Nagraj Vs. State of Mysore [1963] INSC
137 (8 May 1963)
08/05/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1964 AIR 269 1964 SCR (3) 671
CITATOR INFO:
R 1969 SC 686 (6)
ACT:
Sanction to prosecute-Sub-Inspector of Police-Trial
for offence alleged in course of duties-Evidence in counter case, if can be considered--Circumstances
where sanction is necessary-Code of Criminal Procedure, 1898 (Act V of 1898),
ss. 127-132, 197.-Mysore Police Act, 1908 (5 of 1908), -Rs. 4 (c), 8, 26 (1)
and (3).
HEADNOTE:
The appellant, a Sub-Inspector of Police in
Mysore State, was committed to Sessions Court for trial on the complaint of K.
K alleged that the appellant and another person had severely beaten T, and that
the appellant, when forcibly taking away T, and requested by K to excuse T,
wantonly fired on two persons. The appellant's case, on which his counter case
is based, is that while he and a constable, after arresting, were taking T to
the P.-)lice Station, 20 or 30 persons attacked them and rescued T. Not heeding
to appellant's advice to desist from violence. the crowed asked him to wait
till K came. On appellant's refusal, the crowd threatened. just then K came.
Apprehending danger to their lives, the appellant first fired in the air, but
when the people pelted stones and grappled him, two shots went off injuring two
persons. K snatched his revolver and two mazahars. Prepared by the appellant in
T's case, and the people beat him. These persons have also been committed to
the Sesions Court for trial. The Sesions Judge made the reference for quashing
the commitment of the appellant, holding that the Magistrate could not have
taken cognizance of the offences without the sanction of the State Government
in view of the provisions of ss. 132 and 197 Code of Criminal Procedure. The
High Court rejected the reference of the Sessions Judge for quashing the
commitment order. On appeal by special leave, the appellant contended that (1)
the appellant could be dismissed by the State Government alone and, therefore,
sanction under s. 197 Code of Criminal Procedure was necessary ; (2) a police
officer cannot be prosecuted without a sanction for an offence which the police
officer alleges took place in course of his duty ;
(3) when a case and 672 a counter case are
both committed to Sessions Court, it should be inferred that the appellant has
prima facie established his version of the incident and that his Producing a
copy of the committal order in the counter case is sufficient for holding that
sanction under s. 132 Code of Criminal Procedure was necessary, and (4) it is
not necessary for the police officer to prove conclusively that he was
dispersing an un law full assembly before he can raise the plea of want of
sanction.
Hold that (1) in view of the provisions of
ss. 4 (C), 8 and sub-ss. (1) & (3) of s. 26 of the Mysore Police Act, the
Inspector-General of Police can dismiss Sub-Inspector and therefore, no
sanction of the State Government for prosecution of the appellant was necessary
even if he had committed the offences alleged while acting or purporting to act
in discharge of his official duty ;
(2) the court can consider the necessity of
sanction only when from the evidence recorded in the proceedings or the
circumstances of the case it be possible to hold either definitely that the
alleged offence was committed or was probably committed in connection with
action under ss. 127 and 128 of the Code. If at any stage of the proceedings it
'appears to the court that the action of the police officer complained of comes
within the provisions of ss. 127 and 128 of the Code, the court should hold
that sanction was necessary. The jurisdiction of the court to proceed with the
complaint emanates from the allegations made in the complaint and not from what
is alleged by the accused or what is finally established in the case as a
result of the evidence recorded.
Majajoj Dobey v. H. C. Bhari, [1955] 2 S. C.
R. 925, referred to.
(3) in the present case it does not appear
from the record that the evidence prima facie establishes the appellant's
contention that be could not be prosecuted without the sanction of the
Government. This question is to be decided on the evidence in this case and not
on the basis of evidence and inferences drawn in the other case ;
(4) in order that the appellant can get the
benefit of the provisions of s. 132 of the Code, he has to establish that (i)
there was an unlawful assembly likely to cause disturbance of public peace,
(ii) the assembly was commanded to disperse,(iii) the assembly did not disperse
on the command or, if no command had been given, its conduct had shown a
determination not to disperse; and (iv) in the circumstances he had 673 used
force against the members of such assembly. This he has to do in the same
manner as an accused has to establish an exception he pleads in his defence.
Therefore, the accused in the present case has to show to the court that the
alleged offences were committed during the performance of his duties and on his
so doing the court would hold that the complaint could not proceed without the
sanction of the Government under s. 132 of the Code.
Held further, that if the court decides that
s. 132 of the Code applies to the case the proceedings on the complaint
instituted without the sanction would be void and the proper order for it to
pass would be that the proceeding be dropped and the complaint rejected.
CRIMINAL APPELLANT JURISDICTION: Criminal
Appeal No. 172 of 1962.
Appeal by special leave from the judgment and
order dated March 7, 1962, of the Mysore High Court in Criminal Revision Case
No. 100 of 1961.
B. Gopalakrishnan, for the appellant.
B. R. L. Iyengar and P. D. Menon, for the
respondent.
1963. May 8. The judgment of the Court was
delivered by RAGHUBAR DAYAL J.-This appeal by special leave is directed against
the order of the High Court of Mysore rejecting the reference by the Sessions
Judge, Shimoga Division, recommending the quashing of the commitment order of
the Magistrate committing the accused to the Sessions for trial of offences under
ss. 307 and 326, I.P.C., on the ground that the Magistrate could not have taken
cognizance of the offences without the sanction of the State Government in view
of the provisions of ss. 132 and 197 of the Code of Criminal Procedure.
The case against the appellant was started on
the complaint of one Kenchappa who alleged that 674 the Sub-Inspector and
another person had severely beaten one Thimma and that the Sub-Inspector, when
forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he
had misbehaved, wantonly fired from his revolver at Hanumanthappa and
Shivalingappa. It Is on this complaint that, after preliminary enquiry, the
Magistrate committed Nagraj, the appellant, to the Court of Session for trial.
The facts of the incident, according to the
The facts of the incident, according to the appellant and the basis of the
counter case, are these. The appellant was a Sub-Inspector of Police in the
State of Mysore. He was posted at Yagati, Kadur Taluk, in September 1959. On
September 7, 1959, he arrested one Gidda, manufacturing illicit liquor and sent
him with the constable to the police station. Thereafter, he arrested Thimma
who was supposed to be in league with Gida in manufacturing liquor. When Thimma
was being taken to the police station by the Sub-Inspector and a constable a
crowd of about 20 or 30 persons rushed at them, surrounded them and the police
officials attacked them and rescued Thimma. Nagraj asked those people not to
resort to violence, but to remain calm. The people -however, did not pay heed
to the advice, caught the constable and asked Nagraj to stay there till one
Kenchappa came. Upon this, the Sub-Inspector again told them to go away without
creating any trouble and said that there was no reason for him to wait for Kenchappa.
The people threatened him and the constable with dire consequences if they left
the place.
just then Kenchappa came and then these
persons encircled the Sub-Inspector and the constable and the Sub-Inspector,
apprehending danger to his life and that of the constable, first fired his
revolver in the air and when the people pelted stones at him and grappled with
him, two shots went off from the revolver and injured two persons,
Hanumanthappa and Shivalingappa. Kenchappa snatched 675 the revolver, leather
bag with the ammunition pouch and the two mahazars prepared by the SubInspector
regarding the prohibition case. The people beat the Sub-Inspector and carried
him to a pond saying that they would throw him into it. They were, however,
released at the remonstrance of one Basappa.
The persons who are said to have attacked
Nagraj that day have also been committed to the Court of Session for trial, of
offences under ss, 147, 332, 341 and 395 read with s.149, though prosecuted for
offences under ss. 143, 147, 149, 224, 225, 395 and 34, I.P.C.
The Sessions judge made the reference for the
quasbing of the commitment of the a appellant as it appeared that the two cases
arose out one incident that the Sub-Inspector was at the time discharging his
duties, that while discharging his duties he had to disperse an unlawful
assembly by force as his own life and that of his subordinate were in jeopardy
and that therefore previous sanction of the Government under s. 197 of the Code
was necessary, for the Court's taking cognizance of the offence against him as
the Power of dismissing a Sub-Inspector of Police vested in the Government. He
was also of opinion that even if the SubInspector had fired without any
justification as alleged by the complainant, sanction under s. 132 of the Code
was necessary. He observed :
"Now, it cannot be gainsaid that at that
time he was clearly on duty and was taking Thimma to the Police station in the
discharge of his official duty as a Sub-Inspector. A large number of persons
then surrounded him and rescued Thimma. It cannot also hence be denied that
there was an unlawful assembly which the Sub Inspector was entitled to disperse
by force. Now s. 132 of the Cr. P.C. is clearly a bar to 676 the prosecution of
police officers purporting to act under Chapter IX of the Cr. P. C.
which deals with unlawful assemblies without
the sanction of the local Government." The High Court rightly observed
that the Sessions judge was wrong in practically accepting the version of the
appellant that he was surrounded by a number of persons who constituted an
unlawful assembly and that they rescued Thimma and that therefore he was
entitled to disperse the unlawful assembly by force.
The High Gourtheld that the Sub-Inspector of
Police could be removed from service by the Deputy Inspector-General of Police
and that therefore no question of sanction under s.
197 arose. It further held that before a
Court could hold that the cognizance of the case had been taken by the
Magistrate without sanction of the Government under s. 132, it must be
established that there was an unlawful assembly and that the police officer
purported to disperse the assembly under any of the sections 128 to 131 of the
Code.
The High Court stated later :
"Section 132 Cr. P.C. has nothing to do
with the ingredients of any offence. It is a protection against prosecution. In
order to obtain its benefit the accused person need not prove that the acts
complained of were done under circumstances mentioned in Section 132 Cr. P.C.
In other words, he must place before the judge materials and circumstances
justifying an inference that there was an unlawful assembly and the acts
complained of were Durported to have been done while dispersing that
assembly." The High Court further held that it is for the Sessions judge
to decide on facts established in 677 the case whether s. 132 Or. P.C. was
applicable and if he came to the conclusion that the facts of the case brought
it within the provisions of s. 132, Cr. P.C., the Sessions judge was at liberty
to reject the complaint holding that it was barred under s. 132, Cr. P.C.
Lastly, the High Court suggested that the
Sessions case against the other party be tried first and that if after its
trial the Sessions judge was satisfied that the complaint against the accused
was barred under s. 132 Or. P.C., it would be appropriate for him to reject
that complaint on that ground alone.
Learned Counsel for the appellant has raised
four contentions in this Court : (1) The appellant as SubInspector of Police
could be dismissed by the State Government alone and that, therefore, sanction
under s. 197 of the Code was necessary for his prosecution of the offences
spurported to have been committed in the discharge of his duty. (2) That a
police officer cannot be prosecuted without a sanction from the State
Government for an offence which the police officer alleges, took place during
the course of performance of duties under Ch. IX of the Code.
(3) That when both a case and a counter case
have been committed for trial to the Sessions Court it could be said that the
appellant has prima facie established his version of the incident and that his
producing a copy of the committal order in the counter case is sufficient for
holding that sanction under s. 132, Or. P.C. was necessary.
(4) That it is not necessary for the police
officer to prove conclusively that he was dispersing an unlawful assembly
before he can raise the plea of want of sanction as a bar from prosecution.
We are not satisfied that the appellant, the
Sub-Inspector can be dismissed by the State 678 Government alone. Section 4 (c)
of the Mysore Police Act, 1908 (Act No. V of 1908), hereinafter called the Act,
provides that unless there be something repugnant in the subject or context the
word "inspector' in the Act, subject to such rules and orders as the
Government may pass, includes 'Sub-Inspector.' Section 8 states that the
appointment of Inspectors of such grades as Government may from time to time
prescribe shall be made by Government and the dismissal of Inspectors of all
grades shall vest in Government. It is on the basis of these two provisions
that it is submitted for the appellant that it is the Government which can
dismiss him as he, though a Sub-Inspector, is an Inspector for the purposes of
s. 8 of the Act. The contention is not sound. It is the dismissal of Inspectors
of all grades which vests in the Government. It appears there are Inspectors of
various grades. Inspectors of some grades were appointed by the Government but
the dismissal of Inspectors of all grades is vested in the Government. In this
context the word 'Inspector' in s. 8 will not include Sub-Inspector as he could
not possibly be an Inspector of any grade. Subsection (1) of s. 26 of the Act
further provides that any officer authorised by sub-s. (3) in that behalf may
dismiss any police officer below the grade of Assistant Superintendent and
sub-s. (3) provides that subject to the provisions of s. 8, the Inspector General
shall have authority to punish any Police Officer below the grade of Assistant
Superintendent. It follows that the Inspector-General of Police can dismiss a
Sub-Inspector who is a police officer below the grade of Assistant
Superintendent. No sanction therefore, of the State Government for the
prosecution of the appellant was necessary even if he had committed the offence
alleged while acting or purporting to act in the discharge of his official
duty.
Before dealing with the other contentions
raised we may refer to the provisions of Ch. IX of 679 the Code of Criminal
Procedure which has the heading 'unlawful assemblies.' Section 127 empowers any
Magistrate or officer in charge of a police station to command any unlawful
assembly or any assembly of five or more persons likely to cause a disturbance
of the public peace, to disperse and further provides that it shall be the duty
of the members of such assembly to disperse on command. If such a command is
not obeyed by the members of such an assembly, s. 128 authorizes the Magistrate
or the officer in charge of the police station to use civil force to disperse
the assembly. Civil force can also be used even without giving such command, if
the conduct of the assembly shows a determination not to disperse. Such officer
can call upon any male person to assist in the dispersing of the assembly and
can also arrest and confine the persons who form part of the assembly. Sections
129 and 130 deal with the use of military force in the dispersing of such
assembly and of the duty of the officer commanding the armed forces called upon
to disperse such assembly. Section 131 authorises any commissioned officer of
the armed forcees, in the absence of any communication with any Magistrate, to
disperse such an assembly with the help of armed forces in certain
circumstances. The officers and persons who act under these provisions for the
purpose of dispersing, the unlawful assembly are protected from prosecution
under the provisions of s. 132 on which the appellant relies. The relevant
portion of this section, for the purpose of this appeal, reads :
"No prosecution against any person for
any act purporting to be done under this Chapter shall be instituted in any.
Criminal Court, except with the sanction of the State Government; and (a) no
Magistrate or police-officer acting under this Chapter in good faith, x x 680
shall be deemed to have thereby committed an, offence".
It is clear that when a complaint is made to
a criminal court against any police officer and makes allegations indicating
that the police officer had acted or purported to act under ss. 127 and 128 of
the Code and in so doing committed some offence complained of, the Court will
not entertain the complaint unless it appears that the State Government had
sanctioned the prosecution of that police officer.
If the allegations in the complaint do not
indicate such facts, the Court can have no ground for looking to the sanction
of the Government and in the absence of such a sanction for refusing to
entertain the complaint. It must proceed with the complaint in the same manner
as it would have done in connection with complaints against any other per-son.
The occasion for the Court to consider
whether the complaint could be filed without the sanction of the Government
would be when at any later stage of the proceedings it appears to the Court that
the action of the police officer complained of appears to come within the
provisions of Ss. 127 and 128 of the Act.
This can be either when the accused appears
before the Court and makes such a suggestion or when evidence or circumstances
Prima facie show it. The mere suggestion of the accused will not, however be
sufficient for the Court to hold that sanction was necessary. The Court can
consider the necessity of sanction only when from the evidence recorded in the:
proceedings or the circumstances of the case
it be possible to' hold either definitely that the alleged criminal conduct was
committed or was probably committed in connection with action under ss. 127 and
128 of the Code.
It is contended for the appellant that if the
question of sanction is not decided in the very first 681 instance when a
complaint is filed or when the accualleges that he could not be prosecuted for
the alleged offences without the sanction of Government in view of s. 132 of
the Code, the protection given by this section will be nugatory as the object
of giving this protection is that the police officer be not harassed by any
frivolous complaint. There may be some such harassment of the accused, but the
Court has no means to hold in the circumstances alleged that the prosecution of
the accused was in connection with such action as the complaint did not
disclose the necessary circumstances indicating that fact and the bare word of
the accused cannot be accepted to hold otherwise. just as a complainant is
likely to omit mentioning the facts which would necessitate the sanction of
Government before he can prosecute the accused, the accused too is likely to
make such allegations which may lead to the rejection of the complaint for want
of sanction. It is well settled that the jurisdiction of the Court to proceed
with the complaint emanates from the allegations made in the complaint and not
from what is alleged by the accused or what is finally established in the case
as a result of the evidence recorded.
In this connection reference may be appropriately
made to the observations of this Court in connection with prosecution to which
the provisions of s. 197 of the Code apply. In Matajog Dobey v. H. C. Bhari
(1), in connection with the question "is the need for sanction to be considered
as soon as the complaint is lodged and on the allegations therein
contained?", it was said :
"The question may arise at any stage of
the proceedings. The complaint may not disclose that the act constituting the
offence was done or purported to be done in the discharge of official duty; but
facts subsequently coming to light on a police or judicial inquiry or even in
(1) [1955] 2 S.C.R. 925,935, 682 the course of the prosecution evidence at the
trial, may establish the necessity for sanction. Whether sanction is necessary
or not may have to be determined from stage to stage. The necessity may reveal
itself in the course of the progress of the case." It follows, therefore,
that the contention that a police officer cannot be prosecuted without the sanction
from the State Government for an offence which he alleges to have taken place
during the course of his performing the duties under ("h. IX of the Code
cannot be accepted. His mere allegation will not suffice for the purpose and
will not force the Court to throw away the complaint of which it had properly
taken cognizance on the basis of the allegations in the complaint.
The third contention really is that the Court
can hold that sanction wag necessary if the appellant could prima facie show
that his action which is complained of was in connection with the performance
of his duties under ss.127 and 128 of the Code. Assuming that this is the
position in law, it does not appear from the record which consists of the
orders of the Sessions judge and the High Court that the evidence in this case
prima facie establishes that the appellant's contention that his acts
complained of were such for which he could not be prosecuted without the
sanction of the Government. In this case the High Court has definitely said
that the Sessions judge did not arrive at any such conclusion and had made the
reference on a mere acceptance of the accused's version, for which there was no
justification. It is contended for the appellant that the mere fact that some
of the persons alleged to have formed part of the unlawful assembly were
prosecuted by the State and have also been committed by the Magistrate to the
Sessions Court for trial establishes prima facie that the accused's contention
about the necessity 683 for sanction under s. 132 of the Code. is correct. The
commitment of the other accused is on the basis of evidence in that case and
cannot be legally taken into consideration to decide the question raised in
this case. The question is to be decided on the evidence in this case and not
on the basis of evidence and inferenccs drawn in the other case.
The third contention, therefore, has no
force.
The next question and the real question to
decide then is to determine what the accused has to show in order to get the
benefit of the provisions of s. 132 of the code in the case.
To get such a benefit and to put off a clear
decision on the question whether his conduct amounts to an offence or not, the
appellant has to show (i) that there was an unlawful assembly or an assembly of
five or more persons likely to cause a disturbance of the public peace ; (ii)
that such an assembly was commanded to disperse ; (iii) that either the
assembly did not disperse on such command or, if no command had been given; its
conduct had shown a determination not to disperse ; and (iv) that in the
circumstances he had used force against the members of such assembly. He has to
establish these facts just in the same manner as an accused has to establish
any other exception he pleads in defence of his conduct in a criminal case. It
is sufficiently well settled that it is for the prosecution to prove the
offence in the sense that the offence was committed in the circumstances in
which no recourse to an exception could be taken and, therefore, if the accused
establishes such circumstances which either conclusively establish to the
satisfaction of the Court or make the Court believe them to be probable that
the case comes within the exception that would be sufficient compliance on the
part of the accused with respect to his proving the exception to prove which
the onus was on him. In the present case therefore the accused has to show to
the Court that the alleged offences were committed during the performance of
his 684 duties in the circumstances narrated above. On his so showing, it would
be the duty of the Court to hold that the complaint could not have been
entertained without the sanction of the Government under s. 132 of the Code. To
show this is not equivalent to the accused establishing facts which would be
necessary for him to take advantage of the provisions of s. 79 of the Indian
Penal Code as had been thought in some of the cases cited to us. Section 79,
I.P.C. deals with circumstances which when proved makes acts complained of not
an offence. The circumstances to be established to get the protection of s.
132, Or. P.C. are not circumstances which make the acts complained of no
offence, but are circumstances which require the sanction of the Government in
the taking of cognizance of a complaint with respect to the offences alleged to
have been committed by the accused. If the circumstances to be established for
seeking the protection of s. 132 of the Code were to make the alleged conduct
no offence, there could be no question of a prosecution with the sanction of
the State Government.
This distinction had not been considered in
the cases we were referred to. It is not necessary to refer to those cases
which were ultimately decided on the basis that the allegations either in the
complaint or taken together with what had appeared from the evidence on record
justified the conclusion that the action complained of came under ss. 127 and
128 of the Code and that no prosecution in connection with such an action could
be instituted in the Court without the sanction of the State Government.
The last question to consider is that if the
Court comes at any stage to the conclusion that the prosecution could not have
been instituted without the sanction of the Government, what should be the
procedure to be followed by it, i e., whether the Court should discharge the
accused or acquit him of the charge if framed against him or just drop the
proceedings and pass no formal order of discharge or 685 acquittal as
contemplated in the case of a prosecution under the Code. The High Court has
said that when the Sessions judge be satisfied that the facts proved bring the
case within the mischief of s. 132 of the Code then he is at liberty to reject
the complaint holding that it is barred by that section. We consider this to be
the right order to be passed in those circumstances. It is not essential that
the Court must pass a formal order discharging or acquitting the accused. In
fact no such order can be passed. If s. 132 applies, the complaint could not
have been instituted without the sanction of the Government and the proceedings
on a complaint so instituted would be void,, the Court having no jurisdiction
to take those proceedings. When the proceedings be void, the Court is not
competent to pass any order except an order that the proceedings be dropped and
the complaint is the relating to Bombay and reads thus:
"(1) The body known as the Bombay State
Road Transport Corporation and the Board thereof, referred to in the
notification of the Government of Bombay, No. 1780/5, dated the 16th November,
1949 (hereinafter referred to as the existing Corporation' and 'Board'
respectively) shall, notwithstanding any defect in, or invalidity of the
enactment or order under which they were constituted, be deemed for all
purposes to have been validly constituted as if all the provisions of the said
notification had been included and enacted in this section and this section had
been in force continuously on and from the said date, and accordingly(a) all
action by, and all transactions with, the existing Corporation or Board,
including any action or transaction by which any property, asset or right was
acquired or any liability or obligation whether by contract or otherwise, was
incurred, shall be deemed to have been validly and lawfully taken or done; and
(b) no suit, prosecution or other legal proceeding shall lie against the
Government of Bombay or any member of the 694 Board or any officer or servant
of the existing Corporation in respect of any action taken by, or in relation
to the setting up of, the existing Corporation or Board merely on the ground
of-any defect in, or invalidity of, the enactment or order under which the
existing Corporation or Board was constituted.
(2) On the establishment of a Corporation
under section 3 in the State of Bombay (hereinafter referred to as 'the New
Corporation')(a) the existing Corporation and Board shall be deemed to be
dissolved and shall cease to function;
(b) all property and assets vesting in the
existing Corporation shall vest in the new Corporation;
(c) all rights, liabilities and obligations.
of the existing Corporation, whether arising
out of any contract or otherwise, shall be the rights, liabilities and
obligatorily, respectively, of the new Corporation;
and (d) all licences and permits granted to
all contracts made with, and all instruments executed on behalf of the existing
Corporation or Board shall be deemed to have been granted to, made with, or
executed on behalf of, the new Corporation and shall have effect
accordingly." It will be clear from these provisions that the old
Corporation was recognised as having always had valid legal status and deemed
to have been properly incorporated. On the establishment of a Corporation under
s. 3 of the Act of 1950 the old 695 Corporation was dissolved. But all action
by and transaction with the old Corporation including any action or transaction
by which any property or asset etc., was acquired by or for the old Corporation
was deemed to have been validly or lawfully taken or done. It is common ground
that in consequence of the passing of the Act of 1950 the Bombay Act of 1950
stood impliedly repealed and was in fact expressly repealed 'by the Bombay Act
29 of 1955. The provisions which we have set out above clearly show that the
State Transport Corporation having been incorporated by an Indian law is a
Company. Since, however, the compensation to be awarded for the acquisition is
to be paid only by the Corporation and no portion of it was paid by the
Government, could it be said that the terms of the proviso to sub-s. (1) of s.
6 have been satisfied ? It is contended by the learned Attorney-General on
behalf of the respondent that the funds of the Corporation have themselves come
out of public revenue inasmuch as they consist of moneys provided by the State
of Bombay. Even assuming that the funds of the Corporation consist only of the
moneys which have been provided by the State of Bombay it is difficult to
appreciate how they could be regarded as part of the public revenue. No doubt,
the source of the funds would be public revenue but the funds themselves belong
to the Corporation and are held by it as its own property. They cannot,
therefore, be regarded as 'public revenue' in any sense. It was then said by
reference to several provisions of the Act that the Government is entitled to
exercise control over the Corporation, that the profits earned by the
Corporation would go to the Government, that if the Corporation was wound up
all its assets would also go to the Government and that, therefore, the Corporation
could be regarded as nothing more than a limb of the Government. Even though
that may be so. the Corporation is certainly not a department of Government but
is a separate legal 696 entity and, therefore, moneys coming out of public
revenues whether invested, loaned or granted to it would change their original
character and become the funds or assets of the Corporation when they are
invested in or transferred or loaned to it. While, therefore, the terms of the
proviso could be said to have been satisfied because compensation is to be paid
by the Corporation, the acquisition will be bad because the provisions of Part
VII of the Land Acquisition Act have not been complied with. In order to get
out of this difficulty the learned Attorney General argued that the State
Transport Corporation is a local authority.
The expression "Local authority" is
not defined in the Land Acquisition Act but is defined in s. 3 (31) of the General
Clauses Act, 1897, as follows :
"'local authority' shall mean a
municipal committee, district board, body of port commissioners or other
authority legally entitled to, or entrusted by the Government with, the control
or management of a municipal or local fund:" The definitions given in the General
Clauses Act, 1897, govern all Central Acts and Regulations made after the commencement
of the Act. No doubt, this Act was enacted later in point of time than the Land
Acquisition Act ; but this Act was a consolidating and amending Act and a
definition given therein of the expression "local authority" is the
same as that contained in the earlier Acts of 1868 and 1887. The definition
given in s. 3 (3 1) will, therefore, hold good for construing the expression
"local authority" occurring in the Land Acquisition Act. We have
already quoted the definition.
It will be clear from the definition that
unless it is shown that the State Transport Corporation is an 697
"authority' and is legally entitle i to or entrusted by the Government
with control or management of a local fund it cannot be regarded as a local
authority. No material has been placed before us from which it could be deduced
that the funds of the Corporation can be regarded as local funds.
It was no doubt submitted by the learned
Attorney-General that the Corporation was furnished with funds by the Government
for commencing its business ; but even if that were so, it is difficult to
appreciate how that would make the funds of the Corporation local funds.
Learned Attorney-General then relied upon the
provisions of s. 29 of the Bombay State Road Transport Act, 1950, which provides
that the Corporation shall for all purposes be deemed to be a local authority.
No doubt that is so. But the definition contained in this Act cannot override
the definition contained in the General Clauses Act of 1897 which alone must
apply for construing the expression occurring in a Central Act like the Land
Acquisition Act unless there is something repugnant in the subject or context.
Though land acquisition is now in the concurrent
list and therefore, the State can legislate, the Bombay Act not having received
the President's assent, cannot prevail against the meaning of the expression
'local authority' in that Act. No repugnancy is pointed out.
Then again, the Act of 1948 had empowered the
Province of Bombay, among other provinces, to appoint Road Transport
Corporations and conferred power on the Provincial Governments under ss. 5 and
6 to deal with compensation and winding up of Corporations so appointed. In
pursuance of this power and after the commencement of the Constitution, the
Bombay Act of 1950 had been enacted by the State Legislature of Bombay. But by
the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the
continuance and existence of the Bombay Act 698 of 1950 disappeared. Moreover,
since s. 41 of the Central Act provided that a Corporation shall be deemed to
be a local authority within the meaning Motor Vehicles Act, 1939, and not
within the meaning of any other law, the provisions of s. 29 of the Bombay Act
could in no circumstances be said to survive. In view of all this the learned
Attorney General did not press his argument on the point further.
In our view the acquisition impugned in this
case having been made' for the benefit of a Corporation, though for a public
purpose, is bad because no part of the compensation is to come out of public
revenues and the provisions of Part VII of the Land Acquisition Act have' not been
complied with. We, therefore, allow the appeals and decree the suits of the
appellants with costs in all the courts.
Appeals allowed.
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