Karnataka Sales Tax Act,= (i) Is the assessee liable to turnover tax under Section 6-B of the Karnataka Sales Tax Act, 1957 on the payment made to the sub-contractor in spite of the fact that the sub-contractor had declared the turnover and paid taxes? (ii) Since the payment made to the sub-contractor does not amount to turnover within Section 2(i)(v) of the Karnataka Sales Tax Act, 1957, can such payment be part of total turnover as per Section 2(1)(u-2) of the Karnataka Sales Tax Act, 1957? = since the transfer of property involved in such execution had already been taxed, the appellant cannot be taxed again under Section 6-B of the Karnataka Act there being only one taxable event for the purpose of Article 366(29A)(b) of the Constitution of India.= the assessee had assigned parts of the construction work to sub- contractors who were registered dealers. These sub-contractors had purchased goods and chattels like bricks, cement and steel and, where necessary, supply and erect equipments such as lifts, hoists, etc. The materials were brought to the site and they remain the property of the sub- contractor. The site was occupied by the sub-contractor and the materials were erected by the sub-contractor. In this backdrop, after taking note of some provisions of the Andhra Pradesh Act, the Court explained the legal position in the following manner: “16. By virtue of Article 366(29-A)(b) of the Constitution, once the work is assigned by the contractor (L&T), the only transfer of property in goods is by the sub-contractor(s) who is a registered dealer in this case and who claims to have paid taxes under the Act on the goods involved in the execution of the works. Once the work is assigned by L&T to its sub- contractor(s), L&T ceases to execute the works contract in the sense contemplated by Article 366(29-A)(b) because property passes by accretion and there is no property in goods with the contractor which is capable of a retransfer, whether as goods or in some other form. 17. The question which is raised before us is whether the turnover of the sub-contractors (whose names are also given in the original writ petition) is to be added to the turnover of L&T. In other words, the question which we are required to answer is whether the goods employed by the sub- contractors occur in the form of a single deemed sale or multiple deemed sales. In our view, the principle of law in this regard is clarified by this Court in Builders' Assn. of India as under: (SCC p. 673, para 36) “36 … Ordinarily unless there is a contract to the contrary in the case of a works contract, the property in the goods used in the construction of a building passes to the owner of the land on which the building is constructed, when the goods or materials used are incorporated in the building.” (emphasis supplied by us) 18. As stated above, according to the Department, there are two deemed sales, one from the main contractor to the contractee and the other from sub-contractor(s) to the main contractor, in the event of the contractee not having any privity of contract with the sub-contractor(s). 19. If one keeps in mind the above quoted observation of this Court in Builders' Assn. of India the position becomes clear, namely, that even if there is no privity of contract between the contractee and the sub- contractor, that would not do away with the principle of transfer of property by the sub-contractor by employing the same on the property belonging to the contractee. This reasoning is based on the principle of accretion of property in goods. It is subject to the contract to the contrary. Thus, in our view, in such a case, the work executed by a sub- contractor, results in a single transaction and not as multiple transactions. This reasoning is also borne out by Section 4(7) which refers to the value of goods at the time of incorporation in the works executed. In our view, if the argument of the Department is to be accepted, it would result in plurality of deemed sales which would be contrary to Article 366(29-A)(b) of the Constitution as held by the impugned judgment of the High Court. Moreover, it may result in double taxation which may make the said 2005 Act vulnerable to challenge as violative of Articles 14, 19(1)(g) and 265 of the Constitution of India as held by the High Court in its impugned judgment.” This raison d'etre shall apply, in full force, while answering the question even in the context of the Karn5ataka Act. We, therefore, hold that the value of the work entrusted to the sub- contractors or payments made to them shall not be taken into consideration while computing total turnover for the purposes of Section 6-B of the Karnataka Act. As a consequence, the two appeals which are filed by the assessee are allowed and the appeal preferred by the Revenue is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2956 OF 2007


|LARSEN & TOUBRO LIMITED                    |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|ADDITIONAL DEPUTY COMMISSIONER             |                             |
|OF COMMERCIAL TAXES & ANR.                 |.....RESPONDENT(S)           |

                                   W I T H
                        CIVIL APPEAL NO. 2318 OF 2013

                                    A N D

                        CIVIL APPEAL NO. 7241 OF 2016


                               J U D G M E N T

A.K. SIKRI, J.
                 Same parties are entangled in  these  three  appeals  which
arise  out  of  the  provisions  of  the  Karnataka  Sales  Tax  Act,   1957
(hereinafter  referred  to  as  the  'Karnataka  Act').   Two  appeals   are
preferred by the assessee, viz. Larsen & Toubro  Ltd.,  and  one  appeal  is
filed by the Revenue, i.e. the Sales Tax Department of Karnataka.

The assessee is doing the business of engineers and contractors and in  this
process it, inter  alia,  executes  projects  under  contracts  with  public
sector undertakings, local bodies  as  well  as  the  Union  and  the  State
Governments, besides private sector.  The assessee is registered  under  the
Karnataka Act and files its returns for payment  of  sales  tax  thereunder.
The contracts which are secured by the assessee are the works contracts  and
a part thereof is generally assigned to sub-contractors.   For  example,  in
Civil Appeal No. 2956 of 2007,  the  assessee  had  secured  a  contract  to
construct an indoor stadium  styled  'Sree  Kanteerava  Indoor  Stadium'  in
Bengaluru and the assessee assigned the work of finding their own  materials
and laying foam concrete to M/s. Lloyd  Insulation  (India  Limited).   This
sub-contractor was registered with the  Deputy  Commissioner  of  Commercial
Taxes, Assessment-IX  City  Division,  Bengaluru,  and  accordingly  it  had
submitted returns and paid taxes for the execution  of  the  works  contract
and was duly assessed under Sections 5-B and 6-B of the  Karnataka  Act.   A
certificate dated April 10, 1998 to that effect had been marked  before  the
authorities.
      Likewise, returns are filed by the assessee as well on regular  basis.
In the course of the  assessment,  the  assessee  submitted  that  the  sub-
contractors were the parties who executed the works contract and  since  the
transfer of property involved in such execution had already been taxed,  the
appellant cannot be taxed again under  Section  6-B  of  the  Karnataka  Act
there being only one taxable event for the purpose  of  Article  366(29A)(b)
of the Constitution of India.  In nutshell, it was  the  submission  of  the
assessee that value of the work entrusted to the  sub-contractor  could  not
be taken into account while computing total turnover  of  the  assessee  for
the purpose of taxation under the Karnataka Act.   This  submission  of  the
assessee was, however, negatived by the Assessing Officer  as  well  as  the
Karnataka Appellate Tribunal.  In the revision filed  under  Section  23  of
the Karnataka Act, the appellant raised the following questions:
(i) Is the assessee  liable  to  turnover  tax  under  Section  6-B  of  the
Karnataka Sales Tax Act, 1957 on the payment made to the  sub-contractor  in
spite of the fact that the sub-contractor  had  declared  the  turnover  and
paid taxes?
(ii)  Since the payment made  to  the  sub-contractor  does  not  amount  to
turnover within Section 2(i)(v) of the Karnataka Sales Tax  Act,  1957,  can
such payment be part of total turnover  as  per  Section  2(1)(u-2)  of  the
Karnataka Sales Tax Act, 1957?

            The High Court  decided  the  aforesaid  questions  against  the
assessee and thereby affirmed the  view  taken  by  the  Appellate  Tribunal
which resulted in dismissing the revision  petition  of  the  assessee  vide
judgment dated February 03, 2006.  This judgment is the  subject  matter  of
challenge  in  Civil  Appeal  No.  2956  of  2007,  which  pertains  to  the
Assessment Year 1997-1998.

Likewise, for the Assessment  Year  2002-2003  (Civil  Appeal  No.  2318  of
2013), the assessee has been meted out the same treatment whereby  the  work
awarded to the sub-contractors, who are  the  registered  dealers  and  have
paid sales tax in respect of the works undertaken by them,  has  been  added
in the total turnover of the assessee  for  the  purposes  of  levying  tax.
However,  here  the  matter  is  remanded  to  the  Assessing  Officer   for
ascertaining the liability of the assessee under  Section  5-B  as  well  as
Section 6-B of the Karnataka  Act  in  respect  of  total  turnover  of  the
assessee.

On the other hand, outcome of the proceedings in respect of  the  Assessment
Year 1999-2000 (Civil Appeal No. 7241 of 2016)  has  taken  a  U-turn.   For
this Assessment Year, though the Assessing Officer as well as the  Appellate
Tribunal had included the cost of work awarded to the  sub-contractors,  the
High Court has held that value of the work awarded  to  the  sub-contractors
cannot be included for computing the total  turnover  of  the  assessee  and
has, thus, allowed the revision petition preferred by the assessee.  Against
that order, the Revenue is in appeal.

The aforesaid brief resume of the three appeals  makes  it  clear  that  the
question of law involved in all these three cases is the  same,  though  the
two sets of judgments of the High Court are contrary to each other.

It may be pointed out at this juncture itself that in the case of this  very
assessee same question of law had arisen, albeit in the  context  of  Andhra
Pradesh Value Added Tax Act, 2005 (hereinafter referred to  as  the  'Andhra
Pradesh Act').  This Court has decided the issue in its  judgment  known  as
State of Andhra Pradesh  &  Ors.  v.  Larsen  &  Toubro  Limited  &  Ors.[1]
(hereinafter referred to as 'Andhra Pradesh  judgment').   The  question  of
law is answered  in  favour  of  the  assessee.   Taking  aid  of  the  said
judgment, the assessee  has  argued  that  the  instant  appeals  should  be
decided in its favour.  On the other hand, plea of the Revenue is that  that
view taken by the High Court, which is in favour  of  the  Revenue,  is  the
correct view and should be maintained having regard  to  the  provisions  of
the Karnataka Act.  The endeavour of the Revenue is to demonstrate that  the
provisions of the Andhra Pradesh Act are materially different than  that  of
the Karnataka Act and, therefore, the judgment in the  Andhra  Pradesh  case
need not be followed.
            Before adverting to the aforesaid judgment  of  this  Court,  it
would be advisable to take note of the various provisions of  the  Karnataka
Act.

For  our  purposes,  definitions  of  'sale',  'taxable  turnover',   'total
turnover' and 'turnover' are material, which are reproduced below:
“2(i)(t)  “Sale” with all its grammatical variation and cognate  expressions
means every transfer of the property in  goods  (other  than  by  way  of  a
mortgage, hypothecation, charge or plede) by one person to  another  in  the
course of trade or business for  cash  or  for  deferred  payment  or  other
valuable consideration, and includes, –

(i)  a transfer otherwise than in pursuance of a  contract  of  property  in
any goods for cash, deferred payment or other valuable consideration;

(ii)  a transfer of property in goods (whether as goods  or  in  some  other
form) involved in the execution of a works contract;

                          xx          xx         xx

2(i)(u-1)  “Taxable turnover” means the turnover on which a dealer shall  be
liable to pay tax as determined after making such deductions from his  total
turnover and in such manner as may be prescribed, but shall not include  the
turnover of purchase or sale in the course of inter-State trade or  commerce
or in the course of export of the goods out of the territory of India or  in
the course of import of the gods into the territory of India;

(u-2)  “Total turnover” means the aggregate  turnover  in  all  goods  of  a
dealer at all places of business in the State, whether or not the  whole  or
any portion of such turnover is liable to tax,  including  the  turnover  of
purchase or sale in the course of inter-State trade or commerce  or  in  the
course of export of the goods out of  the  territory  of  India  or  in  the
course of import of the goods into the territory of India;

(v)  “Turnover” means the aggregate amount for which  goods  are  bought  or
sold, or supplied or distributed or delivered or otherwise  disposed  of  in
any of the ways referred to in clause (t) by a dealer,  either  directly  or
through another, on his own account or on account  of  others,  whether  for
cash or for deferred payment or other valuable consideration.”

Since we are dealing with the sales tax under the Karnataka  Act,  obviously
the said tax is on 'sale'.  'Sale' is defined as transfer  of  the  property
in goods by one person to another in the course of  trade  or  business  for
consideration and it, inter alia, includes a transfer of property  in  goods
(whether as goods or in some other form) involved  in  the  execution  of  a
works contract.  Thus, even in respect of works contract whenever  there  is
a transfer of property in goods, that is deemed as 'sale'.
An essential element to constitute a transaction as 'sale' is  the  transfer
of property in goods.  Aggregate amount for which the goods  are  bought  or
sold, or supplied or distributed or delivered or otherwise disposed  of,  in
any of the ways referred to under Section 2(t), by a dealer  is  treated  as
'turnover' within the meaning of Section 2(v) of the Karnataka  Act.   There
are two variants of this turnover known as  'taxable  turnover'  and  'total
turnover', the definitions whereof  are  already  reproduced  above.  'Total
turnover' is defined as aggregate turnover in all goods of a dealer  at  all
places of business in the State.  However,  from  this  aggregate  turnover,
certain deductions are permissible under the  provisions  of  the  Karnataka
Act and when those deductions are allowed from the total  turnover,  we  get
'taxable turnover' on which a dealer is liable to pay tax.

Section 5-B of the Karnataka Act is  the  charging  section  in  respect  of
execution of the works contract and it reads as under:
“5-B  Levy of tax on transfer of property in goods (whether as goods  or  in
some  other  form)  involved  in  the  execution  of   works   contracts   –
Notwithstanding anything contained in sub-section (1) or sub-section (3)  or
sub-section (3-C) of Section 5, but subject to sub-section (4), (5)  or  (6)
of the said section, every dealer shall pay for each year, a tax under  this
act on his taxable turnover of transfer of property  in  goods  (whether  as
goods or in some other form) involved in the  execution  of  works  contract
mentioned in column (2) of the Sixth Schedule at the rates specified in  the
corresponding entries in column (3) of the said Schedule.”

There is a levy of turnover tax as well, which is provided under Section  6-
B of the Karnataka Act.  At the relevant time, this  provision  was  in  the
following form:
“6-B  Levy of Turnover Tax. – (1) Every registered dealer and  every  dealer
who is liable to get himself registered under sub-section  (1)  and  (2)  of
Section 10 whose total turnover in a year is not  less  than  the  turnovers
specified in the said sub-sections, whether or not the whole or any  portion
of such turnover is liable to tax under any other provisions  of  this  Act,
shall be liable to pay tax. –

(i)  at the rate of one and half per cent of  the  total  turnover,  if  the
total turnover is not more than one thousand lakh rupees in a year; or

(ii)  at the rate of three per cent of the  total  turnover,  if  the  total
turnover is more than one thousand lakh rupees in a year;

Provided that the rate of tax payable for any year shall be at one and  half
per cent on the turnovers up to one thousand lakh rupees and  at  three  per
cent on the turnovers exceeding one thousand  lakh  rupees,  if,  the  total
turnover in the year immediately preceding that year was not more  than  one
thousand lakh rupees.”

On a plain reading of Sections 5-B and 6-B of the Karnataka Act, it  can  be
seen that Section 5-B deals with levy of tax  on  transfer  of  property  in
goods involved in the execution of the  works  contract.   It  is,  thus,  a
special provision made for imposing sales tax on works contract and  tax  is
payable  on  'taxable  turnover  of  transfer   of   property   in   goods'.
Additionally, in those cases where total turnover of a registered dealer  in
an year is not less than the turnover specified in sub-sections (1) and  (2)
of Section 10, such a dealer is liable to pay tax at the rate  specified  in
Section 6-B of the Karnataka Act.

The question for determination is: for  calculating  the  turnover  for  the
purpose of payment of turnover tax under Section 6-B of the  Karnataka  Act,
whether  payments  made  to  sub-contractor  are  to   be   included   while
calculating the total turnover?

Mr.   N.   Venkatraman,   learned   senior   counsel   appearing   for   the
appellant/assessee, made a fervent plea  for  not  including  such  payments
made to the sub-contractor, as component of total turnover, because  of  the
reason that the sales tax is payable on the transfer  of  property  and  the
'turnover' also meant aggregate amount for which goods are bought  or  sold,
etc.   Therefore,  transfer  of  property  in  goods   was   the   necessary
concomitant in ascertaining the sale and, thus, in the  process  calculating
the turnover/total turnover.  It was submitted that there  was  no  sale  of
goods involved in the execution of a works contract  as  in  such  contracts
the property does not pass  as  movables.   Tracing  the  history  of  works
contract, the learned senior counsel submitted  that  in  the  case  of  The
State of Madras  v.  Gannon  Dunkerley  &  Co.  (Madras)  Limited[2],  while
speaking of a building contract, this Court held that the property in  goods
involved in the execution of a works contract does not pass as movables  but
on the theory of accretion on the principle quicquid  plantatur  solo,  solo
cedit, i.e. whatever is attached to the  soil,  becomes  part  of  it.   The
Constitution (Forth-Sixth Amendment)  Act,  1982  inserted  Article  366(29-
A)(b) to neutralise the judgment in Gannon  Dunkerley  &  Co.  only  to  the
extent that an indivisble contract was deemed to be divisible  and  did  not
undo the principle.  He argued that this Court, interpreting Article 366(29-
A)(b) in Builders' Association of India & Ors. v. Union of India &  Ors.[3],
reiterated that in a works contract property in goods passes out as  movable
but on the theory of accretion.  It was further submitted that the  property
passes by accession just once which, by a fiction, is taxed as a sale.   The
Article also identifies the transferor and transferee effecting  the  deemed
sale and deemed purchase.  The taxable person is  the  contractor  executing
the works contract so that the main contractor,  who  assigns  the  work  to
another person to  execute  the  work,  cannot  be  a  transferor,  nor  any
property in goods  vest  in  the  main  contractor,  when  the  contract  is
executed by a sub-contractor.

Proceeding further,  by taking the aforesaid line of argument,  the  learned
senior counsel submitted that if  the  point  of  view  of  the  Revenue  is
accepted, it would amount to double  taxation  inasmuch  as  sub-contractors
were also registered dealers who had paid sales tax under the Karnataka  Act
and by including the payments made to them in  the  total  turnover  of  the
assessee, tax was sought to be levied on the same  amount  all  over  again.
On the aforesaid premise,  the  learned  senior  counsel  for  the  assessee
submitted that precisely this argument in law  has  been  accepted  by  this
Court in the  Andhra  Pradesh  judgment.   He  referred  to  the  discussion
contained in the said judgment in extenso.

Mr. K.N. Bhat,  learned  senior  counsel  appearing  for  the  Revenue,  per
contra, heavily relied upon the reasoning given by the  High  Court  in  the
judgment which has taken the view in favour of the  Revenue.   He  submitted
that one had to keep  in  mind  the  distinction  between  Section  5-B  and
Section 6-B of the Karnataka Act by pointing out that when it comes to  levy
of turnover tax, it speaks of 'total turnover', whereas  tax  payable  under
Section 5-B is on the 'taxable turnover'.  He submitted that  since  we  are
concerned with the levy of tax under  Section  6-B  of  the  Karnataka  Act,
total turnover becomes relevant  and,  therefore,  the  value  of  the  work
entrusted  to  the  sub-contractors  is  includible  at  the  hands  of  the
assessee.  He further submitted that the High Court was  right  in  pointing
out that sales tax is leviable at a single point, whereas  turnover  tax  is
leviable at a multi-point, both at the hands of the main contractor and sub-
contractor and, therefore, the question of double taxation does not arise.

After bestowing our due consideration  to  the  respective  submissions,  we
find that the position taken by the assessee has to prevail,  which  appears
to be meritorious.  This result follows even from the bare  perusal  of  the
Karnataka Act and Rules.  For this purpose, it becomes  important  to  refer
to clause (c) of sub-Rule (1) of Rule 6 of the Karnataka  Sales  Tax  Rules,
1957.  Rule 6 deals with determination of total  and  taxable  turnover  and
clause (c) reads as under:
“6.  Determination of total and taxable turnover. – (1) The  total  turnover
of a dealer, for the purposes of the Act, shall be the aggregate of. –

                          xx          xx         xx

(c)  the total amount paid or payable to the  dealer  as  the  consideration
for transfer of property in goods (whether as goods or in some  other  form)
involved in the execution of works contract; and includes  any  amount  paid
as advance to the dealer as a part of such consideration.

                         xx          xx         xx”

What is significant is that total amount paid or payable to the dealer as  a
consideration for 'transfer of property in  goods',  which  is  involved  in
execution of the works contract, is  to  be  treated  as  'total  turnover'.
This Rule, thus, specifically restricts the total  turnover  in  respect  of
those  goods,  alone,  where  the  property  has  been  transferred.   Thus,
transfer of property in goods, becomes necessary event and unless  there  is
a transfer of property, the amount paid is not to be included in  the  total
turnover.  The amount paid to the sub-contractor  is  not  for  transfer  of
property in goods.  When matter is examined from this angle, the ratio  laid
down by this Court in the Andhra Pradesh judgment clearly  applies  inasmuch
as in that case also the Court noticed  that  Section  4(7)  of  the  Andhra
Pradesh Act indicated that the taxable event is the transfer of property  in
goods involved in the execution of a works contract and  the  said  transfer
of property in such goods takes place when the  goods  are  incorporated  in
the works.  The Court held that the value of the goods which constitute  the
measure for the levy of tax is the  value  of  goods  at  the  time  of  the
incorporation of the goods in the works.  The Court further found that  same
was the position contained in Rule 17(1)(a)  of  the  Andhra  Pradesh  Value
Added Tax Rules, 2005.

It is not in dispute that the facts and the issue involved  were  identical,
i.e. the assessee had assigned  parts  of  the  construction  work  to  sub-
contractors  who  were  registered  dealers.   These   sub-contractors   had
purchased goods and chattels  like  bricks,  cement  and  steel  and,  where
necessary, supply and erect equipments such  as  lifts,  hoists,  etc.   The
materials were brought to the site and they remain the property of the  sub-
contractor. The site was occupied by the sub-contractor  and  the  materials
were erected by the sub-contractor.  In this backdrop, after taking note  of
some provisions of the Andhra Pradesh Act, the  Court  explained  the  legal
position in the following manner:
“16.  By virtue of Article 366(29-A)(b) of the Constitution, once  the  work
is assigned by the contractor (L&T), the only transfer of property in  goods
is by the sub-contractor(s) who is a registered dealer in this case and  who
claims to have paid taxes under  the  Act  on  the  goods  involved  in  the
execution of the works. Once the  work  is  assigned  by  L&T  to  its  sub-
contractor(s), L&T ceases  to  execute  the  works  contract  in  the  sense
contemplated by Article 366(29-A)(b) because property  passes  by  accretion
and there is no property in goods with the contractor which is capable of  a
retransfer, whether as goods or in some other form.

17. The question which is raised before us is whether the  turnover  of  the
sub-contractors (whose names are also given in the original  writ  petition)
is to be added to the turnover of L&T. In other words,  the  question  which
we are required to  answer  is  whether  the  goods  employed  by  the  sub-
contractors occur in the form of a single deemed  sale  or  multiple  deemed
sales. In our view, the principle of law in  this  regard  is  clarified  by
this Court in Builders' Assn. of India  as under: (SCC p. 673, para 36)

“36 … Ordinarily unless there is a contract to the contrary in the  case  of
a works contract, the property in the goods used in the  construction  of  a
building passes  to  the  owner  of  the  land  on  which  the  building  is
constructed, when the goods  or  materials  used  are  incorporated  in  the
building.”

                                                   (emphasis supplied by us)

18.  As stated above, according to the  Department,  there  are  two  deemed
sales, one from the main contractor to the contractee  and  the  other  from
sub-contractor(s) to the main contractor, in the  event  of  the  contractee
not having any privity of contract with the sub-contractor(s).

19.  If one keeps in mind the  above quoted  observation  of  this  Court  in
Builders' Assn. of India the position becomes clear, namely,  that  even  if
there is no  privity  of  contract  between  the  contractee  and  the  sub-
contractor, that would not  do  away  with  the  principle  of  transfer  of
property by the  sub-contractor  by  employing  the  same  on  the  property
belonging to the contractee. This reasoning is based  on  the  principle  of
accretion of property in goods.  It  is  subject  to  the  contract  to  the
contrary. Thus, in our view, in such a case, the work  executed  by  a  sub-
contractor,  results  in  a  single  transaction   and   not   as   multiple
transactions. This reasoning is also borne out by Section 4(7) which  refers
to the value of goods at the time of incorporation in  the  works  executed.
In our view, if the argument of the Department is to be accepted,  it  would
result in plurality of deemed sales  which  would  be  contrary  to  Article
366(29-A)(b) of the Constitution as held by the  impugned  judgment  of  the
High Court. Moreover, it may result in double taxation which  may  make  the
said 2005 Act vulnerable to challenge as violative of Articles 14,  19(1)(g)
and 265 of the Constitution of India as  held  by  the  High  Court  in  its
impugned judgment.”


            This raison d'etre shall apply, in full force,  while  answering
the question even in the context of the Karn5ataka Act.

We, therefore, hold that the  value  of  the  work  entrusted  to  the  sub-
contractors or payments made to them shall not be taken  into  consideration
while computing total turnover for  the  purposes  of  Section  6-B  of  the
Karnataka Act.  As a consequence, the two appeals which  are  filed  by  the
assessee are allowed and the appeal preferred by the Revenue  is  dismissed.
In the facts and circumstances of the case, there shall be no  order  as  to
costs.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)


NEW DELHI;
SEPTEMBER 05, 2016.

-----------------------
[1]   (2008) 9 SCC 191
[2]   AIR 1958 SC 560
[3]   (1989) 2 SCC 645

material omissions amount to vital contradictions which can be established by crossexamination and confronting the witness with his previous statement to the police."The right of both accused and the prosecution is limited to contradictions." It was, thus, held that omission to make a statement in terms of Section 161 of the Code of Criminal Procedure would not attract the provisions of Section 145 of the Indian Evidence Act. However, by reason of Code of Criminal Procedure explanation has been inserted to Sub-Section (2) of Section 162 which is in the following terms: "An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

PETITIONER:
LAXMAN AND OTHERS

Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT28/11/1973

BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH

CITATION:
 1974 AIR  303  1974 SCC  (1) 309
 CITATOR INFO :
 D    1985 SC1156 (49,53)


ACT:
Evidence  Act, Section 145-Important omissions by a  witness
in  the previous statements regarding participation  of the
accused in  the crime--whether contradictions within the
meaning of the section-Law laid down in Tahsildar Singh and
another v.  State  of U.  P. A. I.  R.  1959 S.  C. 1012
explained-Impact of omissions on the probative value of the
witnesses' evidence.



HEADNOTE:
In the trial u/s 302 read with s. 34 I. P. C., one Sopan was
convicted  on  the  evidence of one  Sudam,  the  only eye-
witness.   Sudam  admitted  in his  cross-examination that
neither before the  Executive Magistrate  nor before the
Committing  Magistrate, he stated that Sopan had beaten the
deceased with Rumana and that he bad stated the fact for the
first time before the trial Magistrate. Sudam also admitted
that Sopan did nothing and was simply standing there.  Sudam
also  stated  that he could watch the incident for  a very
short time as he himself was threatened by the accused and,
therefore, ran away.  The F.I.R. and dying declarations also
did  not mention the part played by Sopan in  the  incident.
The trial Court acquitted all the accused but the High Court
convicted  them.   As  regards the  omissions in   Sudam's
evidence,  the High Court held, following Tahsildar's  case,
that  the  omissions  do not amount  to contradictions and
cannot be  proved  to show that  the  witness was.  making
improvements. The  High  Court,  therefore,  ignored the
omissions.
Allowing Sopan's appeal (but not of the other two accused),
HELD . (i) We do not think that s. 145 of the Evidence Act,
on  the very reasoning of Tahsildar Singh's case,  cited  by
the High Court, was intended to exclude from, evidence what
is relevant and admitted, and, therefore, a proved  omission
from   having its  due  effect  in   the   assessment  of
probabilities. S.  145  of Evidence Act  applies  only  to
'contradictions.'   If there  are  omissions  in   Previous
statements  which do not amount to contradictions but  throw
some  doubt  on the  veracity of  what  was  omitted, the
uncertainty or doubt may be capable of removal by  questions
in  reexamination.   There  were no such  questions  put  to
Sudam. Neither proof nor use of such omissions,  which  do
not  amount  to contradictions is barred by s. 145  of the
Evidence  Act. The error the High Court had  committed was
that  it  entirely  excluded very  important,  relevant and
material omissions, from duly proved previous statements  of
the  witness Sudam from consideration altogether  as  though
they were quite irrelevant and in-consequential. [51 OF]
It  is not possible to lay down a general rule as  to what
effect a particular omission from previous statement  should
have  on  the probative value of what was so  omitted  by  a
witness.    The effect will depend upon  the totality  of
proved facts and circumstances in which the omission  might
have  taken  place.   It will often  be determined  by the
importance  of what  was  omitted.   The  Law of  Evidence
contains  nothing more than s. 3 and s. 114 of the  Evidence
Act  to indicate and illustrate the standards and  methods
employed in assessing the evidence. [510H]
(ii)The High Court ought to have examined the evidence of
Sudam, the only eye-witness, in the light of  the  material
omissions and found out how much Sudam actually saw with his
own eyes and how much of what he said could be attributed to
his  conjecture, surmise or imagination.  Sopan is  entitled
to benefit of the doubt, which emerges on an examination  of
the  whole  evidence in the case about the precise  acts  of
participation by him. 1513D]



JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 122
of 1970.
Appeal by special leave from the judgment and order  dated
24/;  25th  September  1968  of the  Bombay  High  Court  in
Criminal Appeal 1731 of 1965.
506
M.   C. Bhandare and P. H. Parekh, for the appellants.
H.   R. Khanna and S. P. Nayar for the respondent.
The Judgment of the Court wag delivered by
BEG, J.-The three appellants Laxman (aged 30 at the time  of
trial). Sopan (aged 18 at the time of trial), and  Sakharam
(aged  40 years at the time of trial), residents of  village
Walana were acquitted of charges under section 302 read with
section 34 I.P.C. by the learned Sessions Judge of Parbhani.
The  trial court had declared the testimony of the only eye
witness,  Sudam Sakharam,  P.S.  17,  to  be  unworthy  of
credence.   Neither  the several dying declarations  of the
deceased  Narain Rao, in which he gave out the names of the
three  appellants  as  his assailants nor  other  facts and
circumstances, such  as the recovery on a pointing  out  by
Sopan  of  the "Rumna" said to  have been  used  for the
murderous  attack,  were  held by the trial  Court  to  be
sufficient  to corroborate the version of the  eye  witness.
On an appeal against the acquittal, a Division Bench of the
High  Court of Bombay had elaborately discussed each one  of
the  reasons  given  by the  learned  sessions judge for
discarding  the testimony of Sudam, corroborated  by  other
facts  and  circumstances, and found the  logic behind the
trial  court's reasoning to be unsound. The High Court had
also  criticised  the learned Session's Judge in  treating
certain omissions from the previous statements of Sudam  as
damaging   contradictions   without   complying  with the
provisions of section 145 of Evidence Act.  It had relied on
Tahsildar Singh and anr. v. State of U.P.,(1) to support its
views  on the requirements of s. 145 of Evidence  Act. The
High  Court set aside the acquittal of the three  appellants
and convicted them under section 302 I. P.C. read with s. 34
IPC and sentenced them to imprisonment. for life.
in  the appeal by special leave, now before us, the  learned
counsel for the appellants has criticised the approach  of
the  High  Court,  its findings  on  individual  items  of
evidence,  and its view that the  omissions  from  previous
statements of the alleged eye witness Sudam could not affect
his credibility.  After having examined the judgments of the
trial  court  and  the High Court  and relevant  pieces  of
evidence in the case, and listening to the arguments of the
learned counsel for the appellants, who said all that  could
be urged to support this appeal, and learned counsel for the
respondent  State,  we think that the  appreciation  of the
evidence by the High Court was undoubtedly far superior and
that  interference  with  the  trial  Court's  judgment  of
acquittal  was justified.  Nevertheless, we find that  there
is  an aspect of the case relating to Sopan, who  was  a
student aged  about  18 years at the time  of the  alleged
offence, which has not been given due importance by the High
Court  so  as to determine whether this appellant  was en-
titled, as  we think he is, to the  benefit  of  doubt  as
regards his alleged participation in the actual  commission
of an offence.
(1)  AIR 1959 S.C. 1012.
507
The account of the occurrence given by Sudam, P.W. 17 may be
summarised as follows:--
The  witness, who knew, Narainrao, Sarpanch of Walana, had
been   engaged by  the Sarpanch  to  assist  him  in the
supervising  the  construction of a road under a  contract.
The Sarpanch got a commission and the witness got Rs. 3 per
day.   He left Walana with the Sarpanch at 8 . 00  A.M. for
village Mannas Pimpri to pay the wages of the labourers  on
30th  April, 1966, which was a Saturday.  Wages used  to  be
paid on Saturdays.  Laxman, appellant, met and followed them
on  the way saying that he too had to go to  Mannas  Pimpri.
As  the party reached Mahboob's field, Laxman lifted and
tucked in his Dhoti like a wrestler.  Then, Laxman  suddenly
caught hold of Narayan's right leg, and, putting  his left
hand  on  his  back, felled Narainrao  on  the ground face
downwards.   Narainrao's hands were under his body.   Laxman
caught and then sat on Narainrao's neck.  Narainrao raised a
hue and cry. When the witness tried to restrain Laxman and
caught his hand, hewas warned that he would be killed if he
interfered.  Just then, thewitness    saw    Sopan    and
Sakharam,  brother  and wards them. Sakharam  carried  a
'Ramna'.   The witness let go the hand of  Laxman.   While
Laxman sat  on the neck of Narainrao and pressed  it  down,
Sakharam  rained  blows with the 'Ramna'  on  the  back  of
Narainrao.  Sopan stood watching nearby- After Sakharam had
finished  beating Narainrao, Sopan took the same  Ramna and
started beating  him while Narain shouted :  'I  am  dead'.
Finally, Laxman took a big stone and threw it on the neck of
Narainrao.   As Laxman saw the  witness  watching  from  a
distance,  while escaping he said : "Catch this Mang". The
witness ran towards Walana.  He met, Bhika Kotwal of  Walana
on the way and informed him that Narainrao was being  beaten
by the' three accused. At Walana, he informed Abhiman, the
brother of  Narainrao, that the accused  were beating  up
Narainrao.   He then went to his sister's house  and  drank
some  water.   He  was about to go back  to  the  scene  of
occurrence when Laxman and Sopan came there.  Laxman said  :
'Take care Mang I If you testify in favour of the  Sarpanch,
you  would  be murdered'.  The witness was,  however, not
deterred  from going back to the scene of  occurrence  where
other villagers had. collected.
Attempts  were made by cross-examination to  discredit the
testimony of this witness.  Firstly, it was suggested to him
that two chits (Ex. 31 and 32), showing that the witness was
demanding Rs. 30/to spoil the prosecution case, were sent by
him.   But, as the High Court had rightly pointed  out, the
connection of this witness with writing on these chits could
not be established.  The trial Court had obviously erred  in
using  these chits to doubt the credibility of the  witness.
Secondly, it was urged that this witness had denied his con-
viction for an offence under s. 12 of the Gambling Act. The
learned Sessions  Judge had, in our opinion,  attached too
much  importance  to this denial. , The High Court,  on the
other hand, had examined the certified copy of the  criminal
case register (Ex. 42) filed to contradict the statement  of
this witness denying a conviction and had
508
held that, although one Sudam Sakharam of Bahar Jahagir was
shown to be one of two accused persons mentioned in the copy
filed, yet, the entries in the relevant columns did not show
anything beyond a fine of Rs. 5/- on Laxman, the co-accused.
The High Court also held that the identity of the particular
Sudam Sakharam mentioned in this copy was not established as
that of Sudam P.W. 17 and that there could be other  persons
of  that  name in the village. The  High  Court  had also
adversely  commented on the fact that the copy was not of  a
document kept in proper form.  It had been only signed by  a
clerk. No judgment and order of the Court was filed. The
High  Court  doubted  the  bona fides of  the defence  in
producing  what it considered to be a suspicious  copy  to
contradict one of the statements of the witness.  Even if we
do not question the bona fides of the defence in finding it,
the technical defect of want of proof of the exact  identity
of  Sudam  mentioned in the copy was  certainly there.  We
agree with the High Court that the trial court had made too
much  out of this alleged contradiction in the testimony  of
Sudam. Thirdly, it was sought to be shown that  Sudam had
improved the account of the incident given by him at earlier
stages by introducing, in his statement at the trial, what
he  had not said earlier.  The High Court held that  these
omissions were not "contradictions".  Alternatively, it held
that,  even  if an  omission here  could  be  viewed  as  a
'contradiction, it  could  not be  used  at  all   without
complying with s. 145 of the Evidence Act.
In Tahsildar's case (supra) the majority view of this  Court
by Subba Rao, J., was (at p. 1023) :-
     "Contradict according to the Oxford Dictionary
     meant to affirm to the contrary. Section 145
     of  the Evidence Act indicates the  manner  in
     which  contradiction  is brought out. The
     cross-examining counsel shall put the part  or
     parts  of the  statement which affirms the
     contrary to what is stated in evidence. This
     indicates that there is something in  writing
     which  can  be set against  another  statement
     made in evidence. If the statement before the
     police officer in the sense we have  indicated
     and  the statement in the evidence before the
     Court  are so inconsistent  or  irreconcilable
     with  each other that both of them cannot co-
     exist, it may be said that one contradicts the
     other.
     It  is  broadly  contended  that a  statement
     includes all omissions which are material and
     are  such as a witness is expected to  say  in
     the  normal course.  This contention  ignores
     the  intention of legislature expressed in  s.
     162  of  the Code and the nature of  the non-
     evidentiary value of such a statement,  except
     for  the limited purpose  of  contradiction.
     Unrecorded  statement is completely  excluded.
     But  recorded  one  is used  for a  specified
     purpose. The record of a statement,  however
     perfunctory,  is assumed to give a  sufficient
     guarantee to the correctness of the  statement
     made but if words not recorded are brought  in
     by some fiction, the objection of the  section
     would be defeated.
     509
     By  that process, if a part of a statement  is
     recorded, what was not stated could go in  on
     the sly in the name of contradiction,  whereas
     if the entire statement was riot recorded,  it
     would  be excluded.  By doing so, we would  be
     circumventing the section by ignoring the only
     safeguard imposed by the legislature,  viz.,
     that the statement should have been recorded".
     In the case before us we find that no question
     was  put at  all to  Sudam,  in his  cross-
     examination,  about  what he  bad  stated  or
     omitted  to  state to the police during the
     course of investigation. Cross-examination of
     the  witness  bad, however,  brought  out two
     material omissions from statements before the
     Executive Magistrate and the Committing Court.
     The witness said :
     "I  have not  stated  before  the   Executive
     Magistrate,  nor before the  committing  court
     that  accused nos. 2 and 3 bad obstructed me,
     when  I took to my heels. Sepan (accused no.
     2)  had  beaten Narainrao with  Rumna,  after
     taking the same from accused no. 3. I have not
     stated therefore the Executive Magistrate that
     accused no. 2 bad beaten Narainrao with Rumna.
     I have  not  stated  before  the  committing
     Magistrate that the accused no. 2 (Sopan) bad
     beaten  Narainrao.  I have stated before the
     Committing Magistrate that at the time of the
     incident, accused no. 2, did nothing  and  he
     was simply standing there".
     The High Court itself observed :
     "It is true that the witness had not made any
     statement before the  Committing  Magistrate
     regarding the part played by accused no. 2  in
     the  assault  on Narainrao but  that  may  be
     because he was not questioned on that point at
     that  time.   The same can be said  about the
     statement before the Executive Magistrate."
     It then went on to say
     "It  cannot, however, be said that be bad not
     made  any statement on the point before the
     Police.  As we will presently point out, it is
     not  possible to any that the witness had not
     made  any statement on the point before the
     Police, but, assuming for the present that  he
     bad  not made any such statement, it would  be
     only  an omission presumably due to  his not
     being questioned on the point.  That cannot be
     of any help to the defence to suggest that the
     witness was making intelligent improvements as
     assumed 'by the learned Judge.  The  omission,
     if  at all it is there, is not such  as  would
     amount to controdiction and cannot, therefore,
     be proved to show that the witness was  making
     improvements."
In so far as the High Court was presuming, from the  failure
of  the defence  to cross-examine  the witness  about any
assatement  before  the police,  that there  was  no such
omission in his statement before
M602SupCI/74
510
the  police,  the High Court was assuming the  existence  of
something which could not have been used by the prosecution
to corroborate its case even if it existed.  The High  Court
had  then, proceeding on the assumption that there was such
an  omission  from the statement of the witness before the
police, explained an assumed infirmity in it by holding that
this   constituted  neither  a contradiction  nor  was  it
inexplicable  by  a failure to question the witness  on the
point  during the investigation as though it was no part  of
the duty of the police to elicit or ascertain what part was
played by each accused in the occurrence before prosecuting
him.
If  we were to assume that the witness had revealed  to the
police the  part alleged by him at the trial to  have been
played by Sopan, it would make it all the more incumbent  on
the prosecution to bring out this part when the witness was
making his statement in his examination-in-chief before the
Magistrates.  The statements before the magistrates could be
used both to contradict and to corroborate.  The prosecution
had  performed its duty in questioning the witness, when  he
was  deposing at the trial, about the part played by  Sopan.
It should not have gone to sleep at earlier stages and then
tried  to fill up the possible gaps in the evidence on this
part of the case at the trial. If it does this, so that  an
important prosecution witness appears to be introducing new
allegations which are vital for determining the liability of
an accused, the new statements are bound to arouse suspicion
and doubt.
It  may not be out of place to mention here that  the 11th
Report of the Criminal Law Revision Committee in  England,
has  recommended the abrogation of several artificial  rules
of  evidence  which may result in the exclusion of  what  is
logically  relevant (See : Criminal Law Review, June,  1973,
p.  329).  So far as our law goes. we do not think  that  s.
145 of the Evidence Act, on the very reasoning of  Tahsildar
Singh's case (supra), cited by the High Court, was  intended
to exclude from evidence what is relevant and admitted, and,
therefore,  a proved omission from having its due effect  in
the assessment of probabilities.  Section 145, Evidence Act
applies only to 'contradictions'. if there are omissions  in
previous  statements which do not amount  to  contradictions
but  throw some doubt on the veracity of what  was  omitted,
the  uncertainty  or  doubt may be  capable  of removal  by
questions  in re-examination.  There were no such  questions
put  to Sudam in the case before us.  Neither proof nor use
of such omissions, which do not amount to contradictions, is
barred by Sec. 145.  Evidence Act.
is not possible to lay down a general rule as to what effect
a particular omission from a previous statement should have
on the probative value of what was so omitted by a  witness.
The effect will depend upon the totality of proved facts and
circumstances  in which the omission might have taken  place
It  will often be determined by the importance of wtiat was
omitted.  Oar enacted law of evidence contains nothing more
than sections 3 and 114 of the Evidence Act to indicate and
illustrate  the standards and methods employed in  assessing
the evidence.  The error the High Court had committed in
511
the  case  before  us was that it  entirely  excluded very
important,  relevant,  and  material  omissions,  from duty
proved previous  statements  of  the  witness Sudam from
consideration altogether   as though they were   quite
irrelevant and inconsequential.
Quite  apart  from the error of the High Court in  assuming
that a material omission from a previous statement, even  if
it is not to be treated strictly as a contradiction, must be
ignored in evaluating the testimony of the only eye  witness
on  so important a matter, for determining the liability  of
Sopan, we think that what Sudam P.W. 17 had omitted to state
before the  Magistrates  ought also  to  have been more
critically  examined  and tested by the High  Court  in the
light  of  probabilities  and the natural  course  of  human
conduct.    The  important   question which arose for
determination on facts and circumstances disclosed by  Sudam
himself was :
     How  much did Sudam actually see with his own
     eyes and how much of what he said could be not
     unreasonably    attributed   to conjecture,
     surmise, or imagination on his part?
     Before we discuss the evidence further, we may
     observe that Professor Munsterberg, in a book
     called  "On the Witness Stand" (p. 51),  cited
     by  Judge Jerome Frank in his  "Law  and the
     Modern  Mind" (see : 1949 ed. p. 106),  gives
     instances of experiments conducted by enacting
     sudden  unexpected preplanned episodes  before
     persons  who  were then asked to write  down,
     soon afterwards, what they had seen and heard.
     The astounding result was :
     "Words were put into the mouths of men who had
     been silent spectators during the whole  short
     episode; actions were attributed to the  chief
     participants of which not the slightest  trace
     existed; and   essential   parts   of the
     tragicomedy  were completely  eliminated from
     the memory of a number of witnesses".
Hence, the Professor concluded : "We never know whether  we
remember,   perceive, or  imagine". Witnesses   cannot,
therefore,  be branded as liars in toto and their  testimony
rejected  outright  even if parts of  their  statements are
demonstrably  incorrect or doubtful.  The astute  judge can
separate  the grains of acceptable truth from the  chaff  of
exaggerations and improbabilities which cannot be safely  or
prudently accepted and acted upon.  It is sound commonsense
to  refuse to apply mechanically, in assessing the worth  of
necessarily  imperfect human testimony, the maxim :  "falsus
in uno falsus in omnibus."
Reverting  to the evidence in the case, we find that  Sudam
was,  as  is quite natural, in a hurry to get  back  to the
village because, apart from the fear of the accused  (Laxman
had  actually threatened to kill him and the other  two had
also  been alleged by him to have attempted to prevent his
escape),  he had to inform the relations of  Narainrao soon
about  what he had seen.  And, he deposed that he told both
Bhika  Kotwal and Abhiman (P.W. 2) when he met them,. that
Narainrao  was "being" beaten, or,  in  other words, the
beating had not come
512
to  an end when he ran away from the scene  of occurrence.
Moreover,  he  was quite far when Sopan is alleged  by him,
apparently  for the first time it the-trial, to have  taken
his turn to beat the deceased with the Rumna.  Even the last
act attributed by him to Laxman who is said to have hurled a
big  stone at the neck of Narainrao lying on the ground,  is
not  corroborated by medical evidence, Moreover, it was not
possible for Sudam to have observed from a distance that the
stone hurled by Laxman actually hit Narain on his neck.  He
could have mistaken some act of Sopan, such as throwing away
of the Rumna, for an assault with it claimed by him to have
been seen from a distance as he turned his head back to see
whilst escaping.   We, therefore, conclude  that,  although
Sudam  was  there to witness how the attack  began,  he had
probably  drawn upon his imagination to some extent to give
the details of how it ended.
We  next turn to the several dying declarations put  forward
to corroborate the statement of Sudam. These show that the
three  appellants were present at the attack upon  Narainrao
and  were  thought  by Narainrao  to  have  participated  in
beating him. These dying declarations,  however,  do not
mention the particular part assigned by Sudam to  Sopan  in
his  deposition at the trial.  This is natural as  Narainrao
was  not in a position to see the actual assailant after  he
was  pinned down to the ground with his face  downwards and
Laxman sitting on his "neck". He could only guess who was
striking him on the back.
The  first dying declaration, made to Mahboob, P.W. 10, did
not  impress the High Court.  The second was made to  Piraji
P.W.  9,  the  third to Laxmanramji P.W. 2 and the  4th  to
Datarao P.W.  3, the Sarpanch of Mannas Pimpri.   The High
Court  had  rightly  observed  that  the  last three  dying
declarations  made  to villagers, who had assembled  at the
scene of occurrence before Narainrao died, could not be held
to be false as the medical evidence indicated that he  could
remain conscious for some time after the attack.  The more
important question for determination, therefore, was :
"To what extent do the dying declarations corporate Sudam?"
Neither the dying declarations nor the F.I.R. lodged at the
police station by Abhiman P.W. 12, the brother of Narainrao,
on  30-4-1966. at 12 30 p.m. disclose the parts  played  by
each  of the three accused.  The report sent by Abhiman  is
actually signed by Sudam P.W. 17.  It is true that, at that
time, it was not known that Narainrao would die.  But, both
Sudam  and Abhiman knew that a very severe beating had been
given  to Narainrao.  We think that it is unlikely that,  if
Sudam  had seen the details of the way in which the  beating
of  Narainrao  ended, no details of it whatsoever  would  be
given in the report sent by Abhiman to the police which was
signed by Sudam.  Thus, the proved omission of the last part
of  Sudam's  version  from the F.I.R. as well  as  from his
proved previous  statements before the Executive  and the
Committing Magistrates, combined with the unlikelihood that
he could either stay long enough at the scene to see how the
beating ended or
513
would  be  able to see this well enough when he turned his
head back while running away and his own admitted statements
to  other  witnesses throw that part of the story  in  which
Sopan appellant is said to have taken his turn in beating of
Narainrao in the region of reasonable doubt.
Sopan, appellant,  a young man, may  have  accompanied his
elder  brother, Laxman, and his cousin,  Sakharam,  out  of
curiosity.   He may have watched the beating. Sudam's own
statement before the committing magistrate quoted above, was
that  this  is all that Sopan did there, although  the High
Court thought fit to explain it away by believing that this
assertion was confined to the earlier stage of the  beating.
According  to  the  High Court's  finding,  Sopan  was only
standing  at least when Sakharam was giving the eating with
the 'Rumna'.  He must have accompanied his elder brother and
cousin back to the village.  Sopan may have even taken and
thrown the 'Rumna' or known where it was lying.   The fact
that he indicated the place from where it could be recovered
would  not be sufficient to establish his  participation  in
the incident beyond reasonable doubt.  Therefore, we are  of
the  opinion  that  Sopan, appellant,  is  entitled  to the
benefit of the doubt which emerges on an examination of the
whole  evidence in  the  case about  the  precise  acts  of
participation by him.  As regards Laxman and Sakharam  there
is  no room for doubt that they actually attacked  Narainrao
deceased as stated by Sudam.  The manner in which  Narainrao
was  said  to be beaten, corroborated by  medical  evidence,
makes it impossible for the beating to have been given by  a
single individual.  The participation of Laxman and  Saharam
in  the actual commission of the  offence  is,  therefore,
established  beyond  any  reasonable  doubt.   The   medical
evidence  also leaves no doubt that the  beating  was such
that,  in the ordinary course of nature, it would cause the
death of Narainrao.
We,  therefore, think that Laxman and Sakharam  appellants
have  been rightly convicted under section 302 read with  s.
34  I.P.C.  and sentenced to life imprisonment.  Hence,  we
dismiss the appeal of Laxman and Sakharam and affirm  their
convictions  and  sentences.  We allow the appeal  of  Sopan
appellant  and set aside his conviction and  sentence.  We
order  that Sopan be set at liberty forthwith unless  wanted
in some other connection.
S.B.W.     Appeal allowed in part.
514

Veer Chandra Singh Garhwali Marg. = We have adverted to the affidavit which has been filed on behalf of the Appellants during the course of the hearing and to the undertaking that the Appellants would by December 2018 restore the road in accordance with the terms of the approved layout plan. In other words, the closure of the road is not of a permanent nature but is of a temporary character to facilitate the completion of the work. Presently, it has been stated that Veer Chandra Singh Garhwali Marg has been excavated to a depth of 35 to 40 feet for facilitating the construction of basements which will be interconnected at points which would fall under the road. A temporary closure of ingress and egress has been necessitated to avoid any mishaps. That being the position, we see merit in the grievance of the Appellants that at this stage, the balance of convenience would lie in allowing the completion of the project. We accept the assurance furnished by the Appellants on affidavit and through the learned Attorney General in Court. The project for re-development having received the statutory approvals, it is necessary to facilitate the completion of the project on schedule. The statements which have been made on behalf of the Appellants in the further affidavit as well as the undertaking would adequately protect the concerns of the petitioners who had moved to the Delhi High Court. At the same time, we deem it appropriate and proper in the interests of justice to remit the proceedings to the High Court to consider whether any additional safeguards should be introduced so as to allay the genuine apprehensions of the petitioners before it. For that purpose, the proceedings shall stand remitted back to the High Court for the limited purpose of considering whether any such additional safeguards are required and if deemed necessary to provide for them. In the meantime, we clarify that in view of the statements made before this Court on affidavit by the Appellants and the undertaking before this Court as noted earlier the project for re- development shall proceed unhindered. However, we leave it to open to the High Court to impose suitable safeguards in pursuance of the present judgment, to allay the apprehensions of the original petitioners.

                                                                  REPORTABLE

        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  8747 OF 2016
                  [Arising out of SLP (C) No.23464 of 2016]

NATIONAL BUILDING CONSTRUCTION                                  …APPELLANTS
CORPORATION LTD & ORS.

                                   Versus



KHOSMENDIR SINGH GAHUNIA & ORS.                      …RESPONDENTS



                                    With

                       CIVIL APPEAL No.  8748 OF 2016
                  [Arising out of SLP (C) No.23912 of 2016]




                               J U D G M E N T



Dr D Y CHANDRACHUD, J

            Leave granted.

2     These Appeals by the National  Building  Construction  Corporation,  a
public sector enterprise, arise from a judgment and order of the Delhi  High
Court dated 7 April 2016.

3     Under the Master Plan of 2021, Delhi Development  Authority  issued  a
Zonal Development Plan for Zone (Division) -D on 27 July 1993,  under  which
Kidwai Nagar East was earmarked as a colony for re-development. Spread  over
an area of 86 acres, the colony comprised of 2331 housing  units  meant  for
employees of the Central Government.   Apart  from  residential  units,  the
colony had  three  schools  and  two  local  shopping  markets.  Within  its
precincts, there is a protected monument, called Darya  Khan’s  Tomb  on  an
area of about 2 acres.

4     The Master Plan took  effect  on  7  February  2007,  following  final
approval and a notification in the Gazette of India. Following the  approval
of the plan for re-development by the Union Cabinet on 12 October  2010  and
by the Cabinet Committee on Economic Affairs on 23 March 2012, a  Letter  of
Intent was issued to the Appellants who  were  nominated  as  the  executing
agency on 22 June 2012. The projected cost of re-development of  the  colony
is Rs. 5,300/- crores with a  stipulated  date  of  completion  of  December
2019. The project envisages  the  construction  of  4608  residential  units
(comprised of type II-VII residential units) for employees and  officers  of
the Union Government and office space for its agencies.

5     The petitioner submitted a  layout  plan  together  with  a  plan  for
             re-development, for sanction to the NDMC on 23  July  2012.  An
environment clearance was issued on 13 August 2012. On 18 October 2012,  the
Ministry of Urban Development handed over the land  to  the  Appellants  and
issued no objection certificate for re-development.   The  new  layout  plan
and plan of proposed structures was sanctioned by NDMC  on  13  March  2014.
The work of                  re-development has proceeded  upon  receipt  of
statutory clearances.

6     The bone of contention is a road by the name  of  Veer  Chandra  Singh
Garhwali Marg. The road traverses a distance of 680 meters  commencing  from
Aurobindo Marg to its terminal point at Darya Khan’s Tomb.

7     Writ Petitions were filed before the Delhi High  Court  under  Article
226 of the Constitution by  the  Residents’  Welfare  Association  of  South
Extension  Part-I,   and  by  associations  inter  alia   representing   the
residents of  Kotla Mubarakpur  and  Village  Pillanji,  among  others.  The
grievance in the Writ Petitions was that after re-development  commenced  in
September 2013, NBCC progressively encroached upon the public  road.  On  24
December 2015, the residents of South Extension,  Part-I,  Village  Pillanji
and Kotla Mubarakpur found that the road had been  completely  cordoned  off
and blocked. A sign board  was  put  up  stating  that  the  road  would  be
permanently closed on 10 January 2016. As a result of  the  closure  of  the
road, which according to the petitioners before the High Court is  a  public
road, access was  being  denied  from  Aurobindo  Marg  for  onward  journey
towards South Mehrauli or North Central Delhi  and  beyond.  The  action  of
NBCC of closing what is described as a public street within the  meaning  of
the NDMC Act 1994, was urged to be contrary  to  law;  the  grievance  being
that the residents of localities in the area had utilized  it  for  over  60
years to access Aurobindo Marg, INA  metro  station  and  market  and  other
public amenities.

8     A mandamus was sought inter alia to the  Appellants  to  maintain  the
road by the removal of encroachments made thereon. A  prohibitory  direction
was sought for restraining the Appellants from closing the road.

9     During the course of the hearing of  the  Writ  Petitions  before  the
High  Court,  the  Appellants  and  NDMC  filed  their  respective   counter
affidavits. The defense of  the  Appellants  was  that  Veer  Chandra  Singh
Garhwali Marg together with other roads and passages inside the  colony  are
internal roads and do not constitute a public street within the  meaning  of
Section 2 (39) of the  NDMC  Act,  1994.   The  case  which  the  Appellants
specifically pleaded in their counter affidavit was that in the layout  plan
which was sanctioned by NDMC, the road in question was not  reflected  as  a
road or passage and infact formed a portion of  a  new  building/tower.  The
Appellants relied upon the fact that on 1 October 2013, the  office  of  the
Superintending  Engineer  (Roads-II),  NDMC  had  issued  a   no   objection
certificate in respect  of  roads  and  pavements  before  the  project  was
approved. The Appellants contended that if the road was a public  street  as
alleged in the Writ Petition, the layout plan would not have  been  approved
by NDMC. In the following extract from the counter affidavit  filed  by  the
Appellants in the High Court it was stated specifically that  the  road  was
not shown as a road/passage in the new layout plan sanctioned by NDMC :

“The layout plan submitted with NDMC is a entirely new plan  which  contains
complete changes  of  buildings  layout,  internal  passages/road  etc.  the
existed internal road in question i.e. “Veer Chandra  Singh  Garhwali  Marg”
was not shown as road/passage in the new plan  and  it  is  portion  of  new
building/tower. The internal road/passages  were  therefore  altered/shifted
as per new layout plan, the new layout plan and internal  passages/roads  in
the layout plan and detailed plans were submitted by  respondent  No.  2  to
NDMC  for  approval  and  same  was  duly  approved/sanctioned  by  NDMC  on
19.3.2014 under Section 217  showing  building/Tower  thereon,  open  space,
park, school market, space for other public purpose, allotment of  site  for
street,   line    of    streets    etc.         (Id.    at    p-    120-121)
               (emphasis supplied)



On the other hand in the counter affidavit that was  filed  by  NDMC  before
the High Court, it was stated that while sanctioning the  layout  plan,  the
road had been retained  and  only  its  entry  and  exit  points  have  been
shifted. The counter affidavit contains the following statement :

“That in the Zonal Development Plan (Zone-D), a  30  mt.  wide  road  starts
from Aurobindo Marg upto surrounding  of  Darya  Khan’s  Tomb.  Accordingly,
answering Respondent sanctioned the layout plan wherein the  said  road  was
retained,  only  the  entry  and  exit  points  have  been  shifted  towards
Aurobindo  Marg  as  per  the  NOC   of   UTTIPEC   [Unified   Traffic   and
Transportation Infrastructure) (Plg. & Engg.) Centre].        (Id. at p-136-
137)              (emphasis supplied)





This is again reiterated in paragraph  7  of  the  counter  affidavit  which
reads as follows :

“7).  It is also wrong and denied that  the  said  road  is  closed  by  the
answering Respondent. It is further denied that the said  road  emanates  at
the Aurobindo Marg on one side and passes by the  Darya  Khan’s  Tomb,  east
Kidwai Nagar, New Delhi. It is further submitted that  answering  Respondent
sanctioned the layout plan wherein the said road  has  been  retained,  only
the entry and exit points have been shifted towards Aurobindo  Marg  as  per
the NOC of UTTIPEC [Unified Traffic and Transportation Infrastructure  (Plg.
& Engg.) Centre.]           (Id. at p-137)



10    In this background, what clearly emerged before  the  High  Court  was
the clear and categorically statement in the affidavit by NDMC that  in  the
layout plan which it had sanctioned, the road had been maintained.  Contrary
to this was the statement of the Appellants as the executing agency  of  the
project that the road is not shown as a road or passage in the new plan  and
that it was infact a portion of a new building tower.  In  this  background,
the Division Bench of the High Court while placing reliance on  the  counter
affidavit filed by NDMC held that it was not open to the Appellants to  shut
down the road, which was in existence  for  sixty  years,  for  an  unstated
duration as was  sought  to  be  done  without  the  issuance  of  a  proper
sanction.

11    NDMC was accordingly directed to take appropriate steps for  enforcing
the sanctioned layout plan for the  area  in  question  pertaining  to  Veer
Chandra Sigh Garhwali Marg and  to  take  all  necessary  and  consequential
steps in accordance with law.

 12   When the Appellants filed Special Leave Petitions  before  this  Court
seeking to challenge the judgment of the Delhi High Court,  they  reiterated
the position that the road had been shifted under the approved plan to  make
way for the construction of 3 towers comprising of a  ground  floor  and  14
floors with 3 basements.

13    During the course of the hearing, the learned Attorney  General  urged
that the road was being only temporarily closed to facilitate  the  work  of
construction.  Moreover,  it  was  submitted  that  save  and   except   for
realignment of the entry and exit points, the road would  be  retained.  The
hearing was adjourned to enable the Appellants to clarify this  position  in
a further affidavit. During the course of the hearing  a  further  affidavit
has been filed on behalf of  the  Appellants.  In  the  affidavit  filed  on
behalf of the Appellants by Shri Arun Kumar Sharma,  who  is  working  as  a
General Manger (Engineering) for the re-development  project,  reliance  has
been placed on the approved layout plan. It has been stated that  under  the
approved plan of 12 February 2014, the road has been realigned at its  entry
and exit points as indicated in the  plan.  Paragraph  3  of  the  affidavit
inter alia states as follows :

“3). The entry point from Point “A”  to Darya Khan’s Tomb will  have  to  be
closed for a  temporary  period  for  carrying  out  necessary  construction
activities of the  project  by  the  Petitioner.  After  completion  of  the
requisite construction activities, the petitioner shall  rebuild/re-lay  the
said   road   with   entry/exit   as   per   the   approved   layout   plan.
(Id. at p-1)



The statements in paragraphs 4 and 6 of the affidavit are material  for  the
purposes of the present controversy and read as follows :

“4). The petitioner respectfully submits that the petitioner is required  to
close the said road  at  this  stage,  at  least  till  December  2018,  for
undertaking major construction and related  activities  at  site,  including
the road (interconnecting basements  and  other  underground  services  viz.
sewerage  connection,  electricity  and  water).  The  stipulated  date   of
completion of the project is 30.11.2019. However, it shall be  the  endeavor
of the Petitioner to restore the road by the end of December 2018…

6). Currently, the Veer Chandra Singh Garhwali Marg  is  dug  up  on  either
side about 35-40  feet  in  depth  for  facilitating  construction  work  of
basements which will be interconnected at points which would fall under  the
said road. The use of this road which is currently being done by the  public
is fraught with danger. The ingress and  engress  of  the  public  including
commercial transporation needs to be stopped forthwith to avoid any  mishaps
and the said road  will  be  used  by  the  Petitioner  for  completing  the
project. The road will be reopened after the realignment from Point  “B”  by
the             end             of              December              2018.”
 (Id. at p- 2)



14    During the course of the hearing,  it  has  been  stated  before  this
Court that a temporary closure of the road is required until  December  2018
and that the road would be reopened after realignment of the entry and  exit
points as indicated in the approved plan.

15    The Delhi High Court cannot be faulted for  having  proceeded  on  the
basis of the clear statement in the counter affidavit filed by NDMC  to  the
effect that it has  sanctioned  the  layout  plan  in  which  the  road  was
retained and it was only the entry and exit points which have  been  shifted
towards Aurobindo Marg in accordance with the  NOC  issued  by  the  Unified
Traffic and Transportation Infrastructure  (Planning  &  Engineering).  This
being the clear and categoric statement of the planning authority, the  High
Court observed that the Appellants were bound by the layout plan  which  was
sanctioned by NDMC. We also take note of the fact that  in  the  application
that  was  submitted  by  the  Appellants  to  the  State  Expert  Appraisal
Committee (a copy of which is  attached  as  Annexure  “A”  to  the  further
affidavit filed on behalf of the Appellants), it has been  stated  that  “no
new road will be constructed during construction or operation.”

16    The position that now emerges  before  this  Court  from  the  further
affidavit which has been filed on behalf  of  the  Appellants  is  that  the
existing road shall be closed temporarily until December 2018.  This  is  to
facilitate the work of reconstruction and to obviate any danger or  mishaps.
The closure is temporary and not for an indefinite duration. The  Appellants
have furnished an undertaking to restore the road to its original  form  and
width thereafter in terms of the approved plan.

17    The  original  petitioners  before  the  High  Court,  have  expressed
apprehensions during the course of the hearing about whether the road  would
be restored in a manner as is required under the sanctions issued  by  NDMC.
On their behalf,  it  has  been  urged  that  necessary  safeguards  may  be
instituted by this Court so that these apprehensions are  duly  allayed.  On
the other hand, the learned Attorney General submitted that as a  result  of
the judgment of the Delhi High Court, the execution of  the  project,  which
involves an outlay  of  Rs.  5,300/-crores,  has  been  stalled  and  it  is
necessary for the earlier completion of  the  project  that  this  state  of
impasse  should  end.  Moreover,  it  has  been  urged  that  the   original
petitioners before the High Court are not residents  of  Kidwai  Nagar  East
which was a colony for government  servants  but  are  residents  of  nearby
localities. It was urged that a temporary closure of the road to  facilitate
the progress of the work would not cause any prejudice to the  residents  of
colonies in the vicinity who have alternative means of ingress  and  egress.
Moreover, it was urged that since the Appellants  have  now  stated  clearly
that they shall restore the road by December 2018  in  accordance  with  the
terms of the approved layout  plan,  the  apprehensions  of  the  residents’
associations would be duly met.

18    We have adverted to the affidavit which has been filed  on  behalf  of
the Appellants during the course of the hearing and to the undertaking  that
the Appellants would by December 2018 restore the road  in  accordance  with
the terms of the approved layout plan. In other words, the  closure  of  the
road is not of a permanent  nature  but  is  of  a  temporary  character  to
facilitate the completion of the work.  Presently, it has been  stated  that
Veer Chandra Singh Garhwali Marg has been excavated to a depth of 35  to  40
feet  for  facilitating  the  construction  of  basements  which   will   be
interconnected at points which  would  fall  under  the  road.  A  temporary
closure of ingress and egress has been necessitated to  avoid  any  mishaps.
That being the position, we see merit in the  grievance  of  the  Appellants
that at this stage, the balance of convenience would  lie  in  allowing  the
completion of the  project.   We  accept  the  assurance  furnished  by  the
Appellants on affidavit and through the learned Attorney General  in  Court.
The project for re-development having received the statutory  approvals,  it
is necessary to facilitate the completion of the project  on  schedule.  The
statements which have been made on behalf of the Appellants in  the  further
affidavit as well as the undertaking would adequately protect  the  concerns
of the petitioners who had moved to the Delhi High Court. At the same  time,
we deem it appropriate and proper in the interests of justice to  remit  the
proceedings to the High Court to consider whether any additional  safeguards
should be introduced so  as  to  allay  the  genuine  apprehensions  of  the
petitioners before it.   For  that  purpose,  the  proceedings  shall  stand
remitted back to the High Court  for  the  limited  purpose  of  considering
whether any such additional safeguards are required and if deemed  necessary
to provide for them. In the  meantime,  we  clarify  that  in  view  of  the
statements made before this Court on affidavit by  the  Appellants  and  the
undertaking  before  this  Court  as  noted  earlier  the  project  for  re-
development shall proceed unhindered. However, we leave it to  open  to  the
High Court to  impose  suitable  safeguards  in  pursuance  of  the  present
judgment, to allay the apprehensions of the original petitioners.

19    The Civil Appeals shall accordingly stand disposed of in these  terms.
The order passed by the High Court shall accordingly  stand  substituted  by
the above directions. No costs.



             .........................................CJI
                                                             [T S  THAKUR]


             ............................................J
                                                              [A M
KHANWILKAR]



.............................................J
                                                          [Dr D Y
CHANDRACHUD]
New Delhi
September 02, 2016.