted by or to the ten ants.
Aggrieved by the aforesaid judgment of the High Court dated 28th August, 1980, the tenants have come up in appeal.
In this case the learned Addl.
Rent Controller had passed an order of eviction under clause (h) of section 14(1) of the said Act against all the three appellants as mentioned before.
The said decision was upheld by the Tribu nal.
It has been held by the courts below that the three tenants have built and acquired vacant possession of the residential house at A 6/25 Krishna Nagar, Lal Quarter, Delhi.
It was held that Ganpat Ram, one of the tenants appellants has been allotted residential quarter at 317, Seelampur III, Shahdara, Delhi.
Before the High Court the judgments of the Rent Controller as well as the Tribunal were challenged on the grounds, inter alia, that none of the three tenants had built or acquired vacant possession of the residential house No. A 6 25, Krishna Nagar, near Lal Quar ter, Delhi.
It was further submitted that in any case the respondent landlady was not entitled to claim eviction under clause (h) on the grounds of waiver and laches.
Counsel submitted before the High Court that Ganpat Ram had not been allotted the quarter at Seelampur and that in any case he was not in possession of the same.
He further submitted that the Act was not applicable to the quarter alleged to have been allotted to Ganpat Ram, tenant and as such grounds covered by clause (h) were not available to the landlady.
Lastly it was submitted that all the three ingredients mentioned in clause (h) of section 14 of the Act were ap plicable to the landlord.
Section 14 of the Act is in Chap ter III and controls eviction of the tenants.
The said section stipulates that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against the tenant.
Clause (h) deals with the situation where the tenant has, whether before or after the commence ment of the Act, built or acquired vacant possession of or has been allotted a residence.
The High Court noted the apparent purpose of providing clause (h) of sub section (1) of section 14.
The High Court was of the opinion that on account of rapid growth of popu lation of Delhi, landlords were 545 tempted to terminate the tenancies of the existing tenants and ask for their eviction in order to let out the premises to the pew tenants at high rents.
Rent Control Legislation for Delhi and New Delhi was passed for the first time during the second world war and since then there has been Rent Control Legislation applicable to various urban areas in the Union Territory of Delhi.
The Rent Control Act was enacted to provide for the control of rents and evictions.
The object of clause (h), as is apparent, is not to allow the tenant more than one residence in Delhi.
Therefore, it provided that in case that tenant builds a residence, the landlord could get his house vacated.
It also provided that if the tenant acquires vacant possession of any other resi dence, he is not protected.
Lastly, it also stipulated that if a residential premises has been allotted to a tenant, he is not entitled to retain the premises taken on rent by him.
In the instant case, on the three causes on which the land lord can claim eviction were present against the tenant, the High Court held that these causes are not joint.
These need not be conjointly proved or established.
These were in the alternative.
Therefore, if the landlord is successful in proving any one of the causes, he is entitled to an order of eviction against the tenant.
Counsel for the appellants sought to urge before the High Court that if a tenant built a house, he must acquire its vacant possession before he can be evicted under clause (h).
Similarly, it was submitted that if residential accommodation was allotted to a tenant then he must obtain vacant possession of the same.
The word 'or ' showed, according to the High Court, that these were different circumstances in which tenant was liable to be evicted.
These were (i) if the tenant had built a new resi dence, or (ii) if he had acquired vacant possession of it or (iii) if he had been allotted a residence.
The words 'built ' and 'allotted ' do not mean that after building residence or after allotment of a residence, the tenant must also acquire its possession.
If a tenant builds a house and does not occupy it, he is liable to eviction, according to the High Court.
Similarly, if a residence is allotted to a tenant, but he does not occupy it and allows others to occupy the same, he is not protected, according to the High Court.
The Act provides that building of a house by tenant or allotment of residence to him is a ground of eviction available to the landlord against his tenant.
The learned Judge of the High Court was of the view that it is not necessary for a landlord to prove either that the tenant has built and acquired vacant possession of the building or that he has been allotted and taken possession of the allot ted premises.
The landlady in the eviction application alleged that the tenants 546 had built and acquired vacant possession of a residential house at A 6 25, Krishna Nagar, near Lal Quarter, Delhi.
It was denied by all the tenants but the Controller and the Tribunal on the basis of the evidence on record concluded that the three tenants have built and have also acquired vacant possession of the said residential premises.
It was further held that the relatives of the three tenants were in actual physical possession of the said house at Krishna Nagar.
It transpired from the record that Dev Karan.
Kul Bhushan and Kalu Ram were admittedly related to the three tenants and were in occupation of house at Krishna Nagar as licensee of the three appellants tenants.
This is a finding of fact and could not have been challenged in second appeal before the High Court.
Learned counsel for the tenants then submitted before the High Court that the landlady was a purchaser of the property from one Dina Nath and she and her vendor had also been aware that the tenants were owners of the house in Krishna Nagar.
On account of this knowledge it was argued that the landlady respondent had waived her rights under clause (h) of section 14(1) of the Act.
The High Court found that there was no substance in the argument.
There was no plea that the landlady ever waived or was guilty of laches.
No evidence was led by the parties.
The facts were that the respondent landlady purchased this property from Dina Nath on 9th of April, 1973.
There was nothing on record to show that Dina Nath was ever aware of the fact about building or acquiring a house at Krishna Nagar by the three tenants.
The landlady on the 28th September, 1973 filed applications against the three tenants under section 19 of the Slum Area (Improvement & Clearance) Act, 1956 seeking permission to institute eviction proceedings.
The required permission was granted by the competent authority on 12th of December.
1974 and the present eviction application out of which this appeal arises was filed on 16th of April, 1975.
Therefore, there was no question of laches on the part of the landlady.
She filed an application for permission after about six months from the date of purchase and she filed an eviction application after about four months from the date of the grant of permission by the Slum authority.
The landlady claimed eviction of Ganpat Ram, appellant tenant, on another ground also, namely, that he has been allotted residential quarter at 317.
Seelampur III.
Shahda ra. Delhi.
This fact was denied by the tenant.
A.W. 1 Naresh Chand, an Official of the D.D.A. brought the official record relating to the allotment of this quarter.
It was proved that the said quarter was allotted to him in 1958 and that possession was delivered to him.
It was deposed that it was residential in nature.
On behalf of the tenants, it was submitted before the High 547 Court that the same was in possession of Sushila Devi.
Sushila Devi had appeared as a witness.
She admitted that the said quarter was allotted to the tenant, Ganpat Ram, the appellant.
After allotment Ganpat Ram was entitled to occupy the allotted accommodation and possession was delivered to him.
According to the said witness, he was not now in possession and somebody else was in possession.
Evidence was adduced on behalf of the tenant that he was not in possession and somebody else was in possession.
According to the High Court, if once the condition stipulated in clause (h) was fulfilled, by the tenant, he was disentitled to protection under the Act He cannot thereafter claim that he should be protected.
We are of the opinion that the High Court was right.
It was further alleged that Seelampur area known as Seelampur where the allotted quarter was situated, was not governed by the Act and therefore ground covered by clause (h) was not available to the landlady.
There is no plea and the High Court found taking into consideration all the relevant materials that there was no evidence to show that it was situated within the area which was not governed by the Act.
We are in agreement with the learned Judge of the High Court.
Before us in appeal, however, several points were sought to be urged.
It was urged that on a proper construction, there must be a suitable residence, that is to say, a good substitute for the petitioners or the landlord and a reason able substitute.
Reliance was placed on the decision of this Court in Goppulal vs Thakurji Shriji Dwarkadheeshji and another, [ ; There the Court was concerned with the sub letting before the coming into force of the Act and was concerned with section 13(1)(e) of the relevant Act which used the expression "has sublet".
The present perfect tense contemplated a completed event connected in some way with the present time.
The words took within their sweep any sub letting which was made in the past and had continued up to the present time.
Therefore, this Court held that it did not matter that the sub letting was either before or after the Act came into force.
The Delhi High Court in the case of Ved Prakash vs Chunilal, [1971] Delhi Law Times Vol. 7, 59, where the expression 'has ' in the Delhi Rent Control Act.
1958 in section 14(1)(h) came up for consideration.
It was held that the word 'has in clause (h) carries in itself the force of the present tense.
It has therefore to be interpreted in terms of the words employed in the opening part of the proviso which are to the 548 effect that the Controller may on an application made to him in the prescribed manner make an order for the recovery of the premises and those words meant that on the date of the application the tenant must be having a residence either because he might have built the same or might have acquired vacant possession thereof or it might have been allotted to him.
Either of the three situations must be there on the date of the application.
If that is not so, then clause (h) of the proviso to sub section (1) of section 14 of the Act would have no application.
According to the learned single Judge of the Delhi High Court, the word 'has ' applied with the same force and veloc ity to the words 'built ', 'acquired vacant possession of ' and 'been allotted '.
The last words 'a residence ' again relate to all the three contingencies.
The word 'has ' con tains in itself the meaning of presently possessing some thing.
The ordinary English dictionaries while giving the meaning of word 'has ' refer to the word 'have ', which in turn means 'to hold ', 'possess '.
The words 'has built ' or 'has acquired ' or 'has been allotted ' clearly mean that the tenant has already built, acquired or been allotted the residence to which he can move and that on the date of the application for his eviction his right to reside therein exists.
It was therefore held that the words as they stood associated with each other in clause (h) lead to the only conclusion that as on the date of the application the tenant must be possessing a clear right to reside in some other premises than the tenancy premises as a matter of his own rightful choice either because he may have built such premises or acquired vacant possession thereof or the same may have been allotted to him.
In Smt.
Revti Devi vs Kishan Lal, [1970] Rent Control Reporter Vol.
II, 71 Deshpande, J. of the Delhi High Court had occasion to construe section 14(1)(h) of the Act.
The landlord there applied for eviction of his tenant on the ground that the tenant had acquired vacant possession of another residence within the meaning of section 14(1)(h) of the Act.
The tenant defended that he had not acquired any residence and that the alleged residence had in fact been acquired by his wife and his sister in law jointly.
The Rent Control Tribunal held that the view that under section 14(1)(h) the tenant was liable to be evicted only if he himself had acquired the vacant possession of another resi dence and not by any other member of his family including the wife.
The question which came up before the Court for decision was whether the acquisition of a separate residence by the wife of the 549 tenant was sufficient ground for the eviction of the tenant by the landlord under proviso (h) of sub section (1) of section 14: That, however, is not the question here.
In Naidar Mal vs Ugar Sain Jain and another, A.I.R. 1966 Punjab 509, the court had to construe, inter alia, section 13(1)(h) of the Delhi and Ajmer Rent Control Act, 1952.
There under section 13(1)(h) of the said Act in order to be liable for eviction, the tenant must have built a suitable residence.
The Court was of the opinion that merely because the tenant had built a house, would not be a ground for ejectment within the meaning of section 13(1)(h).
The words 'suitable residence ' must be read with all the terms namely 'built ' 'acquired vacant possession of ' or 'been allotted '.
Although the onus to prove facts within the special knowl edge of a party must be on him, a landlord bringing a suit for eviction under section 13(1)(h) of the said Act must first allege the existence of grounds entitling him to a judgment.
The residence of the tenant must be suitable one.
In Siri Chand vs Jot Ram, (Punjab Law Reporter Vol. LXIII, 1961 at page 915), the Punjab High Court had to construe the Delhi and Ajmer Rent Control Act, 1952 and it was held that on the date of the suit for ejectment of the tenant, in order to succeed, all that the landlord had to show was that he was the landlord and secondly.
, that de fendant was his tenant and thirdly the tenant has, whether before or after the commencement of the Delhi and Ajmer Rent Control Act, either built a suitable residence, or been allotted a suitable residence.
The decision of the Delhi High Court in Govindji Khera vs Padma Bhatia Attorney, [1972] Rent Control Reporter, Vol 4. 195 to which our attention was drawn, does not advance the case any further.
Before we discuss the other aspect the result of the several decisions to which reference has been made above, indicate that the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence.
It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts.
The other aspect is that apart from the question 550 of limitation to which we shall briefly refer is that the landlord must be quick in taking his action after the accru al of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant.
In the light of these, we have now to examine whether the suit in the instant case was barred by the lapse of time.
But quite apart from the suit being barred by lapse of time, this is a beneficial legislation, beneficial to both the landlord and the tenant.
It protects the tenant against unreasonable eviction and exorbitant rent.
It also ensures certain limit ed rights to the landlord to recover possession on stated contingencies.
The next aspect of the matter is which article of the would be applicable.
Reference was made to Article 66 and Article 67 of the (hereinafter called the ) which stipulates that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
Article 67 stipulates a period of twelve years when the tenancy is determined.
Article 113 deals with suit for which no period of limitation is provided elsewhere in this Schedule.
On the facts of this case it is clear that Article 66 would apply because no determination in this case is necessary and that is well settled now.
Determination by notice under section 106 of the Transfer of Property Act is no longer necessary.
It is well settled that time begins to run from the date of the knowledge.
See in this connection the decision of Harbans Singh and another vs Custodian of Evacuee Property 'P ' Block and others, A. I. R. 1970 Delhi 82 though that was a case under a different statute and dealt with a different article.
See also Ujagar Singh vs Likha Singh and another, at page 30.
The Division Bench of the Punjab and Haryana High Court in Somdass (deceased).
v Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Re porter Vol.
85., 184 held that in a suit for possession under Article 113 of the , material date is one on which the right to sue for possession arises.
In K.V. Ayyaswami Pathar and another vs
M.R. Ry.
Manavik rama Zamorin Rajah and others, A.I.R. 1930 Madras 430, it was held that where a claim is based upon a forfeiture of a lease by reason of alienation of the demised land and noth ing else, the article applicable for the purpose of limita tion was clearly Article 143 and the limitation commences to run from the date of the alienation.
Here 551 accrual of the right of the landlord is not challenged.
The knowledge is indisputably in 1973 looked at from any point of view.
There is no question of limitation in this case.
In the premises, we are of the view that the High Court was right and the appeals must fail and are accordingly dismissed with costs.
N.P.V. Appeals dis missed.

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The respondent purchased the suit premises in April, 1973 and in September, 1973 applied to the Competent Author ity under the Slum Area (Improvement and Clearance) Act, 1956 for permission to evict the appellants who were induct ed into the premises by the erstwhile landlord.
The permis sion was granted in December, 1974 and three eviction suits were filed in April, 1975 on the grounds contained in Sec tion 14(1)(a), (h) and (j) of the Delhi Rent Control Act.
1958 and the Additional Rent Controller held that the ground under Section 14(1)(h) was made out against all the three appellants.
The Rent Control Tribunal confirmed the decree.
Before the High Court in revision, it was submitted that when the landlady purchased the property she and her vendor had also been aware that the tenants owned a house and that on account of this knowledge the respondent had waived her rights under clause (h) of Section 14(1) of the Act, that if a tenant built a house or has been allotted a residential accommodation, he must acquire/obtain vacant possession before he was evicted under clause (h), and that the area where the allotted quarter was situated was not governed by the Act 540 and, therefore, the ground covered by clause (h) was not available to the landlady.
The High Court construed Section 14(1)(h) of the Act to mean that a building constructed by the tenant which is outside the purview of the Delhi Rent Control Act on the date of application for ejectment, was yet within Section 14(1)(h), and held that the word 'or ' showed the different circumstances in which a tenant was liable to be evicted, that it was not necessary for a landlord to prove either that the tenant had built a house and acquired vacant pos session of the building or that he had been allotted and taken possession of the allotted premises, and that there was no substance in the argument advanced by the tenants that on account of the knowledge of the landlady that the tenants owned a house, she had waived her rights under clause (h) of Section 14(1) of the Act, and dismissed the Revision Petitions.
In the appeals, it was submitted that there must be a suitable residence, one which is a good and a reasonable substitute for the appellants or the landlord before evic tion could be ordered under Section 14(1)(h) of the Act.
Dismissing the appeals by special leave, this Court, HELD: 1.
The Rent Control Act is a beneficial legisla tion to both the landlord and the tenant.
It protects the tenant against unreasonable eviction and exorbitant rent.
It also ensures certain limited rights to the landlord to recover possession in stated contingencies.
[550B C] 2.1 The words 'has built ' or 'has acquired ' or 'has been allotted ' in clause (h) of Section 14(1) clearly mean that the tenant has already built, acquired or been allotted the residence to which he can move and that on the date of the application for his eviction, his right to reside therein exists.
Therefore, the High Court was right in holding that the words as they stood associated with each other in clause (h) lead to the only conclusion that as on the date of application the tenant must be possessing a clear right to reside in some other premises than the tenancy premises as a matter of his own rightful choice either because he may have built such premises or acquired vacant possession thereof or the same may have been allotted to him.
The words 'built ' and 'allotted ' did not mean that after building a residence or after allotment of a residence the tenant must also acquire its possession.
[548D F] 2.2 The landlord, in order to be entitled to evict the tenant, must 541 establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence.
It is essential that the three ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts.
[549F H] 2.3 The landlord must be quick in taking his action after the accrual of the cause of action, and if by his inaction, the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant.
[550A B] 2.4 The High Court was right in holding that once the condition stipulated in clause (h) was fulfilled by the tenant, he was disentitled to protection.
He cannot, there fore, claim that he should he protected.
[547B C] 3.1 Article 66 of the stipulated that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
[550C D] 3.2 On the facts of this case it is clear that Article 66 would apply in this case because no determination is necessary, as determination by notice under Section 106 of the Transfer of Property Act is no longer necessary.
[550D E] In the instant case, the landlady purchased the property on April, 9, 1973.
She filed an application for permission after about six months from the date of purchase, and filed eviction application after about four months from the date of the grant of the permission by the Slum Authority.
Time begins to run from the date of the knowledge.
Knowledge in this case is indisputably in 1973 looked at from any point of view.
There is, therefore, no question of limitation in this case.
[55OH; 551A] Ved Prakash vs Chunilal, [1971] Delhi Law Times Vol. 7, 59; Smt Revti Devi vs Kishan Lal, [1970] Rent Control Re porter Vol.
II, 71; Naidar Mal vs Ugar Sain Jain and anoth er.
A.I.R. 1966 Punjab 509; Siri Chand vs Jot Ram, Punjab Law Reporter Vol.
LXIII, 1961, 915; Govindji Khera vs Padma Bhatia Attorney, [1972] Rent Control Repor 542 ter Vol.
4, 195: Harbans Singh and another vs Custodian of Evacuee Property 'P ' Block and others, A.I.R. 1970 Delhi 82; Ujagar Singh vs Likha Singh and another, A.I.R. 1941 Allaha bad 28, 30; Somdass (deceased) vs Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Reporter Vol. 85, 184 and K.V. Ayyaswami Pathar and another vs M.R. Ry.
Manavikrama Zamorin Rajah and others, A.I.R. 1930 Madras 430, referred to.


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ing been subsequently filled in by introducing section 132A of the Act with effect from October, 1975, it will be open to the income tax authorities to approach the appropriate authorities to realise any amount of money or to recover any books of account or documents in accordance with the law.
[307D E] & CIVIL APPELLATE JURISDICTION: Civil Appeal No.1666 (NT) of 1974.
297 From the judgment and order dated 26th November, 1973 of the A Punjab & Haryana High Court in Civil Writ No. 3355 of 1972.
S.C. Manchanda, M.B. Rai and Ms. A. Subhashini for the Appellants.
Harbans Singh for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MIJKHARJI, J.
This appeal is by special leave from a judgment and order of Punjab and Haryana High Court in an application under article 226 of the Constitution.
The judgment in question is reported in By a petition under articles 226 and 227 of the Constitution the order of the Income Tax Department dated 10th May, 1972, passed under section 132 of the Income tax Act, 1961 (hereinafter called the 'Act ') and Rule 112(II) of the Income tax Rules, 1962 (hereinafter called the 'Rules ') was challenged.
The division bench by the impugned judgment allowed the petition, quashed the search and seizure warrants and directed the Income Tax Department to return the moneys to the Customs authorities and gave certain consequential directions.
In order to appreciate the points involved, it is necessary to refer to certain facts as found by the High Court.
On 23rd August, 1970 the petitioner before the High Court, who is the respondent here, was travelling by car, alleged to be belonging to his brother from Ambala to Batala.
He was intercepted near the Beas river by the Customs officer and was forcibly taken along with the driver, Gurnam Singh, to the Customs House at Amritsar.
The said petitioner in that application was searched along with his driver and the Customs authorities took into possesion Rs.93,500 in Indian currency, 10 gold sovereigns and the car.
On the 24th August, 1970, the petitioner was produced before a Duty Magistrate at Amritsar and was granted bail.
In the meantime, the Customs department took proceedings under section 110(2) of the and extended the period of issuing of the show cause notice under section 124 of the .
These proceedings were challenged in the High Court by Writ Petition and the order of the Customs authority under section 110(2) was quashed by an order of the learned single judge of the High Court on 24th April, 1972.
The appeal against that decision was dismissed by the division bench along with this petition by the High Court.
After the said judgment of the learned single judge, the respondent had approached the Customs authorities for the return of H 298 the money and the car.
The gold sovereigns were not demanded be cause according to the said petitioner, these did not belong to him.
He had been directed to come on the following day to get back the currency notes and the car.
In the meantime on 12th May, 1972 the Income tax officer, had served the warrant of authorisation dated 10th May, 1972 issued under section 132 of the Act and rule 112(II) of the Rules on the respondent as well as on the Customs department, with the result that only the cash was taken possession of by the income tax authorities.
Thereafter, the respondent filed the petition under articles 226 and 227 of the Constitution before the High Court in respect of which the judgment impugned here was rendered.
It was submitted that the authorisation warrant was illegal, be cause the money was not in his possession but was in the possession of the Customs authorities.
It was secondly urged that the action taken by the Income tax authorities under section 132 of the Act militated the provisions of section 110(2) of the .
The High Court felt that so far as the first contention was concerned, it was concluded by the decision of the said High Court in The Commissioner of Income tax vs Ramesh Chander & Ors., The High Court relied on the following observations at pages 478 479 of the report: "I have come to the conclusion that the search and seizure warrants issued under sub section (1) of section 132 of the Income tax Act were illegal, firstly, because the search and seizure warrants were issued in the name of Ramesh Chander and he was in fact not in possession of either the currency notes or account books, and secondly, the income tax authorities could not seize the currency notes and account books from the police officer who is duty bound to proceed with the case property in accordance with the pro visions of the Code of Criminal Procedure.
" The High Court held that where the amount was seized by the Customs authorities and the seizure was held illegal by the Court, Customs authorities were bound to return the money to the person entitled to it under the relevant provisions of section 110 of the .
The Income tax authorities could not seize such an amount from the Customs authorities under section 132 of the Act.
Moreover, the authorisation was illegal if issued in the name of the person who did not have possession of the article, in respect of which it was issued.
The High Court further held that in the facts and circum 299 stances of the case the order under section 132 of the Act was not Justified.
Therefore, the High Court held that the search and seizure warrants were liable to be quashed and the money returned to the customs department.
The judgment of the High Court is reported in The validity of the judgment is impugned in this appeal.
It is necessary in order to appreciate the contentions urged in this case to refer to the relevant provisions of section 132 of the Act.
Sub section ( I) of section 132 provides as follows: "Search and Seizure (1) Where the Director of Inspection or the Commissioner [or any such Deputy Director of Inspection or Inspecting Assistant Commissioner as may be empowered in this behalf by the Board,] in consequence of information in his possession, has reason to believe that (a) any person to whom a summons under sub section (1) of section 37 of the Indian Income tax Act, 1922 (XI of 1922), or under sub section (1) of section 131 of this Act, or a notice under sub section (4) of section 22 of the Indian Income Tax Act, 1922, or under sub section (1) of section 112 of this Act was issued to produce or cause to be produced any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to any proceeding under the Indian Income tax Act, 1922 (XI of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property [which has not been, or would not be, disclosed] for the purposes of the Indian Income tax Act, 1922 (XI of 1922), or this Act H 300 (hereinafter in this section referred to as the undisclosed income or property), [then, (A) the Director of Inspection or the Commissioner, as the case may be, may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income tax officer, or (B) such Deputy Director of Inspection or Inspecting Assistant Commissioner, as the case may be, may authorise any Assistant Director of Inspection or Income tax officer, (the officer so authorised in all cases being hereinafter referred to as the authorised officer to ) (i) enter and search any [building, place, vessel, vehicle or aircraft] where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iia)search any person who has got out of, or is about to get into, or is in, the building, place, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing;] (iii)seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search; (iv) place mark of identification on any books of ac count or other documents or make or cause to be made extracts or copies therefrom; 301 (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing; " The only other sub section to which reference need be made is sub section (3) which is as follows: B "The authorised officer may, where it is not practicable to seize any such books of account, other document, money bullion, jewellery or other valuable article or thing, serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub section.
" It is not necessary to refer to the other provisions for the present purpose.
But the procedure indicated that if necessary, force may be used for search seizure.
Rule 112 of the said Rules provides the manner in which such search and seizure should be conducted.
On a construction of the section; and the context, in which the words "search", "possession" and "seizure" have been used in the said section and the rules indicate that there cannot be any order in respect of goods or moneys or papers which are in the custody of another department under legal authority.
It is important to note that the expression "possession" has not been defined in the Act.
It may be noted that sub section (3) of section 132 of the Act uses the expression "who is in immediate possession or control thereof".
"Possession" is a word of ambiguous meaning and its legal senses do not always coincide with the popular sense.
Reference may be made to Halsbury 's Laws of England, Vol. 35, 4th Edn.
articles 1111 11267 pages 617 627.
Possession again may not always be synonymous with manual detention or physical retention of the goods or moneys.
It appears to us that when the physical custody of the moneys and goods were with the customs authorities, and that too by a legal sanction and authority to have that custody, it would be improper to contend that possession as used in section 132 of the Act was still with the respondent.
The use of the expression "immediate possession" in sub section 302 (3) of section 132 does not detract from the meaning of possession in the popular sense.
This construction is not unmindful of the fact that in some of the sub sections of section 132 the expressions "retention" and "custody" have been used, but reading these expressions in the context these have been used, it cannot be said that where an authority or a person has retention and custody with the legal sanction behind it, it was not the intention of the legislature to say that he was not in possession as contemplated in section 132 of the Income tax Act, 1961.
In this connection, reference may be made to Burrows Words & Phrases Judicial Dictionary, 4th Edn.
page 306.
All these aspects were discussed by the Calcutta High Court (by one of us, Sabyasachi Mukharji, J singly) in Laxmipat Chororia vs K.K. Ganguli & ors., 82 l.
T.R. 306 (Cal).
This decision was affirmed on appeal and the bench decision of the said Court is reported in 93 I.T 'R. at p. 489.
This aspect of the matter has been clearly dealt with by a judgment of the division bench of the Allahabad High Court in Motilal and ors.
vs Preventive Intelligence officer, Central Excise and Customs, Agra and others, where the judgment was delivered by one of us (R.S. Pathak, J.).
There the Court held that the power conferred under section 132(1) of the Act was contemplated in relation to those cases where the precise location of the article or thing was not known to the Income tax department and therefore, a search was necessary for it, and where it would not be ordinarily yielded over by the person having possession of it.
The view that section 132(3) of the Act would include a case where the location of the article or thing was known and where ordinarily the person holding custody of it would readily deliver it up to the Income tax department was not correct, it was so held by the division bench of the Allahabad High Court.
It was further held that consequently goods in the custody of the Assistant Collector of Customs and Central Excise were not things which could be the subject of an order under section 132(3) of the Act.
Pathak, J. spoke for the division bench there at p. 422 of the report thus: "In my opinion, the power conferred under section 132(1) is contemplated in relation to those cases where the precise location of the article or thing is not known to the income tax department and, therefore, a search must be made for it, and where it will not be ordinarily yielded over by the person having possession of it and, therefore it is necessary to seize it.
If it is only such article or thing which 303 is contemplated by section 132(1) then it is such article or A thing alone which can be the subject of an order under section 132(3).
I am unable to accept the contention on behalf of the Income tax department that section 132(3) will include a case where the location of the article or thing is known and where ordinarily the person holding custody of it will readily deliver it up to the Income tax department.
Such article or thing, I think, requires neither search nor seizure. " Mr. S.C. Manchanda, learned advocate for the revenue, drew our attention to several decisions including the decision in Noor Mohd. Rahimatulla Gillani, vs The Commissioner of Income tax Vidrabha and Marathwada, Nagpur and another, 1976 Taxation Law Reports 688 (Bombay).
In that case, after referring to the views expressed by the division bench of Allahabad High Court and division bench of Punjab and Haryana High Court in the judgment under appeal and the Calcutta High Court, as indicated before, Chandurkar J. Of the Bombay High Court observed as follows: "We are not inclined to accept the submission that no valid authorisation to seize the amount Lying with the Collector of Central Excise and Customs, Nagpur could have been issued under Section 132(1).
The relevant provision in the instant case is to be found in Section 132(1) (c) of the Act and all that is required in order to issue an authorisation under Section 132(1) is that either the Director of Inspection or the Commissioner must have reason to believe that any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Act or the Income tax Act of 1922.
It is the character of money or assets as undisclosed income or property and their possession that gives jurisdiction to issue the authori risation.
Merely because some authority has seized that money or property, its character which is believed to be that of undisclosed income or property does not change.
The seizure of the cash amount of Rs.3.05.530 by the 304 Central Excise Authorities in the instant case no doubt transferred physical possession of that amount from the petitioner to the Central Excise Department, but the legal ownership of that money still continued to be with the petitioner.
As long as that amount was not confiscated or did not become the property of the Central Excise Depart ment by virtue of an order passed under the relevant provision of law if at all any order could be so passed the property or the money did not cease to be that of the petitioner.
Though the Collector of Central Excise and Customs was in possession of the money, since its alleged character of being undisclosed income or property remained unattended the Collector satisfied the description of "any person" being in possession of undisclosed income or property though the property represented the undisclosed income or property of the petitioner himself.
The words used in section 132(1) (c) are "any person".
Such a person may be a person who is in possession of his own undisclosed income or property or a person who is in possession of somebody else 's undisclosed income or property.
The fact that the Collector of Central Excise and Customs happened to be an officer of the Government of India was not relevant because the Income tax Authorities and the Central Excise Authorities were functioning under two separate enactments which created two different liabilities the enforcement of which was entrusted to independent authorities under the law.
Disagreeing, therefore, with the authorities relied upon by the 3 petitioner, we must hold that the authorisation issued even against the Collector of Central Excise and Customs enabling the Income tax officer to seize that amount was a valid authorisation.
In any case, in the instant case, a subsequent order under section 132(3) was already made and even by the order under section 132(5) that amount was directed to be released.
" It is true that the title was not transferred to the Customs authorities by seizure under the .
But in the context.
in which the expressions "possession" and "seizure" have been used, it p cannot be considered to mean that the possession was where the legal title was, physical possession was with the Customs authorities, title Was with the respondent herein.
In this context, the physical posses 305 sion having regard to the language used is relevent and material.
Physical possession was with the Customs authorities when the seizure authorisation was passed.
Therefore, where the exact location of the property was known and there was no need to seize the money, the Income tax department could direct handing over the money to the Income tax authorities or take steps for such direction through appropriate authorities.
In that view of the matter we are unable to sustain the view of Chandurkar, J. as the learned Chief Justice then was of the Bombay High Court.
Mr. Manchanda also drew our attention to the case of Pannalal vs Income Tax officer, B Ward, Chhindwara and ors.
, 93 I.T.R. p.480 (M.P.) where the division bench of the Madhya Pradesh High Court was of the view that an order under section 132(3) could only be passed after an authorisation for search and seizure had been made under section 132(1) of the Act.
The thing in respect of which the order is made must be one regarding which the conditions mentioned in clauses (a), (b) and (c) of section 132 are satisfied.
But there was nothing in the requirements of section 132 to support the view that if the Commissioner has definite knowledge that the books of account, documents, money, bullion, etc., sought to be searched and seized are in the possession of a particular person he cannot issue an authorisation for search and seizure of the same.
In our opinion.
it may be mentioned that if the location was certain, then there was nothing to search or look for.
Madhya Pradesh High Court, however, observed that the expression "has reason to believe" signified that the Commissioner has reason to be satisfied that the things to be searched are in the possession of a particular person.
The object of section 132 was according to the High Court, not merely to get information of the undisclosed income but also to seize the money, bullion, etc.
representing the undisclosed income and to retain.
them for purposes mentioned in section 132(5).
Section 132(1)(C) of the Act did not contain a condition either expressly or impliedly that the thing to be seized should not be in the possession of a person who may willingly part with his possession.
There is no obligation on any one, not even on Government officers of other department, to deliver anything to G the income tax authorities except when the law requires them to do so.
The person authorised by the Commissioner could enter and search any building, break open the lock of any door etc.
But that did not mean that in every case the person authorised by the warrant would have to exercise all those powers in making the search and seizing the thing, according to the High Court.
It was not necessary that an actual 306 search must precede an order under section 132(3) directing a person not to part with articles in his possession.
Section 132(1)(c) did not contemplate that the person who has not disclosed his income or property for the purposes of the Income tax Act should himself be in possession of money, bullion, etc.
representing such income.
Clause (c) spoke of "any person who is in possession" and it did not specifically refer to possession by the person who had not disclosed his income.
All that the clause required was that the money, bullion etc. should be such which represents either wholly or partly income or property which had not been disclosed for purposes of the Income tax Act and such money, bullion, etc.
should be in the possession of a person.
This construction was supported by the use of words "immediate possession" in section 132(3) of the Act.
This was the view of the High Court.
There an order under section 132(3) was passed by the Commissioner of Income tax on the Collector of Customs and Central Excise in respect of currency notes of the value of Rs.2,02.500 belonging to a firm, which the Collector was holding under the Gold Control Act and which, as no offence was committed under that Act, the Collector had ordered to be released.
It was also held by the High Court that the Collector was under a legal obligation to return the currency notes to the firm after the proceedings under the Gold Control Act had been finalised.
The power of the Collector was only to retain the currency notes for a limited period.
It could be held that the currency notes were held by the Collector for and on behalf of the firm and the order passed under section 132 was valid.
For the reasons mentioned hereinbefore, we are unable to sustain that view of the High Court.
As mentioned before though legal title might have been with the person whose income was sought to be taxed the physical possession was with the Customs authorities.
Our attention was drawn to a bench decision of the Madras High Court where similar view was taken in Gulab and Company and Anr.
vs Superintendent of Central Excise (Preventive) Trichy, and ors.
For the reasons we have indicated hereinbefore, we are also unable to sustain this view.
The Kerala High Court in the case of Assainar and Anr.
vs Income tax Officer, Calicut and on,., also accepted this view.
We are, for the aforesaid reasons, unable to sustain this view with respect.
The High Court observed that the word "search" has varied meanings and it should be given the general meanings "to look for" or "seek" which are also well known.
But in the context the expression "seizure" and in the context 307 the expression "search" where the location of the property was known A to the Government, we are of the opinion that it could not be said that one government department could search any other government department, and seize those documents.
Relying on the decision of the Allahabad High Court in Motilal 's case (supra) as well as the decision of the Calcutta High Court in Laxmipat 's case (supra), the learned single judge of the Punjab and Haryana High Court in Ramesh Chander vs Commissioner of Income Tax (supra) held that the word "seizure" implied forcibly taking from the owner or who has the possession and who was unwilling to part with the possession.
In that case custody was with the police and it would be inappropriate to accept the position that the income tax department which was another department of the Union of India had to be armed with authority to seize from the unwilling persons.
We are in agreement with these views of the learned single judge.
This view of the learned single judge has been confirmed in the judgment of the division bench, already referred to hereinbefore (reported in 93 I.T.R. p. 450).
The lacuna in law has subsequently been filled in by 132A of the Act with effect from October, 1975.
In the view of the law as it stood at the relevant time, we are unable to sustain the challenge to the order, impugned in this appeal.
The appeal, therefore, fails and is accordingly dismissed with the . observations that it will be open to the Income tax authorities to approach the appropriate authorities to realise any amount of money or to recover any books of account or documents in accordance with law.
In the facts and the circumstances of the case, parties will pay and bear their respective costs.
S.R. Appeal dismissed.

Output:
On 23rd August, 1970, when the respondent was travelling by car, alleged to be belonging to his brother, from Ambala to Batala, the Customs officer intercepted him near the Beas river and forcibly taken along with the driver, Gurunam Singh to the Customs House at Amritsar.
The respondent along with the driver was searched and the customs authorities took into possession Rs.33,500 in Indian currency, 10 gold sovereigns and the car in which he travelled.
The Customs authorities, thereupon initiated departmental proceedings under section 110(II) of the and extended the period of issuing of the show cause notice under section 124 of the .
These proceedings were quashed by an order of the Learned Single Judge of the High Court of Punjab on 24th April, 1372 following an earlier decision of that Court.
After the said judgment, the respondent approached the customs authorities for the return of the money and the car on 11.5.1972.
The gold sovereigns were not demanded because ac cording to the respondent these did not belong to him.
He had been directed to come on the following day to get back the currency notes and the car.
On the next day, however the Income Tax officer served the warrant of authorisation dated 10th May, 1972 issued under section 132 of the Income Tax Act, read with Rule 112(II) of the Rules on the respondent as well as on the customs department with the result the cash was taken possession of by the Income Tax authorities.
Thereafter 295 the respondent filed another writ petition under Article 226 and 227 of A the Constitution.
The customs authorities also filed an appeal against the decision of the Single Judge dated 24th April, 1972.
The writ petition and the appeal were heard together by a Division Bench of the Punjab High Court.
Dismissing the appeal and allowing the writ petition the High Court held that where the amount was seized by the customs authorities and the seizure was held illegal by the Court customs authorities were bound to return the money to the person entitled to it under the relevant provisions of section 110 of the ; that the Income Tax authorities could not seize such an amount from the customs authorities under section 132 of the Income Tax Act and authorisation of search and seizure was illegal if issued in the name of the person who did not have possession of the Article in respect of which it was issued.
Hence this appeal by the revenue by special leave.
Dismissing the appeal, the Court, ^ HELD: 1.1 on a construction of section 132 of Income Tax Act, 1961 and the context, in which the words "search", "possession", and "seizure" have been used in the said section and the rules indicate that there cannot be any order in respect of goods or moneys or papers which are in the custody of another department under legal authority where the location of the property was known to the Government one government department could not search another department and seize them.
[301E F] 1.2 Sub Section (3) of section 132 of the Act uses the expression "who is in immediate possession or control thereof".
"Possession" is a word of ambiguous meaning and its legal senses do not always coincide with the popular sense.
Possession again may not always be synonymous with manual detention or physical retention of the goods or moneys.
When the physical custody of the moneys and goods were with the customs authorities, and that too by a legal sanction and authority to have that custody, it cannot be said that possession as used in section 132 of the Act was still with the respondent Tarsem Kumar.
[30 1F H] 1.3 Reading the expressions "retention" and "custody" in some of the sub sections of section 132 in the context these have been used, it cannot be said, that where an authority or a person has retention and custody with the legal sanction behind it, it was not the intention of the legislature to say that he was not in possession as contemplated in section 132 of the Income Tax Act, 1961.
[302A B] 296 The Commissioner of Income Tax vs Ramesh Chander & Ors.
, PunJab; Tarsem Kumar & Anr.
vs The Commissioner of Income Tax, Haryana, Himachal Pradesh & Delhi & ors.
, ; Laxmipat Chororia vs K.K. Ganguli Motilal and ors.
vs Preventive Intelligence officer, Central Excise and Customs, Agra & Ors., Allahabad, distinguished and partly overruled.
Noor Mohd. Rahimatulla Gillani vs The Commissioner of Income tax Vidrabha and Marathwada, Nagpurand Anr., [1976] Taxation Law Reports, 688, Bombay; Pannalal vs Income Tax officer, Ward.
Chhindwara and ors.
, 93 ITR p. 480 Madhya Pradesh; Gulab and Company and Anr.
vs Superintendent of Central Excise (Preventive) Trichy, and ors.
, Madras; Assainar and Anr.
vs Income tax officer, Calicut and ors.
, Kerala, overruled.
1.4 It is true that in the instant case, the title was not transferred to the Customs authorities by seizure under the .
But in the context, in which the expressions "possession" and "seizure" have been used, it cannot be considered to mean that the possession was where the legal title was, physical possession was with the Customs authorities, title was with the respondent herein.
In this context, the physical possession having regard to the language used is relevant and material.
Physical possession was with the Customs authorities when the seizure authorisation was passed.
Therefore, where the exact location of the property was known and there was no need to seize the money, the Income tax department could direct handing over the money to the Income tax authorities or take steps for such direction through appropriate authorities and not by resort to section 132 of the Income Tax Act.
This is so because if the location was certain then there was nothing to search or look for.
[304G H; 305A B]