Specific Performance - In my view section 48(d) of the said Act of 1960 will not affect the legality of the suit agreement. In view of section 54 of the Transfer of Property Act, 1882 agreement for sale does not create any interest in favour of the purchaser in respect of the immovable property. Therefore, agreement for sale cannot be treated as alienation or transfer within the meaning of clause (d) of section 48 of the said Act of 1960. Apart from this fact, the Appellate court has observed that the original Defendant Nos. 1 and 2 have agreed to sell only a small portion of the property over which charge has been created in favour of the Land Development Bank and part of the loan has been repaid. 4. So far as the second submission regarding readiness and willingness is concerned, I find that the Appellate Court has discussed the entire evidence. The Appellate Court after considering the pleadings and oral and documentary evidence on record has come to the conclusion that the Plaintiff has established his readiness and willingness to 6 perform his part of the contract. The Appellate Court has observed that if at all any permission for transfer was to be obtained, the same was the obligation of the Defendants. So far as the bar of limitation is concerned, I find that in the Appellate Court the said issue was not specifically raised. The same was the case with the trial Court. The issue of limitation is a mixed question of law and fact considering the relevant provisions of the Limitation Act, 1963 which deal with the limitation for suit for specific performance.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6069 OF 2008
Balwant Vithal Kadam ….Appellant(s)
VERSUS
Sunil Baburaoi Kadam …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the defendants against
the final judgment and order dated 24.07.2006
passed by the High Court of Bombay in Second
Appeal No. 426 of 2004 whereby the High Court
dismissed the second appeal filed by the appellants
herein and affirmed the judgment and order dated
03.10.2002 passed by the 8th Additional District
Judge, Satara in R.C.A. No.9/1996, which arose out
of judgment/decree dated 29.11.1995 passed by the
1
2
nd Joint Civil Judge, Satara in R.C.S. No. 265 of
1989.
2. In order to appreciate the controversy, which
lies in a narrow compass, few relevant facts need
mention hereinbelow.
3. The appellants are the defendants whereas the
respondent is the plaintiff in a suit out of which this
appeal arises.
4. The respondent filed a suit being Civil Suit No.
265/89 in the Court of 2nd Joint Civil Judge, Satara
against the appellants for specific performance of
the two agreements, dated 11.10.1982(Ex.48) and
11.04.1983(Ex.68) to purchase 1/12th share of the
appellants in the land which belonged to them
situated at Eastern potion of Gat. No.594/1
admeasuring 2 hectares 18 Acre situated at
Malegaon Taluka and District Satara(hereinafter
referred to as “suit land”).
2
5. The sale consideration was fixed at
Rs.10,000/-. The respondent had paid Rs.3,000/-
by way of earnest money to the appellants. The sale
deed was to be executed within 6 months. Since the
dispute arose between the parties and no sale deed
was executed, the respondent filed a suit to seek
specific performance of the said agreement against
the appellants in relation to the suit land.
6. The appellants contested the suit by filing their
written statement. Parties adduced evidence. The
Trial Court, by judgment/decree dated 29.11.1995
in R.C.S. No.265/1989, dismissed the suit.
7. The respondent (plaintiff) felt aggrieved and
filed first appeal being Regular Civil Appeal No.
9/1996 in the Court of VIIIth Additional District
Judge, Satara. By judgment/decree dated
03.10.2002, the VIIIth Additional District Judge,
allowed the appeal, set aside the judgment/decree
of the Trial Court and decreed the respondent's suit.
3
8. Felt aggrieved, the appellants (defendants) filed
second appeal in the High Court of Bombay being
S.A. No. 426/2004. By impugned judgment/decree,
the High Court dismissed the defendants’ second
appeal, which has given rise to filing of the present
appeal by way of special leave in this Court by the
defendants.
9. Initially, there were two appellants. By order
dated 28.10.2013 passed by this Court, the appeal
against appellant No.1 was held abated.
10. Heard Mr. Sudhanshu Chaudhari, learned
counsel for the appellant and Mr. Varun Mathur,
learned counsel for the respondent.
11. Learned counsel for the appellant (defendant
No.2) while assailing the legality and correctness of
the impugned judgment argued that, firstly, the
respondent's suit was misconceived inasmuch as no
specific performance in relation to the agreement in
question was permissible in the light of bar created
by Section 31 of the Bombay Prevention of
4
Fragmentation and Consolidation of Holdings Act
(hereinafter referred to as “the Act”) which,
according to learned counsel, prohibited any
transfer of holding and, more particularly, a
fragment such as the one in the case at hand.
12. In the second place, learned counsel attacked
the findings of the High Court recorded on three
pleas raised by the appellant in the second appeal
and contended that all the three pleas deserve to be
upheld in appellant’s favour.
13. Learned counsel for the respondent, in reply,
supported the reasoning and the conclusion of the
High Court and contended that the impugned
judgment does not call for any interference and
hence deserves to be upheld.
14. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dismiss the appeal finding no merit
therein.
5
15. This is how the High Court dealt with three
pleas in the impugned judgment:
“2. Shri Thorat appearing for the Appellants
submitted that as the suit agreement for sale
was executed in contravention of section
48(d) of the Maharashtra Cooperative
Societies Act, 1960 the agreement itself was
void and therefore, specific performance of
the agreement could not have been granted.
He submitted that the finding of the trial
Court on the issue of readiness and
willingness of the original Plaintiff has been
upset by the Appellate Court without dealing
with the reasoning of the trial Court. Lastly
he submitted that the suit filed by the
original Plaintiff was barred by limitation.
3. I have considered the submissions. In my
view section 48(d) of the said Act of 1960 will
not affect the legality of the suit agreement.
In view of section 54 of the Transfer of
Property Act, 1882 agreement for sale does
not create any interest in favour of the
purchaser in respect of the immovable
property. Therefore, agreement for sale
cannot be treated as alienation or transfer
within the meaning of clause (d) of section 48
of the said Act of 1960. Apart from this fact,
the Appellate court has observed that the
original Defendant Nos. 1 and 2 have agreed
to sell only a small portion of the property
over which charge has been created in favour
of the Land Development Bank and part of
the loan has been repaid.
4. So far as the second submission regarding
readiness and willingness is concerned, I find
that the Appellate Court has discussed the
entire evidence. The Appellate Court after
considering the pleadings and oral and
documentary evidence on record has come to
the conclusion that the Plaintiff has
established his readiness and willingness to
6
perform his part of the contract. The
Appellate Court has observed that if at all any
permission for transfer was to be obtained,
the same was the obligation of the
Defendants. So far as the bar of limitation is
concerned, I find that in the Appellate Court
the said issue was not specifically raised. The
same was the case with the trial Court. The
issue of limitation is a mixed question of law
and fact considering the relevant provisions
of the Limitation Act, 1963 which deal with
the limitation for suit for specific
performance.”
16. In our considered opinion, no fault could be
found in the three findings of the High Court
recorded on three pleas as the reasoning and the
conclusion arrived at by the High Court is just and
proper calling for no interference by this Court in
the appeal.
17. So far as the plea relating to validity and
enforceability of the agreement in question is
concerned, it was rightly held by the High Court to
which we concur that the agreement in question is
not hit by Section 48 of the Maharashtra
Co-operative Society Act inasmuch as the
agreement to sell in itself does not create any
7
interest in the land nor does it amount to sale
under Section 54 of the T.P. Act. It only enables the
intending buyer to claim specific performance of
such agreement on proving its terms. In other
words, there lies a distinction between an
agreement to sell, and sale. The latter creates an
interest in the land once accomplished as defined
under Section 54 of the T.P. Act. It was also
rightly held on facts to which we concur that since
the dues of the Land Development Bank were
repaid, the question of applicability of Section 48
did not arise. We, therefore, find no ground to
disagree with this factual finding.
18. So far as the plea relating to readiness and
willingness is concerned, it was again rightly held
by the High Court to which we concur that this
being a finding of fact, it could not be disturbed in
second appeal and was binding on the High Court.
It was more so when the first Appellate Court had
recorded its finding by appreciating the entire
8
evidence on record. We, therefore, find no ground to
disagree with this finding of the High Court.
19. So far as the plea relating to limitation is
concerned, it was rightly held by the High Court to
which we again concur that, firstly, it was neither
raised before the Trial Court and nor before the first
Appellate Court; and secondly, it being a mixed
question of law and fact, the same could not be
examined, for the first time, in second appeal by the
High Court. We agree with the finding of the High
Court calling for no interference.
20. Now, so far as the plea relating to applicability
of Section 31 of the Act to the agreement in question
is concerned, the appellant, in our view, cannot be
permitted to raise such plea, for the first time, in
this appeal.
21. It is for the reason that, firstly, this plea was
neither raised by the appellant before the Trial
Court and nor before the first Appellate Court and
lastly, nor before the High Court.
9
22. Secondly, in order to enable the appellant to
raise any challenge to any plea, the party concerned
has to first lay foundation in the pleadings of such
plea which, in this case, was not. It is more so
when a plea is a mixed question of law and fact.
23. This Court being the last Court of appeal does
not, therefore, consider it proper to allow the
appellant to raise such plea, for the first time, under
Article 136 of the Constitution in this appeal.
24. Learned counsel for the appellant, however,
contended that the appellant had raised this point
in the arguments before the High Court but the
same was not considered. We do not find it to be so.
When we read the impugned judgment, we find that
the High Court has specifically noted in Para 2 the
three pleas raised by the appellant, which did not
include this plea.
25. Learned counsel for the appellant next
contended that the agreements in question were not
meant for sale of the land but were in the nature of
10
security for the loan transaction entered between
the parties. We are afraid we can go into this
question in this appeal. It is again for the reason
that firstly, it is a question of fact and secondly, it
was not urged before the High Court.
26. In the light of foregoing discussion, we find no
merit in any of the submissions urged by the
learned counsel for the appellant dealt with supra.
27. As a result, the appeal is found to be devoid of
any merit and thus it fails and is accordingly
dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]

…...……..................................J.
[NAVIN SINHA]
New Delhi;
December 05, 2017
11

income tax - “When once the eligible business of an assessee is given the benefit of deduction under Section 80 IB on the assessee satisfying the conditions mentioned in sub-sec. (2) of Section 80 IB, can the assessee be denied the benefit of the said deduction on the ground that during the said 10 consecutive years, it ceases to be a small scale industry?” yes - we hold that the assessee is not entitled to benefit of exemption if it loses its eligibility as a small scale industrial undertaking in a particular assessment year even if in initial year eligibility was satisfied.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20854 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.4565 OF 2015)
DEPUTY COMMISSIONER OF INCOME-TAX,
CIRCLE 11 (1), BANGALORE …APPELLANT
VERSUS
M/S. ACE MULTI AXES SYSTEMS LTD. ...RESPONDENTS
WITH
CIVIL APPEAL NO. 20856 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.8331 OF 2016)
WITH
CIVIL APPEAL NO. 20857 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.3323 OF 2016)
WITH
CIVIL APPEAL NO. 20855 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.148 OF 2016)
J U D G M E N T
ADARSH KUMAR GOEL, J.
Civil Appeal No. 20854 of 2017
(@ Special Leave Petition(Civil) No.4565 of 2015)
1. Leave granted. This appeal has been preferred against the
judgment and order dated 28th July, 2014 of the High Court of
Karnataka at Bangalore in Income Tax Appeal No.477 of 2013. The
High Court framed the following question of law for consideration :
2
“When once the eligible business of an assessee is
given the benefit of deduction under Section 80 IB on
the assessee satisfying the conditions mentioned in
sub-sec. (2) of Section 80 IB, can the assessee be
denied the benefit of the said deduction on the
ground that during the said 10 consecutive years, it
ceases to be a small scale industry?”
2. The High Court answered the question in the negative and in
favour of the assessee. The revenue has questioned the said view.
3. The respondent assessee is engaged in manufacture and sale
of components/parts of CNC lathes and similar machines. Its
income was assessed for the assessment year 2005-2006 at
Rs.1,79,82,653/-. However, the Commissioner of Income Tax,
interfered with the assessment under Section 263 to the extent it
allowed deduction under Section 80 IB(3) of the Income Tax Act,
1961 (the Act) and directed fresh decision on the said issue vide
order dated 16th January, 2009. Thereafter, the Assessing
authority on 14th December, 2009 disallowed the claim of
Rs.75,81,910/- towards deduction under Section 80 (B(3). The
same was upheld by the Commissioner in appeal and the Income
Tax Appellate Tribunal in second appeal. However, the High Court
has reversed the said orders and upheld the claim.
4. The relevant Section is as follows :
3
“80-IB. Deduction in respect of profits and
gains from certain industrial undertakings
other than infrastructure development
undertakings - (1) Where the gross total income of
an assessee includes any profits and gains derived
from any business referred to in sub-sections (3) to
(11), (11A) and (11B) (such business being
hereinafter referred to as the eligible business),
there shall, in accordance with and subject to the
provisions of this section, be allowed, in computing
the total income of the assessee, a deduction from
such profits and gains of an amount equal to such
percentage and for such number of assessment
years as specified in this section.
(2) This section applies to any industrial undertaking
which fulfils all the following conditions, namely :—
(i) it is not formed by splitting up, or the
reconstruction, of a business already in
existence:
Provided that this condition shall not apply in
respect of an industrial undertaking which is
formed as a result of the re-establishment,
reconstruction or revival by the assessee of the
business of any such industrial undertaking as
is referred to in section 33B, in the
circumstances and within the period specified
in that section;
(ii) it is not formed by the transfer to a new
business of machinery or plant previously used
for any purpose;
(iii) it manufactures or produces any article or
thing, not being any article or thing specified in
the list in the Eleventh Schedule, or operates
one or more cold storage plant or plants, in
any part of India :
Provided that the condition in this clause
shall, in relation to a small scale industrial
undertaking or an industrial undertaking
referred to in sub-section (4) shall apply as if
the words "not being any article or thing
4
specified in the list in the Eleventh Schedule"
had been omitted.
Explanation 1.—For the purposes of clause (ii),
any machinery or plant which was used outside
India by any person other than the assessee
shall not be regarded as machinery or plant
previously used for any purpose, if the
following conditions are fulfilled, namely :—
(a) such machinery or plant was not, at any
time previous to the date of the installation by
the assessee, used in India;
(b) such machinery or plant is imported into
India from any country outside India; and
(c) no deduction on account of depreciation in
respect of such machinery or plant has been
allowed or is allowable under the provisions of
this Act in computing the total income of any
person for any period prior to the date of the
installation of the machinery or plant by the
assessee.
Explanation 2.—Where in the case of an
industrial undertaking, any machinery or plant
or any part thereof previously used for any
purpose is transferred to a new business and
the total value of the machinery or plant or
part so transferred does not exceed twenty per
cent of the total value of the machinery or
plant used in the business, then, for the
purposes of clause (ii) of this sub-section, the
condition specified therein shall be deemed to
have been complied with;
(iv) in a case where the industrial undertaking
manufactures or produces articles or things,
the undertaking employs ten or more workers
in a manufacturing process carried on with the
aid of power, or employs twenty or more
workers in a manufacturing process carried on
without the aid of power.
5
(3) The amount of deduction in the case of an
industrial undertaking shall be twenty-five per cent
(or thirty per cent where the assessee is a company),
of the profits and gains derived from such industrial
undertaking for a period of ten consecutive
assessment years (or twelve consecutive
assessment years where the assessee is a
co-operative society) beginning with the initial
assessment year subject to the fulfilment of the
following conditions, namely :—
(i) it begins to manufacture or produce,
articles or things or to operate such plant or
plants at any time during the period beginning
from the 1st day of April, 1991 and ending on
the 31st day of March, 1995 or such further
period as the Central Government may, by
notification in the Official Gazette, specify with
reference to any particular undertaking;
(ii) where it is an industrial undertaking being
a small scale industrial undertaking, it begins
to manufacture or produce articles or things or
to operate its cold storage plant [not specified
in sub-section (4) or sub-section (5)] at any
time during the period beginning on the 1st
day of April, 1995 and ending on the 31st day
of March, 2002.
(4) to (13) xxx xxx xxx
(14) For the purposes of this section,—
(a) "built-up area" means the inner
measurements of the residential unit at the
floor level, including the projections and
balconies, as increased by the thickness of the
walls but does not include the common areas
shared with other residential units;
(aa) "cold chain facility" means a chain of facilities
for storage or transportation of agricultural
produce under scientifically controlled
conditions including refrigeration and other
facilities necessary for the preservation of such
produce;
6
(ab) "convention centre" means a building of a
prescribed area comprising of convention halls
to be used for the purpose of holding
conferences and seminars, being of such size
and number and having such other facilities
and amenities, as may be prescribed;
(b) "hilly area" means any area located at a
height of one thousand metres or more above
the sea level;
(c) "initial assessment year"—
(i) in the case of an industrial undertaking or
cold storage plant or ship or hotel, means the
assessment year relevant to the previous year
in which the industrial undertaking begins to
manufacture or produce articles or things, or to
operate its cold storage plant or plants or the
cold chain facility or the ship is first brought
into use or the business of the hotel starts
functioning;
(ii) in the case of a company carrying on
scientific and industrial research and
development, means the assessment year
relevant to the previous year in which the
company is approved by the prescribed
authority for the purposes of sub-section (8);
(iii) in the case of an undertaking engaged in
the business of commercial production or
refining of mineral oil referred to in sub-section
(9), means the assessment year relevant to
the previous year in which the undertaking
commences the commercial production or
refining of mineral oil;
(iv) in the case of an undertaking engaged in
the business of processing, preservation and
packaging of fruits or vegetables or in the
integrated business of handling, storage and
transportation of foodgrains, means the
assessment year relevant to the previous year
in which the undertaking begins such business;
7
(v) in the case of a multiplex theatre, means
the assessment year relevant to the previous
year in which a cinema hall, being a part of the
said multiplex theatre, starts operating on a
commercial basis;
(vi) in the case of a convention centre, means
the assessment year relevant to the previous
year in which the convention centre starts
operating on a commercial basis;
(vii) in the case of an undertaking engaged in
operating and maintaining a hospital in a rural
area, means the assessment year relevant to
the previous year in which the undertaking
begins to provide medical services;
(d) "North-Eastern Region" means the region
comprising the States of Arunachal Pradesh,
Assam, Manipur, Meghalaya, Mizoram,
Nagaland, Sikkim and Tripura;
(da) "multiplex theatre" means a building of a
prescribed area, comprising of two or more
cinema theatres and commercial shops of such
size and number and having such other
facilities and amenities as may be prescribed;
(e) "place of pilgrimage" means a place where
any temple, mosque, gurdwara, church or
other place of public worship of renown
throughout any State or States is situated;
(f) "rural area" means any area other than—
(i) an area which is comprised within the
jurisdiction of a municipality (whether known
as a municipality, municipal corporation,
notified area committee, town area committee
or by any other name) or a cantonment board
and which has a population of not less than ten
thousand according to the preceding census of
which relevant figures have been published
before the first day of the previous year; or
8
(ii) an area within such distance not being
more than fifteen kilometres from the local
limits of any municipality or cantonment board
referred to in sub-clause (i), as the Central
Government may, having regard to the stage
of development of such area including the
extent of, and scope for, urbanisation of such
area and other relevant considerations specify
in this behalf by notification in the Official
Gazette;
(g) "small-scale industrial undertaking" means
an industrial undertaking which is, as on the
last day of the previous year, regarded as a
small-scale industrial undertaking under
section 11B of the Industries (Development
and Regulation) Act, 1951 (65 of 1951).”
5. Before we consider the issue of correct interpretation of the
above provision, it may be necessary to note the observations of
the statutory authorities and the High Court on the issue.
6. The assessment order dated 14th December, 2009, disallowing
the deduction is as follows :
“The same is not acceptable on the ground that the
value of plant and machinery has exceeded Rs.1
crores as per the depreciation schedule annexed to
the 3CD report which do not come under the purview
of the definition of small scale industry for the year
ending 04-05 (A.Y.05-06).
In view of the above, I am constrained to hold that
the assessee company is not eligible for claim of
80IB(3) deduction amounting to Rs.75,81,910/- and
hence same is disallowed.”
7. The Commissioner of Income Tax (Appeals) in order dated 15th
February, 2011 observed :
9
“I agree with the learned CIT who while passing the
order u/s 263 has pointed out that the industrial
undertaking, here initially SSI unit, has to fulfil all
conditions in each of the block years of its
entitlement or otherwise such claim has to be denied.
He rightly points out that Section 80 IB(3) only forms
the basis of entitlement and its scope. The first
condition is that it must be a SSI unit in the year of
claim and entitlement Section 80 IB (14)(g) defines
what is a SSI and an exact date has been prescribed
therein so that AO can examine whether on that date
it is an SSI or not. The date is the last day of the
relevant previous year in this case 31.03.2005 and
such date is exclusively for the purpose of this section
only. Admittedly the investment in plant and
machinery on 31.03.2005 was i.e., Rs.4,05,21,730/-
which was more than the prescribed limit of that year
i.e., 1 crore. Hence it no longer remains a SSI and
hence the disallowance has to be held justified.
xxx xxx xxx
17. Summary:
Section 80 IB is an incentive provision. It stipulates
deduction in respect of profits and gains from certain
industrial undertakings. Within this section a plethora
of industries and business types have been given the
benefit of such deduction if they fulfill the conditions
mentioned in the concerned sub section of Section
80IB of the Act. Some of such concerns/industries are
ship, hotel multiplex, theatres, housing projects etc.
Sub-Section (2) of Section 80IB provides such
conditions for industrial undertakings including cold
storage and cold chain facility and also Small Scale
Industrial undertakings (in short henceforth SSIU). All
the four conditions mentioned in Section 80IB (2)
must be fulfilled to make the industrial undertaking
eligible for the benefit of the claim u/s 80IB of the I.T.
Act. Condition No.1 is that the industrial undertaking
must not have been formed by splitting up or
reconstruction of a business already in existence with
an exception that in case of units specified u/s 33B of
the I.T. Act this condition will not apply. The second
condition is that such undertaking must not have
10
been formed by transfer of machinery or plant
previously used with the exception that the value of
such machinery and plant previously used must not
exceed 20% of the value of the total cost of the plant
and machinery of such industrial undertaking. The
third condition is that the industrial undertaking must
produce or manufacture any article or thing other
than any article or thing specified in the Eleventh
Schedule. Exception to this third condition is that an
SSIU can avail the 80IB benefit even if manufactures
or produces articles or things specified in Eleventh
Schedule. The fourth condition is that the industrial
undertaking running with the aid of power must not
have less than 10 employees and if it is run without
power, the number of employees must be more than
20 employees. Thus all the four conditions
narrated above must be fulfilled if the
industrial undertaking desires to avail benefit
u/s 80IB of the I.T. Act. For a SSIU there is also
an extra condition i.e., it must be an SSI unit as
per explanation (g) given in 80IB (14) of I.T. Act
which refers to Section 11B of the IDR Act 1951
which in turn prescribes a limit for investment
in plant and machinery to designate the
industrial undertaking as SSI unit. Thus out of
these five conditions, the first two conditions
may be called static or unchangeable. In other
words if in the initial year of manufacture or
production it is substantiated that it has
fulfilled these two conditions the A.O. cannot
on this ground in subsequent eligible years of
the block period deny the benefit u/s 80IB. The
rest three conditions are volatile and unstable.
The industrial undertaking must show in each
subsequent year of claim that these three
conditions have not been violated. Such claims
of the assessee has to face the analysis and
scrutiny of the A.O. Thus, since each A.Y. is
separate and independent, the revenue
authorities had every power to examine and
analyse the facts and figures as well as
relevant law points of each year to find out
whether all these three conditions are fulfilled
or not. It is also the ratio of the cited case of Natraj
Stationery 312 ITR 22 (Delhi) vide page 14 supra. It
has been stated in that case that the first two
11
conditions have already been satisfied and it is
assumed that the fourth condition has been fulfilled
in that year and hence the relief. The same is also
the ratio in the case of – M/s. Janak Dehydration
(P) Limited vs. Asst. CIT (2010) 134 TTJ Ahd.
D-Trib-1. The facts of that case was that the assessee
was allowed deduction u/s 80IB from 1993-94 to
2002-03 but in the A.Y. 2003-04 the claim was
disallowed on the ground that in the initial year the
industrial unit has been formed by reconstruction or
splitting up of the existing unit. The ITAT held that it
is not open to the A.O. to doubt the earlier
acceptance of the department in respect of
reconstruction and splitting up to deny the claim in
subsequent year because that violates the principles
of consistency. But it also laid down that –
“Under the I.T. Act each year is a
separate unit of assessment and
taxable income as well as tax
liability are to be determined
keeping in view of the facts
prevailing in that year and the law
as applicable in that year.”
In the light of the above legal matrix as elaborated in
Para 15 above it can be palpably seen that the
appellant has violated, the mandatory fifth condition.
It is not doubted that in the initial A.Y. the appellant
was an SSI unit, but in the A.Y. 2005-06 the
investment in plant and machinery has admittedly
exceeded the prescribed limit of Rs.1 Crore.
Therefore, it cannot be held as an SSIU. Thus the fifth
condition being violated openly and admittedly by the
appellant, the relief sought for has to be denied in the
A.Y. 2005-06.
18. In view of the above, addition/disallowance is
upheld. Appeal is dismissed.”
8. The ITAT in its order dated 24th May, 2013 observed :
12
“5.3.6. Taking into account all the facts and
circumstances of the issue as discussed in the
foregoing paragraphs and also, as rightly
highlighted by the AO, the value of plant and
machinery had exceeded Rs.1 crore during the
year under consideration which incidentally
deprive the assessee to call itself as a Small
Scale Industry, we are of the considered view
that the authorities below were justified in
denying the assessee’s claim for deduction u/s
80-IB(3) of the Act. It is ordered accordingly.”
9. Considering the question framed by it, the High Court held :
“5. In the entire provision, there is no indication
that these conditions had to be fulfilled by the
assessee all the 10 years. When once the benefit of
10 years, commencing from the initial year, is
granted, if the undertaking satisfy all these
conditions initially, the undertaking is entitled to the
benefit of 10 consecutive years. The argument that,
in the course of 10 years, if the growth of the
industry is fast and it acquires machinery and the
total value of the machinery exceeds Rs.1 crore, it
ceases to have the said benefit, do not follow from
any of the provisions. It is true that there is no
express provision indicating either way, what would
be the position if the small scale industry ceases to
be a small scale industry during the said period of 10
years. Because of that ambiguity, a need for
interpretation arises. If we keep in mind the object of
the Legislature providing for these incentives and
when a period of 10 years is prescribed, that is the
period, probably, which is required for any industry
to stabilize itself. During that period the industry not
only manufactures products, it generates
employment and it adds to the wealth of the country.
Merely because an industry stabilizes early,
makes profits, makes future investment in the
said business, and it goes out of the definition
of the small scale industry, the benefit under
Sec. 80IB cannot be denied. If such a literal
interpretation is placed on the said provision, it
13
would run counter to the very object of granting
incentives. It would kill the industry. Therefore,
keeping in mind the object with which these
provisions are enacted, keeping in mind the
industrial growth which is required to be achieved, if
two interpretations are possible, the courts have to
lean in favour of extending the benefit of deduction
to an assessee who has availed the opportunity
given to him under law and has grown in his
business. Therefore we are of the view, if a small
scale industry, in the course of 10 years, stabilizes
early, makes further investments in the business and
it results in it’s going outside the purview of the
definition of a small scale industry, that should not
come in the way of its claiming benefit under
Sec.80IB for 10 consecutive years, from the initial
assessment year. Therefore, the approach of the
authorities runs counter to the scheme and the
intent of the Legislature. Thereby they have denied
the legitimate benefit, an incentive granted to the
assessee. Both the said orders cannot be sustained.
Therefore the substantial question of law is
answered in favour of the assessee and against the
Revenue.” (emphasis in
quotations is ours)
10. Section 80 IB is in Chapter VI A of the Act which provides for
deductions to be allowed from total income which is to be
computed under the relevant provisions. The scheme is to provide
incentives for purposes mentioned in different provisions of the
said Chapter. Section 80 IB provides for deductions of specified
percentage from the profits and gains of the specified industrial
undertakings other than infrastructure development undertakings
(which are separately dealt with under Section 80 IA). The clause
relevant for purposes of this appeal is Clause 2 which makes the
14
deductions permissible in respect of industrial undertakings
fulfilling the conditions specified therein. The scheme applies to
small scale industrial undertakings as defined in Clause 14(g)
which in terms refers to Section 11 B of the Industries
(Development and Regulation) Act, 1951. The extent of deduction
permissible is mentioned in Clause 3 which is 25% (30% in the
case of a company) of the profits and gains derived from such
industrial undertakings for 10 consecutive assessment years
beginning with the initial assessment. The ‘initial assessment
year’ is defined in Clause 14 (c) as the year in which
manufacturing/production commences.
11. As already noted, the question for consideration is whether
deduction under Clause 3 for 10 consecutive assessment years
remains permissible irrespective of compliance of conditions
subject to which the said deduction is permitted in the relevant
assessment years. For purposes of deduction, the industrial
undertakings covered by Section 80 IB are of different categories.
Under the second proviso to Clause 2, disqualification applicable to
industrial undertaking, other than small scale industrial
undertakings, i.e., not being in 8th Schedule is not applicable. The
15
small scale industrial undertakings eligible are only those which
begin manufacture or produce, articles or things during the
beginning of 1st day of April, 1995 and ending on 31st day of
March, 2002 [Clause 3(ii)]. For other categories of industrial
undertakings, different periods are prescribed, e.g. under
sub-clause (i) of Clause (3).
12. The scheme of the statute does not in any manner indicate
that the incentive provided has to continue for 10 consecutive
years irrespective of continuation of eligibility conditions.
Applicability of incentive is directly related to the eligibility and not
de hors the same. If an industrial undertaking does not remain
small scale undertaking or if it does not earn profits, it cannot
claim the incentive. No doubt, certain qualifications are required
only in the initial assessment year, e.g. requirements of initial
constitution of the undertaking. Clause 2 limits eligibility only to
those undertakings as are not formed by splitting up of existing
business, transfer to a new business of machinery or plant
previously used. Certain other qualifications have to continue to
exist for claiming the incentive such as employment of particular
number of workers as per sub-clause 4(i) of Clause 2 in an
16
assessment year. For industrial undertakings other than small scale
industrial undertakings, not manufacturing or producing an article
or things specified in 8th Schedule is a requirement of continuing
nature.
13. On examination of the scheme of the provision, there is no
manner of doubt that incentive meant for small scale industrial
undertakings cannot be availed by industrial undertakings which
do not continue as small scale industrial undertakings during the
relevant period. Needless to say, each assessment year is a
different assessment year, except for block assessment
14. The observations in the impugned order are that the object of
legislature is to encourage industrial expansion which implies that
incentive should remain applicable even where on account of
industrial expansion small scale industrial undertakings ceases to
be small scale industrial undertakings. We are unable to
appreciate the logic for these observations. Incentive is given to a
particular category of industry for a specified purpose. An incentive
meant for small scale industrial undertaking cannot be availed by
an assessee which is not such an undertaking. It does not, in any
manner, mean that the object of permitting industrial expansion is
17
defeated, if benefit is not allowed to other undertakings. On this
logic, incentive must be given irrespective of any condition as the
incentive certainly helps further expansion by reducing the tax
burden. The concept of vertical equity is well known under which
all the assessees need not be uniformally taxed. Progressive
taxation is a well known element of tax policy. Higher slabs of tax
or higher tax burden on an assessee having higher income or
higher capacity cannot in any manner, be considered
unreasonable.
15. We may now refer to some of the decisions which have been
cited at the bar. It is submitted on behalf of the assessee that a
provision relating to incentive should be construed liberally to
advance the objective of the provision. Reliance has been placed
on Bajaj Tempo Ltd. versus CIT1
. Therein the assessee claimed
exemption meant for a new industrial undertaking which had not
been formed by transfer of earlier business in terms of Section 15C
of the Income Tax Act, 1922. After recording a finding of fact that
the assessee was a genuine new industrial undertaking, it was
observed that a provision of a taxing statute granting incentive for
promoting growth and development should be construed liberally.
1 (1992) 196 ITR 188 (SC) = (1992) 3 SCC 78
18
The judgment is distinguishable. Construing liberally does not
mean ignoring conditions for exemption. The main issue
considered in the said judgment was that though the undertaking
was a genuine ‘new industrial undertaking’ which was the
qualification for the exemption, a nominal part of the undertaking
was out of the existing undertaking and building of an existing
undertaking was taken on lease. The relevant observations are :
“9. Initial exercise, therefore, should be to find out if
the undertaking was new. Once this test is satisfied
then clause (i) should be applied reasonably and
liberally in keeping with spirit of Section 15-C(1) of
the Act. While doing so various situations may arise
for instance the formation may be without anything
to do with any earlier business. That is the
undertaking may be formed without splitting up or
reconstructing any existing business or without
transfer of any building material or plant of any
previous business. Such an undertaking undoubtedly
would be eligible to benefit without any difficulty. On
the other extreme may be an undertaking new in its
form but not in substance. It may be new in name
only. Such an undertaking would obviously not be
entitled to the benefit. In between the two there may
be various other situations. The difficulty arises in
such cases. For instance a new company may be
formed, as was in this case a fact which could not be
disputed, even by the Income Tax Officer. But tools
and implements worth Rs 3,500 were transferred to
it of previous firm. Technically speaking it was
transfer of material used in previous business. One
could say as was vehemently urged by the learned
counsel for the department that where the language
of statute was clear there was no scope for
interpretation. If the submission of the learned
counsel is accepted then once it is found that the
material used in the undertaking was of a previous
business there was an end of inquiry and the
19
assessee was precluded from claiming any benefit.
Words of a statute are undoubtedly the best guide.
But if their meaning gets clouded then courts are
required to clear the haze. Sub-section (2) advances
the objective of sub-section (1) by including in it
every undertaking except if it is covered by clause (i)
for which it is necessary that it should not be formed
by transfer of building or machinery. The restriction
or denial of benefit arises not by transfer of building
or material to the new company but that it should
not be formed by such transfer. This is the key to the
interpretation. The formation should not be by such
transfer. The emphasis is on formation not on use.
Therefore it is not transfer of building or material but
the one which can be held to have resulted in
formation of the undertaking. In Textile Machinery
Corporation Ltd. v. CIT [(1977) 2SCC 368] this Court
while interpreting Section 15-C observed : (SCC p.
375, para 18)
“The true test, is not whether the new
industrial undertaking connotes
expansion of the existing business of
the assessee but whether it is all the
same a new and identifiable
undertaking separate and distinct from
the existing business. No particular
decision in one case can lay down an
inexorable test to determine whether a
given case comes under Section 15-C
or not. In order that the new
undertaking can be said to be not
formed out of the already existing
business, there must be a new
emergence of a physically separate
industrial unit which may exist on its
own as a viable unit. An undertaking is
formed out of the existing business if
the physical identity with the old unit
is preserved.”
Even though this decision was concerned with the
clause dealing with reconstruction of existing
business but the expression ‘not formed’ was
construed to mean that the undertaking should not
20
be a continuation of the old but emergence of a new
unit. Therefore even if the undertaking is established
by transfer of building, plant or machinery but it is
not formed as a result of such transfer the assessee
could not be denied the benefit.”
16. The principle of law considered in Bajaj Tempo (supra) is
certainly a valid principle of interpretation where there is
ambiguity or absurdity or where conditions of eligibility are
substantially complied. In the present case, the scheme of the
statute is clear that the incentive is applicable to a small scale
industrial undertaking. The intention of legislature is in no manner
defeated by not allowing the said incentive if the assessee ceases
to be the class of industrial undertaking for which the incentive is
provided even if it was eligible in the initial year. Each assessment
year is a separate unit.
17. In Citizen Cooperative Society Limited versus Assistant
Commissioner of Income Tax, Circle-9(1), Hyderabad2
this
Court considered the incentive under Section 80-P meant for a
primary agricultural credit society or a primary cooperative
agricultural and rural development bank. The assessee was held
not to be entitled to the said incentive as business of the assessee
was held to be finance business to which the incentive was not
2 391 ITR 1 = (2017) 9 SCC 364
21
admissible even though the principle of liberal interpretation in
terms of Bajaj Tempo (supra) was applied.
18. In State of Haryana versus Bharti Teletech Ltd.3
,
eligibility of an assessee to get benefit of exemption from tax was
an issue. It was observed that while the exemption notification
should be liberally construed, the beneficiary must fall within the
ambit of the exemption and fulfill the conditions thereof. In case
such conditions are not fulfilled, the issue of application of the
notification does not arise. The principle of interpretation in the
judgment in Bajaj Tempo (supra) and other judgments was dealt
with as follows :
“22. We will be failing in our duty if we do not
address a submission, albeit the last straw, of Mr. Jain
that any provision relating to grant of exemption, be
it under a rule or notification, should be considered
liberally. In this regard, we may profitably refer to the
decision in Hansraj Gordhandas v. CCE and Customs
[AIR 1970 SC 755] wherein it has been held as
follows: (AIR p. 759, para 5)
“5. … It is well established that in a taxing
statute there is no room for any
intendment but regard must be had to the
clear meaning of the words. The entire
matter is governed wholly by the language
of the notification. If the tax-payer is
within the plain terms of the exemption it
cannot be denied its benefit by calling in
aid any supposed intention of the
exempting authority. If such intention can
3 (2014) 3 SCC 556
22
be gathered from the construction of the
words of the notification or by necessary
implication therefrom, the matter is
different.”
23. In CST v. Industrial Coal Enterprises [(1999) 2
SCC 605], after referring to CIT v. Straw Board Mfg.
Co. Ltd. [(1989 (Supp.) 2 SCC 529] and Bajaj Tempo
Ltd. v. CIT, the Court ruled that an exemption
notification, as is well known, should be construed
liberally once it is found that the entrepreneur fulfils
all the eligibility criteria. In reading an exemption
notification, no condition should be read into it when
there is none. If an entrepreneur is entitled to the
benefit thereof, the same should not be denied.
24. In this context, reference to T.N. Electricity Board
v. Status Spg. Mills Ltd.[(2008) 7 SCC 353] would be
fruitful. It has been held therein: (SCC p. 367, para
32)
“32. It may be true that the exemption
notification should receive a strict
construction as has been held by this
Court in Novopan India Ltd. v. CCE and
Customs[ 1994 (Supp) 3 SCC 606], but it
is also true that once it is found that the
industry is entitled to the benefit of
exemption notification, it would received
a broad construction. (See TISCO Ltd. v.
State of Jharkhand[(2005) 4 SCC 272]
and A.P. Steel Re-Rolling Mill Ltd. v. State
of Kerala[(2007) 2 SCC 725].) A
notification granting exemption can be
withdrawn in public interest. What would
be the public interest would, however,
depend upon the facts of each case.”
25. From the aforesaid authorities, it is clear as
crystal that a statutory rule or an exemption
notification which confers benefit on the assessee on
certain conditions should be liberally construed but
the beneficiary should fall within the ambit of the rule
or notification and further if there are conditions and
violation thereof are provided, then the concept of
23
liberal construction would not arise. Exemption being
an exception has to be respected regard being had to
its nature and purpose. There can be cases where
liberal interpretation or understanding would be
permissible, but in the present case, the rule position
being clear, the same does not arise.”
19. Same view was taken in Commissioner of Customs versus
M. Ambalal & Co.4
as follows :
“16. It is settled law that the notification has to be
read as a whole. If any of the conditions laid down in
the notification is not fulfilled, the party is not entitled
to the benefit of that notification. The rule regarding
exemptions is that exemptions should generally be
strictly interpreted but beneficial exemptions having
their purpose as encouragement or promotion of
certain activities should be liberally interpreted. This
composite rule is not stated in any particular
judgment in so many words. In fact, majority of
judgments emphasise that exemptions are to be
strictly interpreted while some of them insist that
exemptions in fiscal statutes are to be liberally
interpreted giving an apparent impression that they
are contradictory to each other. But this is only
apparent. A close scrutiny will reveal that there is no
real contradiction amongst the judgments at all. The
synthesis of the views is quite clearly that the general
rule is strict interpretation while special rule in the
case of beneficial and promotional exemption is
liberal interpretation. The two go very well with each
other because they relate to two different sets of
circumstances.”
20. In State of Jharkhand versus Ambay Cements5
, the
question was whether exemption for newly set up industrial units
was applicable to the assessee therein. The High Court having
4 (2011) 2 SCC 74
5 (2005) 1 SCC 368
24
allowed the benefit even though the assessee did not qualify for
the same, this Court reversed the view of the High Court and held
that the conditions for grant of exemption from tax are mandatory
and in absence thereof exemption could not be granted.
Distinguishing the judgments of this Court in Bajaj Tempo
(supra), it was observed :
“23. Mr Bharuka further submitted that in taxing
statutes, provision of concessional rate of tax should
be liberally construed and in respect of the above
submission, he cited the judgment of this Court in
CST v. Industrial Coal Enterprises [(1992) 3 SCC 78]
and in the case of Bajaj Tempo Ltd. v. CIT. We are
unable to countenance the above submission. In our
view, the provisions of exemption clause should be
strictly construed and if the condition under which the
exemption was granted stood changed on account of
any subsequent event the exemption would not
operate.
24. In our view, an exception or an exempting
provision in a taxing statute should be construed
strictly and it is not open to the court to ignore the
conditions prescribed in the industrial policy and the
exemption notifications.
25. In our view, the failure to comply with the
requirements renders the writ petition filed by the
respondent liable to be dismissed. While mandatory
rule must be strictly observed, substantial compliance
might suffice in the case of a directory rule.
26. Whenever the statute prescribes that a particular
act is to be done in a particular manner and also lays
down that failure to comply with the said requirement
leads to severe consequences, such requirement
would be mandatory. It is the cardinal rule of
interpretation that where a statute provides that a
25
particular thing should be done, it should be done in
the manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute
is penal in character, it must be strictly construed and
followed. Since the requirement, in the instant case,
of obtaining prior permission is mandatory, therefore,
non-compliance with the same must result in
cancelling the concession made in favour of the
grantee, the respondent herein.”
21. In view of the above judgments, we do not see any difference
in the situation where the assessee, is not initially eligible, or
where the assessee though initially eligible loses the qualification
of eligibililty in subsequent assessment years. In both such
situations, principle of interpretation remains the same.
22. Thus, while there is no conflict with the principle that
interpretation has to be given to advance the object of law, in the
present case, the assessee having not retained the character of
‘small scale industrial undertaking’, is not eligible to the incentive
meant for that category. Permitting incentive in such case will be
against the object of law.
23. For the above reasons, we hold that the assessee is not
entitled to benefit of exemption if it loses its eligibility as a small
scale industrial undertaking in a particular assessment year even if
in initial year eligibility was satisfied.
26
The appeal is accordingly disposed of in the above terms.
Civil Appeal No. 20856 of 2017
(@ Special Leave Petition(Civil) No.8331 of 2016)
Civil Appeal No. 20857 of 2017
(@ Special Leave Petition(Civil) No.3323 of 2016)
Civil Appeal No. 20855 of 2017
(@ Special Leave Petition(Civil) No.148 of 2016)
24. Leave granted. In view of the judgment in the main matter,
these appeals are disposed of in the same terms.
25. The assessing authority may pass an order of compliance by
applying the above principle to the facts of individual cases.
…………………………………..J.
[RANJAN GOGOI]
…………………………………..J.
[ADARSH KUMAR GOEL]
…………………………………..J.
[NAVIN SINHA]
NEW DELHI;
5
TH DECEMBER, 2017.

National Register of Indian Citizen = who is originally inhabitant of the State of Assam - apprehensions are wholly unfounded.= The exercise of upgradation of NRC is not intended to be one of identification and determination of who are originally inhabitants of the State of Assam.The sole test for inclusion in the NRC is citizenship under the Constitution of India and under the Citizenship Act including Section 6A thereof. Citizens who are originally inhabitants/residents of the State of Assam and those who are not are at par for inclusion in the NRC.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 1020 OF 2017
KAMALAKHYA DEY PURKAYASTHA
AND ORS. ...PETITIONER(S)
VERSUS
UNION OF INDIA
AND ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (CIVIL) NO. 1096 OF 2017
WRIT PETITION (CIVIL) NO. 1095 OF 2017
WRIT PETITION (CIVIL) NO. 1101 OF 2017
WRIT PETITION (CIVIL) NO. 1104 OF 2017
WRIT PETITION (CIVIL) NO. 1147 OF 2017
&
I.A.NO.101687 OF 2017 IN SLP(C)NO.13259 OF 2017
J U D G M E N T
RANJAN GOGOI,J.
1. Heard the learned counsels for the
parties.
2
2. The writ petitions and the
Interlocutory Application(s) under
consideration have been filed seeking
directions from the Court as to the manner
in which the expression “originally
inhabitants of the State of Assam”
appearing in Clause 3(3) of the Schedule
(Special Provisions as to manner of
Preparation of National Register of Indian
Citizen in State of Assam) to the
Citizenship (Registration of Citizens and
Issues of National Identity Cards) Rules,
2003, is to be understood and furthermore
for directions laying down the procedure by
which such persons are required to be
identified.
3. Relevant clauses of the Schedule
including Clause 3(3) reads as follows:
“2. Manner of preparation of draft
National Register of Indian Citizen in
State of Assam—
3
(1)(a) ……
(b) ……….
(c) …………
(2) The Local Registrar of
Citizen Registration shall receive
the filled up application forms,
at the same place where the
applications are issued, and issue
the receipt thereof to the
applicant.
(3) The Local Registrar of
Citizen Registration, after the
receipt of the application under
sub-paragraph (2) shall scrutinize
the applications and after its
verification, prepare a
consolidated list thereof which
shall contain the names of the
following persons, namely—
(a) person whose name
appear in any of the
electoral rolls upto the
midnight of the 24th day of
March, 1971 or in National
Register of Citizens, 1951;
(b) descendants of the
persons mentioned in clause
(a) above;
4
3. Scrutiny of applications—
(1) The scrutiny of
applications received under
sub-paragraph (3) of paragraph 2
shall be made by comparing the
information stated in the
application form with the official
records and the persons, of whom
the information is found in order,
shall be eligible for inclusion of
their names in the consolidated
list.
(2) The names of persons who
have been declared as illegal
migrants or foreigners by the
competent authority shall not be
included in the consolidated list:
Provided that the names of persons
who came in the State of Assam
after 1966 and before the 25th
March, 1971 and registered
themselves with the Foreigner
Registration Regional Officer and
who have not been declared as
illegal migrants or foreigners by
the competent authority shall be
eligible to be included in the
consolidated list.
(3) The names of persons who
are originally inhabitants of the State
of Assam and their children and
descendants, who are Citizens of
India, shall be included in the
consolidated list if the
citizenship of such persons is
ascertained beyond reasonable
doubt and to the satisfaction of
the registering authority;
(underlining is ours)
5
(4) The Local Registrar of
Citizens Registration may, in case
of any doubt in respect of
parental linkage or any particular
mentioned in the application
received under sub-paragraph (3)
of paragraph 2, refer the matter
to the District Magistrate for
investigation and his decision and
Local Registrar of Citizens
Registration shall also inform the
same to the individual or the
family.”
4. Clause 3(3) provides for
identification of persons entitled to be
included in the National Register of
Citizens (NRC) by a process different from
what is enumerated in Clause 3(2) and,
therefore, the said Clause i.e. 3(3)
constitutes an exception thereto. Clause
3(3) contemplates a less strict and
vigorous process for deciding claims for
inclusion in the NRC insofar as persons who
are originally inhabitants of the State of
Assam are concerned. Identification of
persons who are originally inhabitants of
6
the State of Assam as against those who are
not does not determine any entitlement for
inclusion in the NRC which is on the basis
of proof of citizenship alone and nothing
else. Neither does such identification
confer any special entitlement or benefit.
This has, infact, been clarified in several
of the reports submitted by the learned
Coordinator before this Court.
5. The prayer made in the writ
petitions and the I.As, as admitted in the
course of the hearing by the learned
counsels for the writ
petitioners/applicants, is founded on an
apprehension that by the process of
verification of the claims for inclusion in
the NRC based on the claim to be originally
inhabitants of the State of Assam a
superior class of citizens is being
created. The question who is originally
inhabitant of the State of Assam, according
7
to the applicants and the writ petitioners,
may also have impact on the entitlement of
such persons in the matter of opportunities
for education, employment etc. vis-a-vis
the second category of citizens i.e. who
are not originally inhabitants of Assam.
6. All such apprehensions are wholly
unfounded. The exercise of upgradation of
NRC is not intended to be one of
identification and determination of who are
originally inhabitants of the State of
Assam. The sole test for inclusion in the
NRC is citizenship under the Constitution
of India and under the Citizenship Act
including Section 6A thereof. Citizens who
are originally inhabitants/residents of the
State of Assam and those who are not are at
par for inclusion in the NRC.
7. In view of the above, we do not
find any reason to issue any direction or
8
clarification as to the meaning of the term
“originally inhabitants of the State of
Assam” as sought for in the present Writ
Petitions and the Interlocutory
Application(s) which are accordingly
disposed of in terms of our directions and
observations as above.
.…...................,J.
(RANJAN GOGOI)
.....................,J.
(ROHINTON FALI NARIMAN)
NEW DELHI
DECEMBER 5, 2017

Monopolies and Restrictive Trade Practices = unfair trade practice - (i) The Board will allot one flat to the appellant in Jodhpur in Board's Middle Income Group “B” Housing Scheme. (ii) The appellant will pay the price of the flat selected by him as per the approved Government's price prevalent and in force as on the date of this judgment. (iii) The Board will adjust a sum of Rs.19,600/- + interest @12% per annum to be calculated on Rs. 19,600/- from the date of its payment by the appellant to the Board till the date of execution of sale deed by the Board in appellant’s favour from the total price and after giving adjustment of the said amount, i.e.,(principal amount Rs.19,600/- and interest) the balance would be considered as final price payable by the appellant to the Board for purchase of flat. (iv) In other words, the appellant will pay a total price of the flat to the Board after deducting Rs.19,600/- + interest to be calculated @ 12 % p.a. on Rs.19,600/- 7 from the date the said payment was made by the appellant to the Board till the date of execution of sale deed of the flat. (v) The Board will accordingly work out the price of the flat, as directed above, and inform the appellant. (vi) If the appellant deposits the entire sale consideration, as directed above, within the time fixed by the Board in the notice sent to the appellant, the Board will execute the sale deed in favour of the appellant and also in favour of appellant's first blood relation jointly along with the appellant, in case, the appellant expresses his wish to allow any of his blood relation to join with him as co-owner in execution of the sale deed. It is because it was stated at the bar that the appellant is now quite aged. This liberty is, therefore, granted to the appellant. (vii) If the appellant fails to pay the price within the time fixed by the Board then a sum of Rs.19,600/- deposited by the 8 appellant with the Board shall stand forfeited. (viii) Let all the formalities, as directed above, be completed within 6 months from the date of receipt of this judgment by the parties under intimation to both as an outer limit to give quietus to this litigation with no claim of any kind surviving against both the parties for future. 13) In view of foregoing directions, we do not consider it necessary to examine the legal issues arising in the case.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2832 OF 2007
Daulat Singh Rathore ...Appellant(s)
VERSUS
Rajasthan Housing Board ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment
and order dated 20.02.2006 passed by the
Monopolies and Restrictive Trade Practices
Commission, New Delhi (hereinafter referred to as
“MRTP Commission”) in UTPE No. 207 of 1998
whereby the MRTP Commission disposed of the
complaint and discharged the notice of enquiry
2
holding that the allegation of unfair trade practice
against the respondent are not proved.
2) The facts of the case lie in a narrow compass.
They, however, need mention infra to appreciate the
short issue involved in the appeal.
3) The Respondent herein is a State Housing
Board (hereinafter referred to as "the Board"). The
Board is constituted for the State of Rajasthan
under the Rajasthan Housing Board Act, 1970
(hereinafter referred to as “the Act").
4) Pursuant to the Schemes introduced by the
Board for sale of different types of Houses/flats in
the city of Jodhpur, the Board invited applications
from public at large in the year 1982 for sale of
different categories of the houses/flats.
5) The appellant made an application on
27.12.1982 (Annexure-P-1) to the Board for
allotment of one flat to him at Jodhpur under a
Scheme called, Middle Income Group "B" category.
3
On 30.05.1983, the appellant deposited a sum of
Rs.4,600/- as registration amount and then
deposited a sum of Rs.15,000/- on 18.09.1993
being first instalment.
6) Thereafter, there arose disputes between the
appellant and the Board for sale of the flat which, in
the first instance, led to filing of the petition being
Writ Petition No.4707/1993 by the appellant in the
High Court of Rajasthan at Jodhpur. By order
dated 04.05.1995, the High Court dismissed the
writ petition as having rendered infructuous.
7) The appellant then took recourse to two
remedies for ventilating his grievance against the
Board. He filed a suit being Civil Suit No. 23/2001
in the Court of ADJ(I) at Jodhpur on 02.07.2001
challenging therein the actions of the Board and
simultaneously filed a complaint being UTPE No.
207/1998 before the MRTP Commission, New
Delhi against the Board.
4
8) So far as the suit is concerned, it is still
pending and so far as the complaint is concerned, it
was dismissed by the MRTP Commission by
impugned order dated 20.02.2006 giving rise to
filing of this appeal by way of special leave by the
appellant in this Court. This Court granted leave
on 17.05.2007.
9) On 11.08.2016, this Court recorded in the
proceeding that the appellant has given a proposal
to the Board for reconsideration of his case for
allotment of the flat. This Court observed that the
Board should look into the appellant's proposal with
objectivity and call the appellant personally to
resolve the dispute out of the Court. On 19.10.2016,
learned counsel for the respondent made a
statement that the Board has decided to allot one
flat to the appellant and the details of the same
would be placed on record within 2 weeks. On
23.03.2017, this Court wanted to find out the prices
5
of the flats between 2005 to 2010. The Board has
accordingly placed on record the details of the
prices of the flats.
10) It is in the light of these background facts, the
question arises as to what order needs to be passed
for the disposal of the appeal.
11) Having heard the learned counsel for the
parties and on perusing the record of the case and
further keeping in view the nature of the
controversy, stand taken by the both parties and
lastly, the interim orders passed by this Court on
various dates mentioned above, we are of the
considered opinion that this appeal can be disposed
of finally by passing the following directions.
12) In our opinion, the directions given
hereinbelow would balance the equities between the
parties and also safeguard their interest in relation
to the subject matter of the appeal. The following
are the directions:
6
(i) The Board will allot one flat to the
appellant in Jodhpur in Board's Middle
Income Group “B” Housing Scheme.
(ii) The appellant will pay the price of
the flat selected by him as per the
approved Government's price prevalent
and in force as on the date of this
judgment.
(iii) The Board will adjust a sum of
Rs.19,600/- + interest @12% per annum
to be calculated on Rs. 19,600/- from
the date of its payment by the appellant
to the Board till the date of execution of
sale deed by the Board in appellant’s
favour from the total price and after
giving adjustment of the said amount,
i.e.,(principal amount Rs.19,600/- and
interest) the balance would be considered
as final price payable by the appellant to
the Board for purchase of flat.
(iv) In other words, the appellant will
pay a total price of the flat to the Board
after deducting Rs.19,600/- + interest to
be calculated @ 12 % p.a. on Rs.19,600/-
7
from the date the said payment was made
by the appellant to the Board till the date
of execution of sale deed of the flat.
(v) The Board will accordingly work out
the price of the flat, as directed above,
and inform the appellant.
(vi) If the appellant deposits the entire
sale consideration, as directed above,
within the time fixed by the Board in the
notice sent to the appellant, the Board
will execute the sale deed in favour of the
appellant and also in favour of appellant's
first blood relation jointly along with the
appellant, in case, the appellant
expresses his wish to allow any of his
blood relation to join with him as
co-owner in execution of the sale deed. It
is because it was stated at the bar that
the appellant is now quite aged. This
liberty is, therefore, granted to the
appellant.
(vii) If the appellant fails to pay the price
within the time fixed by the Board then a
sum of Rs.19,600/- deposited by the
8
appellant with the Board shall stand
forfeited.
(viii) Let all the formalities, as directed
above, be completed within 6 months
from the date of receipt of this judgment
by the parties under intimation to both as
an outer limit to give quietus to this
litigation with no claim of any kind
surviving against both the parties for
future.
13) In view of foregoing directions, we do not
consider it necessary to examine the legal issues
arising in the case.
14) The appeal stands disposed of finally.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[NAVIN SINHA]
New Delhi;
December 04, 2017

defamation - vicarious liability = FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE: “20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.” - The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the abovementioned activities is carried on by persons employed by the owner. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2059 OF 2017
(Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)
Mohammed Abdulla Khan … Appellant
Versus
Prakash K. … Respondent
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. The sole respondent is admittedly the owner of a Kannada
Daily Newspaper by name “Jaya Kirana” published from
Mangalore, Karnataka. On 16.12.2013, the said newspaper
carried a news item containing certain allegations against the
appellant herein. According to the appellant, the allegations are
highly defamatory in nature.
2
3. The appellant lodged a report with the Panambur Police,
Mangalore, Dakshina Kannada District on 17.12.2013 against
the respondent and another person who was editor of the
abovementioned newspaper. Police did not take any action.
Thereafter, the appellant filed a private complaint against the
respondent and the editor of the abovementioned newspaper
before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which
eventually came to be numbered as CC No.1252 of 2014. The
learned Magistrate took cognizance of the matter on 15.04.2014
for the offences punishable under Section 500, 501 and 502 of
the Indian Penal Code, 1860.
4. Aggrieved by the order dated 15.04.2014, the respondent
carried the matter in Revision Petition No.219 of 2014 before the
Sessions Judge, Dakshina Kannada, Mangalore. By the order
dated 06.11.2015, the respondent’s revision was dismissed.
Respondent further carried the matter in Criminal Petition
No.8679 of 2015 to the Karnataka High Court invoking Section
482 of the Code of Criminal Procedure, 1973. By an order dated
23.11.2016, the said petition was allowed and the proceedings in
CC No.1252 of 2014, insofar as they pertained to the respondent,
were quashed.
3
5. Both in his revision as well as the petition under Section
482 Cr.P.C., the respondent urged various grounds which
according to him render the order dated 15.04.2014 illegal. The
details of those various grounds are not necessary for our
purpose.
6. The judgment under appeal is very cryptic. The first three
paragraphs of the judgment under appeal (running into a short
one and a half page) purport to take note of only one submission
of the respondent.
“Para 2. The learned Counsel for the petitioner would point out
that there can be no vicarious liability insofar as the criminal
law is concerned. The complainant’s allegation of the
defamatory material published in the newspaper against him,
even if it is established, can only be sustained against the editor
of the newspaper and not the owner of the newspaper. The
petitioner admittedly was the owner. The newspaper carries a
legend that the newspaper is edited and published on behalf of
the petitioner and there is no dispute in this regard.”
7. It appears from the judgment under appeal that the
appellant herein argued that in view of the law laid down in K.M.
Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s
objection could not be sustained. High Court rejected the
submission of the appellant.
“Para 3. Though the learned Counsel for the respondent would
seek to contend that the question is no longer res integra and is
covered by a judgment of the Supreme Court in the case of K.M.
Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however
noticed that the said decision was in respect of a managing
4
editor, resident editor or a chief editor of respective newspaper
publications, who were parties therein.”
The learned Judge recorded that the judgment in K M Mathew’s
case could be distinguished and, therefore, opined that the
respondent’s petition is required to be allowed.
“Para 3. … Therefore, at the outset, it can be said that the said
case could be distinguished from the case on hand, as, the
petitioner is not claiming as an editor, who had any role in the
publication of the newspaper. Therefore, it is a fit case where
the petition should be allowed.”
It is unfortunate that the High Court did not choose to give any
reason whatsoever for quashing the complaint except a grand
declaration that “it would lead to a miscarriage of justice”.
“Accordingly, though the criminal proceedings can go on against
the editor of the newspaper, the petitioner cannot be proceeded
with, as it would lead to a miscarriage of justice.”
Hence, the appeal.
8. Before us the appellant appeared in person. Inspite of the
service of notice, the respondent neither chose to appear in
person nor through a counsel. In view of the fact that a
substantial question of law is involved in the matter, we thought
it appropriate to request Shri M.N. Rao, learned Senior Advocate
to assist the Court in this matter.
5
9. Heard Shri M.N. Rao, learned Senior Advocate for the
appellant.
10. Section 499 IPC defines the offence of defamation. It
contains 10 exceptions and 4 explanations. The relevant portion
reads;
“Section 499. Defamation.— Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to defame that
person.”
11. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the person
against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
6
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and
publishing the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the
imputation.
The essence of publication in the context of Section 499 is
the communication of defamatory imputation to persons other
than the persons against whom the imputation is made.1
12. Committing any act which constitutes defamation under
Section 499 IPC is punishable offence under Section 500 IPC.
Printing or engraving any defamatory material is altogether a
different offence under Section 501 IPC. Offering for sale or
selling any such printed or engraved defamatory material is yet
another distinct offence under Section 502 IPC.
1
Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)
7
13. If the content of any news item carried in a newspaper is
defamatory as defined under Section 499 IPC, the mere printing
of such material “knowing or having good reason to believe that
such matter is defamatory” itself constitutes a distinct offence
under Section 501 IPC. The sale or offering for sale of such
printed “substance containing defamatory matter” “knowing that
it contains such matter” is a distinct offence under Section 502
IPC.
14. Whether an accused (such as the respondent) against whom
a complaint is registered under various Sections of the IPC
(Sections 500, 501 & 502 IPC) could be convicted for any of those
offences depends upon the evidence regarding the existence of
the facts relevant to constitute those offences.
15. In the context of the facts of the present case, first of all, it
must be established that the matter printed and offered for sale
is defamatory within the meaning of the expression under Section
499 IPC. If so proved, the next step would be to examine the
question whether the accused committed the acts which
constitute the offence of which he is charged with the requisite
intention or knowledge etc. to make his acts culpable.
8
16. Answer to the question depends upon the facts. If the
respondent is the person who either made or published the
defamatory imputation, he would be liable for punishment under
Section 500 IPC. If he is the person who “printed” the matter
within the meaning of the expression under Section 501 IPC.
Similarly to constitute an offence under Section 502 IPC, it must
be established that the respondent is not only the owner of the
newspaper but also sold or offered the newspaper for sale.
17. We must make it clear that for the acts of printing or selling
or offering to sell need not only be the physical acts but include
the legal right to sell i.e. to transfer the title in the goods - the
newspaper. Those activities if carried on by people, who are
employed either directly or indirectly by the owner of the
newspaper, perhaps render all of them i.e., the owner, the
printer, or the person selling or offering for sale liable for the
offences under Sections 501 or 502 IPC, (as the case may be) if
the other elements indicated in those Sections are satisfied.
18. Whether the content of the appellant’s complaint constitutes
an offence punishable under any one or all or some of the
abovementioned sections was not examined by the High Court for
quashing the complaint against the respondent. So we need not
9
trouble ourselves to deal with that question. We presume for the
purpose of this appeal that the content of the appellant’s
complaint does disclose the facts necessary to establish the
commission of one or all of the offences mentioned above.
Whether there is sufficient evidence to establish the guilt of the
respondent for any one of the abovementioned three offences is a
matter that can be examined only after recording evidence at the
time of trial. That can never be a subject matter of a proceeding
under Section 482 Cr.P.C.
19. From the judgment under appeal, it appears that before the
High Court it was argued on behalf of the respondent that there
is no vicarious liability in criminal law and therefore the owner of
a newspaper cannot be prosecuted for the offences of defamation.
“2. The learned counsel for the petitioner would point out that
there can be no vicarious liability insofar as the criminal law is
concerned. The complainant’s allegation of the defamatory
material published in the newspaper against him, even if it is
established, can only be sustained against the editor of the
newspaper and not the owner of the newspaper. The petitioner
admittedly was the owner. The newspaper carries a legend that
the newspaper is edited and published on behalf of the petitioner
and there is no dispute in this regard.”
20. It appears from para 3 of the judgment that the appellant
herein submitted in response to the above extracted contention of
the respondent that the question is no longer res integra and is
10
covered by a judgment of this Court in K.M. Mathew v. K.A.
Abraham & Others.
2
The High Court rejected the submission holding:
“…….it is however noticed that the said decision was in respect
of a managing editor, resident editor or a chief editor of
respective newspaper publications, who were parties therein.
Therefore, at the outset, it can be said that the said case could
be distinguished from the case on hand, as, the petitioner is
not claiming as an editor, who had any role in the publication
of the newspaper. Therefore, it is a fit case where the petition
should be allowed.”
The High Court concluded that prosecution of the respondent
would lead to miscarriage of justice. A conclusion without any
discussion and without disclosing any principle which forms the
basis of the conclusion.
FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:
21. K.M. Mathew was the “Chief Editor” of a daily called
Malayalam Manorama. When he was sought to be prosecuted for
the offence of defamation, he approached the High Court under
Section 482 Cr.P.C. praying that the prosecution be quashed on
the ground that Section 7 of the Press and Registration of Books
Act, 1867 only permits the prosecution of the Editor but not the
Chief Editor. The High Court rejected the submission.
2
(2002) 6 SCC 670
11
22. Even before this Court, the same submission was made.
3
This Court rejected the submission holding:
“16. The contention of these appellants is not tenable. There
is no statutory immunity for the Chief Editor against any
prosecution for the alleged publication of any matter in the
newspaper over which these persons exercise control.”
It was further held that though the presumption under Section 7
of the Press and Registration of Books Act, 1867 is not applicable
to somebody whose name is printed in the newspaper as the
Chief Editor, the complainant can still allege and prove that
persons other than the Editor, if they are responsible for the
publication of the defamatory material.
“20. The provisions contained in the Act clearly go to show that
there could be a presumption against the Editor whose name is
printed in the newspaper to the effect that he is the Editor of
such publication and that he is responsible for selecting the
matter for publication. Though, a similar presumption cannot
be drawn against the Chief Editor, Resident Editor or Managing
Editor, nevertheless, the complainant can still allege and prove
that they had knowledge and they were responsible for the
publication of the defamatory news item. Even the presumption
under Section 7 is a rebuttable presumption and the same could
be proved otherwise. That by itself indicates that somebody
other than editor can also be held responsible for selecting the
matter for publication in a newspaper.”
23. K.M. Mathew’s case has nothing to do with the question of
vicarious liability. The argument in K.M. Mathew’s case was
that in view of Section 7 of the Press and Registration of Books
3
The contention of the appellants in these cases is that they had not been shown as Editors in these publications
and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor”
and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in
that newspaper. [Para 15 of K.M. Mathew’s case]
12
Act, 1867 only the Editor of a newspaper could be prosecuted for
defamation. Such a submission was rejected holding that Section
7 does not create any immunity in favour of persons other than
the Editor of a newspaper. It only creates a rebuttable
presumption that the person whose name is shown as the editor
of the newspaper is responsible for the choice and publication of
the material in the newspaper. K.M. Mathew’s case made it
clear that if a complaint contains allegations (which if proved
would constitute defamation), person other than the one who is
declared to be the editor of the newspapers can be prosecuted if
they are alleged to be responsible for the publication of such
defamatory material.
The High Court, in our opinion, without examining the ratio
of K.M. Mathew’s case chose to conclude that the decision is
distinguishable. The judgment of the High Court is absolutely
unstructured leaving much to be desired.
24. Vicarious liability for a crime is altogether a different matter.
In England, at one point of time, the owner of a newspaper was
held to be vicariously liable for an offence of defamation (libel).
The history of law in this regard is succinctly stated by Lord
13
Cockburn in The Queen v. Holbrook.
4 Though there appears to
be some modification of the law subsequent to the enactment of
Lord Campbell’s Act i.e. the Libel Act 1843 (6&7 Vict C 96).
Lord Campbell’s Act did not apply to India. The Press and
Registration of Books Act (Act XXV of 1867) is made applicable to
British India and continues to be in force by virtue of the
declaration under Article 372 of the Constitution of India. There
are material differences between the scheme and tenor of both
the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad
692, it was held:
“… But we cannot hold that the provisions of that Statute (Ed.
Lord Campbell’s Act) are applicable to this country, and we must
determine whether the accused is or is not guilty of defamation
with reference to the provisions of the Indian Penal Code. We
consider that it would be a sufficient answer to the charge in this
country if the accused showed that he entrusted in good faith the
temporary management of the newspaper to a competent person
during his absence, and that the libel was published without his
authority, knowledge or consent. As the Judge has, however,
misapprehended the effect of Act XXV of 1867, we shall set aside
the order of acquittal made by him and direct him to restore the
appeal to his file, to consider the evidence produced by the
accused and then to dispose of the appeal with reference to the
foregoing observations.”
and reiterated in Emperor v. Bodi Narayana Rao and G.
Harisarvothama Rao, (1909) ILR 32 Mad 338:
“Lord Campbell’s Act, of course, is not in force in India, and the
Criminal Law of England is not necessarily the same as the
Criminal Law of India as contained in the Indian Penal Code …”
4
L.R. 3 QBD 60
14
25. The extent of the applicability of the principle of vicarious
liability in criminal law particularly in the context of the offences
relating to defamation are neither discussed by the High Court in
the judgment under appeal nor argued before us because the
respondent neither appeared in person nor through any
advocate. Therefore, we desist from examining the question in
detail. But we are of the opinion that the question requires a
serious examination in an appropriate case because the owner of
a newspaper employs people to print, publish and sell the
newspaper to make a financial gain out of the said activity. Each
of the abovementioned activities is carried on by persons
employed by the owner.
26. Where defamatory matter is printed (in a newspaper or a
book etc.) and sold or offered for sale, whether the owner thereof
can be heard to say that he cannot be made vicariously liable for
the defamatory material carried by his newspaper etc. requires a
critical examination.
27. Each case requires a careful scrutiny of the various
questions indicated above. Neither prosecutions nor the power
15
under Section 482 CrPC can be either conducted or exercised
casually as was done in the case on hand.
28. The judgment under appeal cannot be sustained for the
reasons indicated above. The same is, therefore, set-aside and
the appeal is allowed. The trial court will now proceed with the
case in accordance with law.
….....................................J.
(J. CHELAMESWAR)
….....................................J.
(S. ABDUL NAZEER)
New Delhi
December 4, 2017