Narsingh Charan Das vs Emperor

Das, J.—The petitioner Narsingh Charan Das has been found guilty of contravening an order passed under Rule 75A, Defence of India Rules, and he has been sentenced under Sub-rule (7) of that rule to rigorous imprisonment for two months and a fine of Rs. 500, or in default to rigorous imprisonment for a period of five months. The petitioner appealed to the learned Sessions Judge which appeal was dismissed. Hence, the present application in revision.

The case against the petitioner was the following. The petitioner and his father resided in village Pritipur. His father died on 7th June 1943. In 1942-43 there was scarcity of food in the locality, and the District Magistrate had a list of stockists of paddy compiled within the sub-division of Jajpur. The list was prepared in December 1942. It was reported then that Chandramani Das, father of the present petitioner, had 1200 maunds of paddy in stock. By an order dated 16th May 1943,'' passed under Rule 75A,, Defence of India Rules, the District Magistrate requisitioned the aforesaid 1200 maunds of paddy, and directed Chandramani Das to make over the paddy to the Sub-divisional Magistrate of Jajpur, or his nominee. Chandramani Das, however, died shortly after, i.e., on 7th June 1948, and on 24th June 1943, the present petitioner was similarly served with an order under Rule 75A, Defence of India Rules. One Bashiruddin Khan, was sent by the Sub-divisional Magistrate of Jajpur to-receive delivery of 1200 maunds of paddy from the petitioner. On 29th June 1943, Bashiruddin Khan came to the house of the petitioner with some bullock carts. It is stated that the petitioner gave only 30 1/2 maunds of paddy on that occasion, and refused to deliver the remainder of the paddy. On this, the petitioner was put on trial for a contravention of an order made under Rule 75A, Defence of India Rules.

Both the Courts below have accepted the prosecution case that the petitioner had contravened an order under Rule 75A, Defence of India Rules, and was, therefore, liable to be punished under Sub-rule (7) of the said rule.

On behalf of the petitioner, two points-have been urged before us. It is firstly contended by the learned advocate for the petitioner that the petitioner did not have 1200 maunds of paddy at the time the requisition order was passed. Both Courts have carefully examined the evidence on this point, and they have come to the finding that the petitioner had more than 1200 maunds of paddy at that time. I see no reason to differ from their finding on this point. This contention raised on behalf of the petitioner, must, therefore, fail.

The petitioner is, however, entitled to-succeed on the second point, urged on his behalf. It appears that the lands from which the yield of the paddy was received are recorded in the record-of-rights as belonging: to a family deity Sri Radhakant Thakur of which the petitioner''s father and thereafter the petitioner were the sebait. The learned advocate for the petitioner relies on the proviso to Rule 75A(1), Defence of India Rules, which states that no property used for the-purpose of religious worship shall be requisitioned under the rule. The question is whether the paddy in question is property used for the purpose of religious worship. The appellate Court has given no very clear finding on this point. In one part of the judgment, the appellate Court has found that this is an instance of a private endowment. In another part of the judgment, the appellate Court finds that the dedication is a nominal dedication and the beneficial owner, ship has always remained with the father of the petitioner, and after his demise, with the petitioner. The trial Court has found that the petitioner holds the lands as sebait of the deity. The trial Court proceeded on the footing that the entire produce of the land was not used for religious worship, and, on that basis, convicted the petitioner.

There is, I think, no doubt that the lands from which the paddy has been received are owned by the deity, and the petitioner is only a trustee. In view of the entry in the record, of-rights which must be presumed to be correct unless the contrary is shown, it cannot be said that this is a fictitious or nominal dedication. The learned Advocate-General has contended before us that this may be a case, not of complete dedication, but of partial dedication, where a certain property is subject to the charge of rajbhog, etc., of a deity. There is, however, no clear evidence in the record making out a case of partial dedication as against the entry in the record-of-rights which makes out a case of complete dedication. Alternatively, it has been argued by the learned Advocate-General that even if this be a case of complete dedication, the proviso to Rule 75A(1) will apply only if it is shown that the property in question is actually used for the purpose of religious worship It is contended by him that all the 1200 maunds of paddy were not used for the, purpose of religious worship. There is some evidence in the record to show that the petitioner utilised part of the paddy for the maintenance of the family, for meeting the expenses of the illness of his father, and part of the paddy was sold to other people. The difficulty, however, is that there is no definite evidence as to what quantity of paddy was required for rajbhog, etc., of the deity which certainly would come within the expression "used for the purpose of religious worship." Even accepting the contention of the learned Advocate-General regarding the interpretation of the proviso to Rule 75A(1), namely, that it excludes only such property as is actually used for religious worship, it was, I think, for the prosecution to prove what quantity of paddy was required for religious worship, and what was not required for that purpose. I must state, however, that, in my opinion, the expression ''used for the purpose of religious worship'' must also include ancillary purposes, such as the maintenance of the family of the sebait selling part of the paddy for acquiring other articles necessary for the deity, etc., in the case of dedicated property. I am unable to accept the argument that it was for the accused to prove what part of the paddy was required for religious worship and what part was not so required. The case of the accused at the trial was that the entire produce belonged to the deity, and was required for religious worship. Reference was made on behalf of the Crown to Ex. 4, the list prepared by the Chakla Kanungo. This list shows that 1200 maunds of paddy represented the stock at the end of the last harvesting season. The use of the produce of the land for the deity must be a day-to-day use, and some stock must be kept for future use. Even if the trustee mismanages trust property or diverts it to other purposes, the property does not lose its character of trust property. In the absence of any clear evidence that the 1200 maunds of paddy or any part of it, the whole of which undoubtedly belonged to the deity, were not required for religious worship, I think the proviso to Rule 75A(1) protects the petitioner. Such property could not be requisitioned under Rule 75A, Defence of India Rules.

The learned advocate for the petitioner also referred to the charge, and contended that the charge was defective. He further said that the District Magistrate had not merely requisitioned the property, but had passed an order of acquisition at the same time. His contention is that in view of the order of acquisition, the property vested in the Crown and the petitioner could not be convicted of contravening an order of requisition. In my opinion, this contention is not sound. By the order of requisition, the petitioner was directed to deliver 1200 maunds of paddy. The expression "requisition" has been defined in Rule 2(11) and it includes an order requiring the property to be placed at the disposal of the requisitioning authority. This is the particular order which the petitioner is stated to have contravened. If the proviso to Rule 75A(1) does not apply then the petitioner would be guilty. For the reasons I have given above, I am of the view that the proviso to Rule 75A(1) applies in the present case.

The result, therefore, is that the application is allowed, and the Conviction and sentence passed against the petitioner are set aside. The petitioner should be forthwith released if in jail. If he is on bail, the bail bond will be discharged. The fine, if paid, should be refunded to the petitioner.

Manohar Lall, J.

I agree.