JUDGMENT

1. The circumstances giving to this appeal are as follows:-

<NAME> respondent was at the material time posted as Superintendent of police, Guedaspur. A government jeep was supplied to him for official use. It was being maintained at Government expense. The tyres of this jeep became worn out. <NAME>, therefore, on the 7th June, 1966 wrote a letter to the controller of stores, Punjab, chandigarh, that inter alia, some tyres and tubes for government jeep and other transport under his charge were urgently required by him. The controller was requested to intimate the amount involved so that sanction of the competent authority to purchase those articles might be obtained. He followed this by a reminder, dated 23-6-1966, requesting the controller to make necessary arrangements for the supply of types and tubes at an early date. The controller of stores, in reply sent the letter, dated 24-6-1966, requesting the respondent to send his demand in the new prescribed from the controller of printing and stationary, Punjab. He added that that further action would be taken on hearing on hearing from him (respondent).

2. On the 20th July, 1966 <NAME> proceeded in the <ORG> jeep no. PNP-15 registered in the name of Superintendent of police, Gurdaspur, on official duty, to Pathankot. The jeep was driven by Constable <NAME> 43. It was raining at about 6.45 P. M. when the jeep was on the road near village Paniar, it skidded and overturned, as a result on which <NAME> received injuries. His right clavical bone was fractured . He remained in plaster for 6 weeks suffering intense pain. Mr. <NAME>, therefore made an application to <ORG>, Punjab chandiaarh, claiming rs. 5.000/- as compensation. It was alleged that the accident occurred due to the worn out tyres of the government vehicle, which were not replaced by the appellant-State, despite repeated requests, in time. At the time of the accident it was raining and the road was wet; consequently, the vehicle skidded and overturned.

3. The application was opposed by the state of Punjab through its secretary in the home department. In its written statement, the state denied its liability to pay any compensation, It was added that the officer had taken out the jeep on the road against the instructions of the Inspector-General of police, and that the superintendent of police, Gurdaspur, being himself the registered owner of the vehicle, could not claim compensation against himself.

4. The <ORG> framed these issues:-

1. Was the accident due to any negligence on the part of the driver of the vehicle or due to any defect in the vehicle involved in the accident?

2. What is the quantum of compensation due if any and and from whom?

3. Is not the claimant entitled to any compensation?

4. Is the government not liable to pay any compensation to the claimant?

5. after recording the evidence produced by the parties, the <ORG> found:-

"The accident no doubt took place because the tyres were worn out and had become unserviceable and the driver was not to blame as it was raining that day and the tyres slipped, but the driver was negligent in the performance of his duties as he did take the defective vehicle on the road and did not inform his officer about its unserviceable that day. The accident was, therefore, both due to the negligence of the driver as well as due to the defect of the tyres. The respondents have also admitted that requisition had been made to the controller of Stores by the applicant much before the accident for the supply of new tyres. Had they been supplied prior to the accident, it would not have occurred."

6. The two-pronged issue No. 1 was thus decided entirely in favour of the claimant. The remaining issues were also decided against the state. In the result Rs. 4,000/- were awarded as compensation under section 110-B of the Motor Vehicles Act, 1939, to the claimant against the appellant -State, with costs. It was further directed that the amount be paid within a month of the date of the award, failing which it will carry interest at 6% per annum. Hence this appeal by the state.

7. Mr. <NAME>, the learned counsel for the appellant state, has canvassed these points in the course of his arguments:-

1. The claimant as Superintendent of police was the registered owner of the vehicle, and at the material time, it was being driven by his own subordinate, Constable-driver. It was a rainy day the claimant knew or should have, by the exercise of ordinary diligence, known that the tyres of the vehicle were worn out and unserviceable, and it was dangerous to take it out on a rainy day on the road. This act of the claimant, <NAME>, and his constable-driver in taking out the jeep, which was not in a roadworthy condition, on that rainy day, amounted to an offence under section 121 of the Motor Vehicles Act, read with Rules 5.1 and 5.3 of the Motor Vehicles Rules. The claimant, therefore could not claim compensation for his own wrong or negligence.

2. the state was not liable, because no negligence either on the part of the controller in not supplying the new tyres, or the driver in driving the vehicle, was established.

3. There were several transport vehicle under the control of the superintendent of police, Gurdaspur. The claimant could avoid travelling on that rainy day in that unsafe vehicle, by selecting some other vehicle, or adopting any other mode of conveyance. The accident was, therefore, self-invited and the direct result of the negligence on the part of the claimant.

8. Mr. <NAME>, the learned Counsel for the claimant-respondent contends occurred as a result of the negligence of the appellant-<ORG> in not replacing the worn out tyres of the government jeep in time, despite requisitions made by the claimant: secondly, even if there was no such negligence, the liability of the <ORG> to compensate its servant for an injury sustained by him in the performance of his duty was absolute. It was not dependent on proof of any negligence either on the part of the Controller in not supplying the new tyres in time, or on the part of the drives of the vehicle in driving it. The claim ant as well as the driver both were servants of the <ORG>. The claimant was required to go on official tours in this jeep. While it was the duty of the constable-driver to drive it. A jeep with worn out tyres when driven on the road on a rainy day, is an intrinsically dangerous vehicle.

It was only in answer to the call of duty, which was paramount, that the claimant-respondent tool the risk of taking the unsafe vehicle on the road, and thereby met an accident and got injured. It was the duty of the master to keep the vehicle in a roadworthy condition, in which the servant was required to travel in the performance of his duties. It is maintained that the principle of res ipsa loquitur will be attracted. It is also said that section 110-B of the Motor Vehicles Act does not say that compensation can be awarded only when negligence on the part of the driver of the vehicle or its owner is established. I n support of this contention, Mr. <NAME> has referred to <CITATION> roadways, Ambala 1962-64 Pun LR 448=(AIR 1962 Punj 540): <ORG> and sons, Ltd., (1921) 2 KB 674: <ORG>, (1955) 1 All ER 6: and <ORG>, (1944) 1 All ER 465.

9. Before entering on the merits of the case, it will be worthwhile to elucidate the law on the point. It is true that there is nothing either in Ss. 110, 110- A, 110-B or 110- C of the Motor Vehicles Act , which says that compensation can be awarded by <ORG> only when negligence on the part of the driver of the vehicle concerned is established. These provisions, however, do not lay down any criterion for awarding compensation. They merely substitute the Motor Accidents claims tribunal for the Civil courts, for adjudicating claims to compensation in respect of accidents, involving death of or bodily injury to persons, arising our of the use of motor vehicles. They do not deal with the question as to who is to be held liable and in what circumstances, if any injury results from an accident. For fixing liability, in the absence of any specific statutory provision, we have to go back to the law of torts, according to which, generally speaking negligence in causing the accident is essential to hold the negligent person liable.

As observed by I. D. dua, J. in shri ram Pertap's case, 1962-64 Pun LR 448=(AIR 1962 Punj 540) the cardinal principle of liability on tort, when death or bodily injury has been caused to a person, is negligence or failure to take the requisite amount of care required by law. Similarly, in <CITATION> . AIR 1963 Punj 214, the accident in which the claimant received injuries while travelling in a bus, run by the state, was not proved to be due to any rash or negligent act of the driver. It was held that the claimant was not entitled to claim any compensation from the state for the injuries received by him.

10. It must be remembered that 'absolute liability' - which means liability without any fault or negligence on the part of the respondent, is exception under the common law, the general rule being that a person is liable only for the injury or harm directly flowing from his intention or negligence and not for any harm resulting from an unavoidable accident. The rule of absolute liability has grown in modern times. In Rylands V. Fletcher. (1865) 3 H & c 774 (sic) (1868- 3 HL 330 reversing (1865) 3 H & C 774), it was laid down that a person who brings dangerous things on his land and a harm results due to their escape, is liable. An extension of this rule casts vicarious liability on employers towards their employees. Employing servants or workmen in industry of business under the present conditions in this machine age is attended with risk of injury due to the negligence or mischief of the employees, which their employer cannot avoid with any amount of care. Statutory provisions, such as Workmen's Compensation Act , have been made to put the employer in the position of an insurer against harm done to the employees or its workmen within the scope of the employment. This principle of insurance against harm is in consonance with the socialistic pattern of society envisaged in our constitution.

11. In applying the doctrine of absolute liability, the <ORG> have to perform a delicate task. They have to give a new look to the old principles in the light of the present-day circumstances. They have to adopt the old principles to the modern world. If the old principles are to live and not become flint fossils of time, they must be constantly renovated, molded, and attuned to the changing social conditions. The courts play a limited role in this process by placing, what is called a dynamic interpretation on principles which carry behind them the sanction of tradition and precedent. They cannot, however, in the absence of any statutory provision, sanctioning that course, cut themselves completely adrift from their past moorings, and arrogate to themselves the functions of the <ORG>. Introducing entirely new principles, radically differing from a conflicting with the fundamental principles of Common law that have evolved through the centuries. Leaving aside the cases governed by special statutory provisions, such as Workmen's compensation Act, in cases of the kind before me, negligence on the part of the master or his agent must be proved before he can be fastened with the liability to compensate his servant, sustaining an injury in the course of the service.

12. The above being the law on the point, I pass on to consider whether in the present case, the accident resulting in injury to the claimant was due to negligence - actual or presumed - on the part of the employer - <ORG> or its servant, the driver of the vehicle concerned.

13. It was first on the 7th June 1966, that the claimant wrote to the controller of <ORG> that some tyres and tubes for <ORG> jeep and other transport under his charge were urgently required by him. This letter was more or less of an exploratory nature, inasmuch as the controller was requested to intimate the amount involved so that sanction of the competent authority to purchase those articles might be obtained. To this letter, the controller of stores sent a reply, dated 24-6-1966, asking the claimant -respondent to send his demand in the prescribed indent form available from the controller of printing and stationary, Punjab. There is nothing on the record to show that the claimant-respondent had sent his demand in the prescribed form thereafter. In the letter, dated 7-6-1966, Exhibit D. B., the claimant-respondent did not even say that the tyres of the vehicles had become unserviceable or worn our. The only thing mentioned therein is, that certain number if tyres and tubes were urgently required.

On the other hand, the controller of stores in his letter, Exhibit D. D., dated 24-6-1966, clearly intimated the claimant-respondent that further action in the matter could be taken only on respect of his demand on the prescribed indent forms No. "UF 88". It is true that the knowledge of the employer or the controller about this unserviceable or dangerous condition of the motor vehicle concerned is not a sine qua non for fixing him with the liability. It is, however, an important piece of evidence showing that were was no negligence on his part. Thus, it was not established that there was any negligence on the part of the appellant or its servant, the controller of stores, in not replacing the worn out tyres of the vehicle in time. Indeed, there was negligence on the part of the claimant in not making the demand well in time in the prescribed form. <ORG>, also, has not recorded any clear finding that there was negligence on the part of the state in replacing the worn out tyres, though it has said that the accident occurred due to the defect in the tyres.

14. Having seen that no negligence on the part of the employer-state has been proved, I pass on to consider, whether any negligence on the part of the driver held been established. The <ORG> has held that the driver was not to blame for the accident, which occurred due to the rain and the worn out and unserviceable condition of the tyres. The <ORG> has however, held that the driver was negligent as he did take the defective vehicle on the road and did not inform his officer about its unserviceable that day.

15. I am unable to appreciate this reasoning. It was the claimant's own case that the tyres of the vehicle had become worn out and unserviceable and they required urgent replacement. The knowledge of the claimant about the worn out condition of the tyres can be inferred from the circumstances that he wrote to the controller as far back as the 7th June 1966, that the tyres and tubes of the <ORG> jeep and other transport vehicles were urgently needed by him. He followed up this letter by a reminder, dated 23-6-1966. Thereafter, he received the reply of the controller that the requisition should be sent in the prescribed form. The accident occurred only about 4 weeks after the receipt of this letter. It is therefore, preposterous to suggest that Mr. <NAME> did not know about the worn our and unserviceable condition of the tyres.

He further knew that it was a rainy day. By ordinary diligence, therefore, he ought to have known that it was dangerous to take out the vehicle with unserviceable tyres on a rainy day. He did not require to be told by the Constable-driver about the condition of the tyres and the consequent roadworthy condition of the jeep on that rainy day. This act of the driver in driving that dangerous and unsafe vehicle on that rainy day, with its unserviceable tyres, and also act of <NAME> in allowing his subordinate driver to drive the vehicle on that day, might amount to the commission of an offence by the claimant as well as the driver under section 121 of the Motor Vehicles Act. Section 121 of the Act, reads as follows:-

"121. Using vehicle in unsafe condition. Any person who drives or cause or allows to be driven in any public place a motor vehicle or trailer while the vehicle or trailer has any defect, which such person knows of or could have discovered by the exercise of ordinary care and which is calculated to render the driving of the vehicle a source of danger to persons and vehicles using such place, shall be punishable with fine which may extend to two hundred and fifty rupees, or if as a result of such defeat an accident is caused causing bodily injury or damage to property, with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, with both."

16. Thus, the claimant and the driver both committed a wrongful act which is interdicted Act. The claimant, therefore cannot be compensated for a harm flowing from his own wrongful act or negligence.

17. The facts of the cases referred to by Mr. <NAME> were materially different from those of the instant case. The sheet-anchor of Mr. <NAME>, is the case, (1921) 2 KB 674. The plaintiff, Mr. <NAME>, a commercial traveler, was employed by the defendants, who were wholesale grocers. His duties were to travel round the district, show samples, take orders and deliver goods, and for that purpose he was supplied by the defendants with a motor-car, the starting gear of which was defective. He complained of this on several occasions to the defendants, who admitted that it was defective, but failed to remedy the defect. While the plaintiff was upon one of his journeys the car stopped, and in trying to restart it, he was severely injured. In an action brought by the plaintiff to recover damages in respect of personal injury resulting from the negligence of the defendants, it was held that the plaintiff notwithstanding his knowledge of the defect in the starting gear, had never undertaken or consented to take upon himself the risks arising from continuing to use the car, that he had sustained the injury owing to the personal negligence of the defendants, and that, not having been guilty of contributory negligence, he was entitled to recover.

18. It is important to note that Mr. <NAME> had repeatedly complained to his employers about the defect in the starting gear of the car. But the defect was not removed. The last time he complained about the defect to his employers, he was told: "Well we do not want you to be laid up, Use the car this week, as no other car is available. I will then have it seen to when you get back and you can go your next round by rail". It was in compliance with this direction of the employer that Mr. <NAME> started on his journey in the car, with the starting gear still defective.

19. In the instant case, it was neither alleged not proved by the claimant that he was peremptorily required by his employer or any superior officer to use the jeep with its defective tyres on that rainy day and thus run the risk of being injured. The claimant has not alleged, much less proved, (1) that the official work for which he had to travel on that day was so urgent and paramount that he could not, as a devoted and faithful servant of the state, avoid, and (2) that in the circumstances, he had no choice but to use this very defective jeep. It is apparent from the letter written by the claimant to the controller that there were several <ORG> transport vehicles under his control.

He has not alleged that all the other vehicles were unserviceable and in a more unroadworthy condition than the jeep concerned. Indeed, it was never the claimant's case that the exigencies of the official mission to be performed by him were so urgent and imminent that he had no choice but to travel in this defective jeep, except at the cost of committing dereliction of the official duty and the consequent incurrence of displeasure of the master. There was no proof that the master had done some act either by issuing peremptory direction to the servant to use this defective vehicle on that day and thereby expose him to danger, or had in any manner put the servant in that dangerous situation which he could not, by the exercise of ordinary diligence or discretion, avoid.

20. In (1921) 2 KB 674, it has no-where been laid down that the master's Liability is absolute and is not dependent on his personal negligence towards the servant. Mr. Justice <NAME>, who decided this xase, agreed that in order to cast liability on the master it was not necessary to prove that the master knew of the danger and that the servant was ignorant of the danger. In this opinion, both these branches of the proposition as enunciated in <NAME>'s case, (1884) 13 QBD 259, were erroneous. The learned Judge further observed:-

"I do not think it was ever essential not is it now essential to show that the master has actual knowledge of the danger or defect. The action against the master by a servant for negligence was based., as it purported to be based, on negligence and not on knowledge. It may well be that negligence could not in certain cases be shown without proof of knowledge. It may also be that once knowledge was shown the inference of negligence would be drawn. But proof of knowledge was only a useful method of proving negligence. Negligence could exist and can exist without actual knowledge by the master of the danger or defect. Indeed the absence of knowledge may itself be the basis of the charge of negligence.

The relationship between master and servant normally places upon the master the duty of care towards his servant...........

Now what does the duty of care involve? The answer is supplied by the well-known words of <NAME> in <ORG>, (1856) 11 Ex 781, 784, where he defines negligence as "the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Subject to the observation in <NAME>, (1893) 1 QB 491, the words of <NAME>, are still a useful guiding rule.

It follows therefore that a master may be liable for a danger or defect (causing hurt to his servant) not only where he knew but where he ought to have known of it. The negligence may be either (a) where he knows and negligently fails ro remedy, or (b) where he ought to have known but negligently fails in acquiring knowledge and therefore negligently fails to remove the danger or defect."

21. Thus, from what has been quoted above, it is quite clear that negligence on the part of the master is still the basis of an action for compensation in cases of this kind. In the case before me, the master was not apprised of the fact that the tyres of all the vehicles, including the jeep in question had become unserviceable. Secondly, it was not the master who put the servant in that situation. It was the claimant's own negligence that exposed him to that danger. The claimant's negligence consists first in not placing the indent in time in the prescribed form, and further allowing the jeep to be taken out in that road unworthy condition on a rainy day. Thus, the rule in <NAME>'s case, 1921-2 KB 674 does not advance the proposition expounded Mr. <NAME>.

The general rule is that the plaintiff must establish some negligence or a breach of duty by the defendant towards him and its causal connection with his injury. I do not agree that the case is covered by the principle or res ipsa loquitur. This rule has been very succinctly stated in the leading English case, Scott V. London and <ORG> (1865) 3 H & c 596. There the plaintiff, a customs officer, went inti the defendant's docks on business and in passing from one door way to another, six bags of sugar which were hung by a chain, fell on him. It was held that on these facts negligence of the defendant's servant could be inferred. The rule applicable to such cases was enunciated as follows:-

"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen it those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of care."

22. In case before, me the vehicle concerned was not under the 'management' of the appellant-state or its servant, the driver, It was registered in the name of the superintendent of Police Gurdsapur, and was under his control . that is to say, it was under the, management of the claimant himself, and the accident would not have happened if the claimant, who had the management and control, used proper care either to get the tyres replaced in time or to avoid using this dangerously unsafe vehicle on that rainy day. The accident occurred for want of care on the part of the claimant himself. The rule of res ipsa loquitur , (which for the sake of convenience maybe called the rule of presumptive negligence on part of the defendant), has therefore, no application to the facts of the <ORG> case.

23. It is not necessary for me to over-burden this judgment by discussing all the cases cited by Mr. <NAME>. It would suffice to say that their facts were entirely different.

24. For all the reasons aforesaid, I have no hesitation in holding that the claimant was not entitled to any compensation. In the result, I would allow this appeal, and dismiss the claimant's application, leaving the parties to bear their own costs throughout.

25. SSG/D.V.C.

26. Appeal allowed.


CASE NO.: Appeal (civil) 5837 of 2006 PETITIONER: <NAME> and <NAME> RESPONDENT: Smt. <NAME> DATE OF JUDGMENT: 15/12/2006 BENCH: <NAME> & <NAME> JUDGMENT:

<NAME>, J.

Leave granted.

This appeal has been filed against the impugned judgment of <ORG> dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.MM. No. 1420 of 2004.

Heard learned counsel for the parties and perused the record.

The facts of the case are that respondent Smt. <NAME> was married to <NAME>, son of the appellants, on 14.4.2000.

After the marriage respondent <NAME> started living with her husband <NAME> in the house of the appellant no.2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant no.2 and not to her son <NAME>.

<NAME> filed a divorce petition against his wife <NAME>, and it is alleged that as a counter blast to the divorce petition Smt. <NAME> filed an F.I.R. under Sections 406 / 498A / 506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days.

It is admitted that Smt. <NAME> had shifted to her parent's residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. <NAME>, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. <NAME>. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office.

It is stated by the appellants that their son <NAME>, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started.

The learned trial Judge decided both the applications for temporary injunction filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. <NAME>, respondent herein.

Against the aforesaid order the appellants filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. <NAME> was not residing in the second floor of the premises in question. He also held that her husband <NAME> was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. <NAME> had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application.

Aggrieved, Smt. <NAME> filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals.

The learned Single Judge of <ORG> in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. <NAME>. He further held that even if her husband <NAME> had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. <NAME>. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of <ORG> held that Smt. <NAME> was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home.

With respect, we are unable to agree with the view taken by <ORG>.

As held by this Court in <CITATION> .,  4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India.

In the same decision it was observed "it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife."

In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the <ORG>. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.

There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother- in-law.

Here, the house in question belongs to the mother-in-law of Smt. <NAME> and it does not belong to her husband <NAME>. Hence, Smt. <NAME> cannot claim any right to live in the said house.

Appellant No. 2, the mother-in-law of Smt. <NAME> has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.

Learned counsel for the respondent then relied upon the Protection of Women from Domestic Violence Act , 2005. He stated that in view of the said Act respondent Smt. <NAME> cannot be dispossessed from the second floor of the property in question.

It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. <NAME> was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. <NAME> cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.

Apart from the above, we are of the opinion that the house in question cannot be said to be a `shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act , 2005 (hereinafter referred to as the 'Act').

Section 2(s) states:

"`shared household` means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household".

Learned counsel for the respondent <NAME> has relied upon Sections 17 and 19(1) of the aforesaid Act, which state:

"17. (1)Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

19. (1) While disposing of an application under sub-section (1) of section 12 , the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman".

Learned counsel for the respondent <NAME> stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

We cannot agree with this submission.

If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

It is well settled that any interpretation which leads to absurdity should not be accepted.

Learned counsel for the respondent <NAME> has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.

As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to <NAME> nor was it taken on rent by him nor is it a joint family property of which the husband <NAME> is a member. It is the exclusive property of appellant No. 2, mother of <NAME>. Hence it cannot be called a `shared household'.

No doubt, the definition of `shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.

In view of the above, the appeal is allowed. The impugned judgment of <ORG> is set aside and the order of Senior Civil Judge dismissing the injunction application of Smt. <NAME> is upheld. No costs.

Contempt Petition (C) No. 38/2006 In view of the judgment given above, the contempt petition stands dismissed.


ORDER Per <NAME> - This appeal by the assessee for assessment year 1985-86 is directed against the order dated 16-9-1992 passed under section 263 of the Income-tax Act, 1961 by <ORG>, Patiala.

2. Brief facts of the case are these : The assessee is an individual who had income for two months from 1-4-1984 to 31-5-1984 as proprietor of <ORG> dealing in manufacture and sale of poultry feeds. The assessee also started a proprietary business in the name of <ORG>, Jagraon, which ran for two months for February and March 1985. The accounting period of the assessee ended on 31-3-1985. There was an income-tax search at the premises of the assessee on 14-10-1986 when certain books of accounts and documents were taken into possession by the <ORG>. The Assessing Officer made an assessment on 27-7-1990 under section 143(3) of the Act. Though the order is not very exhaustive, it is clear from the order that the incriminating material seized by the income-tax authorities was looked into by the Assessing Officer before framing the assessment. In fact, the Assessing Officer had issued three enquiry letters dated 6-2-1987, 10-2-1987 and 29-1-1988, copies of which are placed at pages 9 to 14 of the <ORG> compilation.

3. The <ORG>, however examined the record of the assessee and noticed that the document seized during the income-tax search had not been considered by the Assessing Officer. He also noticed that some of the investments had not been looked into and on some, enquiries had not been made. The ld. Commissioner accordingly issued a show-cause notice dated 4-2-1992 listing as many as nine items which were not considered by the Assessing Officer at the time of original assessment. The Assessee furnished a detailed reply dated 15-9-1992 which is placed at pages 4 to 8 of the assessees compilation.

4. The <NAME>. Commissioner, after enumerating the nine items mentioned the show-cause notice in the body of the order passed under section 263 of the Act, took cognizance of the reply submitted by the assessee but he<NAME> that it was neither proper nor possible for him to verify the explanation furnished by the assessees learned counsel. Since, according to him, the Assessing Officer while passing the original assessment order had failed to consider the incriminating evidence in some seized papers and also did not look into certain investments, he he<NAME> that the assessment order dated 27-7-1990 was erroneous insofar as it was prejudicial to the interests of the revenue. He accordingly set aside the assessment order in question and directed the Assessing Officer to make a de novo assessment considering all the seized papers not considered earlier and also other important aspects of the case as mentioned in the impugned order. It is against this order that the assessee has come up in appeal before us.

5. <NAME>, Advocate, the ld. counsel for the assessee, very ably presented the case of the assessee. It was submitted by him that though the assessment order passed by the Assessing Officer may not be exhaustive and may be cryptic, that would not mean that the Assessing Officer had not made the necessary enquiries before completing the assessment. The ld. counsel, in fact, drew our attention to the various notices issued by the Assessing Officer before completing the assessment to which a reference had been made above. It was also submitted that the order under section 263 was a quasi-judicial order and it was necessary for assuming jurisdiction that there should be a proper and valid reason for doing so and the conclusion of the ld. Commissioner should also be based on facts. It was submitted that in the instant case, the ld. Commissioner had not gone into the explanation furnished by the assessee nor had he come to a definite conclusion that the order passed by the <ORG> was erroneous and prejudicial to the interests of the revenue. It was vehemently argued that the entire approach of the ld. Commissioner was faulty and on that basis, no order under section 263 could have been passed.

6. The ld. counsel with the help of a chart filed before us explained as to how item Nos. (i) to (vi) in the impugned order had been gone into by the Assessing Officer as would be clear from the various query letters issued by him before completing the assessment. As regards item No. (vii), it was submitted that the assessee in his detailed reply before the Commissioner had pointed out that <ORG> was incorporated on 5-5-1984 and that no income was earned up to 29-9-1984 when the assessee resigned from directorship. The assessee had explained that shares worth Rs. 10,000 of this company had been purchased after earned the same in the books of accounts since no income had been earned, nothing was to be shown in the return. As regards item No. (viii), it was submitted that business in the style of <ORG> was being run by <NAME> w/o Dr. <NAME>, sister-in-law of the assessee, as a proprietary concern. It was pointed out that in the reply submitted, it had been explained that the proprietary concern was proposed to be converted into a partnership concern for which purpose a partnership deed dated 17-10-1984 was also executed but this remained a paper transaction only and no activity was done by the partnership concern. It was also pointed out that neither any investment was made nor did the firm actually come into existence. It was also submitted that <NAME> was assessed in her proprietary capacity for the said business for assessment year 1985-86.

7. As regard item No. (ix), it was submitted that all the incriminating documents had been gone into by the ITO and that the search took place as a result of the machination of a disgruntled and dismissed employee of the assessee, <NAME>. The ld. counsel for the assessee, therefore, vehemently argued that there was absolutely no justification for assuming jurisdiction under section 263 by the ld. CIT nor for passing the order setting aside the assessment to be made afresh.

8. The ld. counsel relied on the Patna High court decision in <CITATION>  142 ITR 778 for the proposition that the Commissioner has to point out as to how order sought to be cancelled is prejudicial to the interest of the revenue. Moreover, his satisfaction has to be not subjective but objective. Reliance was also placed on the <ORG> decision in the <CITATION> .  170 ITR 28 for the proposition that the power of revision by the Commissioner under section 263 of the Act is quasi-judicial in character and he must give reasons in support of his conclusion that the assessment order is erroneous insofar as it is prejudicial to the interests of the revenue. If he does not give reasons, the order would stand vitiated. The ld. counsel also relied on the Punjab and Haryana High Court decision in <CITATION>  112 ITR 445 for the proposition that in passing an order of revision under section 263 of the Act, it is necessary for the Commissioner to state in what manner he considered that the order of the Assessing Officer was erroneous and prejudicial to the interests of the revenue and that the basis was for such a conclusion. Relying on the Punjab and Haryana High Court decision in <CITATION>  178 ITR 446, it was submitted that the Commissioner had come to a firm decision that the order of the Assessing Office was erroneous and was prejudicial to the interests of the revenue. The ld. counsel also relied on <ORG> decision in <CITATION>  171 ITR 698 at 701 for the proposition that the orders of the <ORG> may be brief and cryptic, but that by itself is not sufficient to brand the assessment orders as erroneous and prejudicial to the interests of the revenue. Writing an order in detail may be legal requirement, but the order not fulfilling this requirement, cannot be said to be erroneous and prejudicial to the interests of the revenue. Relying on the Rajasthan High Court decision in <CITATION>  167 ITR 129, it was submitted that the error envisaged by section 263 was not on which depended on possibility or guesswork, but it should be actually an either of fact or of law. The learned counsel for the assessee, therefore, forcefully submitted that all the necessary enquiries had been made by the <ORG> and the ld. Commissioner had failed to point out any error in the assessment order. It was, therefore, pleaded that the impugned order may be vacated.

9. The <ORG> Representative submitted that in the show-cause notice, 9 reasons were given by the ld. Commissioner for invoking his jurisdiction under section 263 . According to the <ORG> Representative, these very reasons were incorporated in the impugned order. It was submitted that these were valid reasons which could justify the intervention by the learned Commissioner. It was submitted that the Assessing Officer had failed to consider the entire evidence and hence the setting aside of assessment order became a necessity. The <ORG>al Representative strongly superheated the impugned order.

10. We have carefully considered the submission of both the sides. We find considerable merit in the arguments of <NAME> which have been put forth in a very clear-cut manner. We find that the assessment order framed by the Assessing Officer was passed under section 143(3) after making all the necessary enquiries. The income-tax search and taken place on 14-10-1986. The Assessing Officer issued three query letters to which a reference has been made above. The assessment was completed on 27-7-1990 which was almost four years after the seizure of documents and records by the income-tax authorities. All these clearly show that the <ORG> had made the necessary enquiries before completing the assessment. The <ORG> counsel for the assessee has demonstrated with reference to a chart that items at Sl. Nos. (i) to (vi) mentioned in the impugned order were covered by one other query letter issued by the Assessing Officer. As regards items at Sl Nos. (vii) to (ix), it was submitted that a proper and exhaustive reply had been filed before the CIT which was, however, not considered by that authority. Various High Courts have he<ORG> that the power by the Commissioner under section 263 is quasi-judicial in character. The Commissioner, therefore, has not to record his subjective satisfaction but to a conclusion in an objective manner. The <ORG> Commissioner has also to come to a firm conclusion that the order passed by the Assessing Officer was erroneous and prejudicial to the interests of revenue. The learned Commissioner cannot sit in judgment over the discretion exercised by the Assessing Officer. He can legally interfere with the assessment order only if he finds that the order is both erroneous and prejudicial to the interests of the revenue. In the instant case, what we find is that the <ORG> Commissioner has neither looked into the submissions made on behalf of the assessee nor came to a firm conclusion that the assessment order was erroneous and prejudicial to the interests of the revenue. He has also not demonstrated as to how the incriminating evidence seized by the revenue had not been utilised by the <ORG>. On the contrary, the <ORG> for the assessee has demonstrated before us as to how the Assessing Officer had issued detailed query letters for eliciting necessary information from the assessee. The case law cited by the assessee and referred to above makes it abundantly clear that the <ORG> Commissioner must state the reasons for intervention before assuming jurisdiction under section 263 and while passing the order under section 263 must come to a conclusion that the order passed by the Assessing Officer was not only erroneous but also prejudicial to the interests of the revenue. In the case of <ORG> (supra) the facts were more or less similar to what we find in the instant case. In that case for assessment year 1979-80, the Assessing Officer completed the assessment. The <ORG> Commissioner intervened under section 263 of the Act and set aside the order of assessment with a direction to make fresh assessment on the ground that business loss of the assessee amounting to Rs. 30,000 was determined after adjusting deductions under section 80J and was allowed to be carried forward and also due to certain other infirmities. The <ORG> found that no firm conclusions were arrived at by the Commissioner in his revisional jurisdiction, and therefore, it cou<ORG> not be said that the assessment made by the Assessing Officer was erroneous, which was one of the prerequisites for the exercise of revisional jurisdiction by the Commissioner and hence set aside the order of the Commissioner. <ORG> he<ORG> that the Commissioner did not furnish his opinion or consider the cited cases or the arguments raised and merely observed that these were the points which deserved consideration and after setting aside the order of the <ORG> Assessing Officer, issued a direction for making assessment afresh, which was not permissible under the provisions contained in section 263 of the Act. <ORG> further he<ORG> that the Commissioner had to come to a firm decision that the order of the <ORG> was erroneous and prejudicial to the interests of the revenue and since no decision about the erroneous nature of the order was firmly taken. The <ORG> was he<ORG> to be right in vacating the order of the Commissioner under section 263 . In our opinion, the fact in the case of <ORG> (supra), as discussed above, are akin to the in the instant case. In the present case also, the Commissioner has not come to a firm conclusion as to how the order passed by the Assessing Officer was erroneous. All the necessary enquiries as noted above already been made by the Assessing officer. The assessee had all furnished a cogent reply before the <ORG> Commissioner when a show-cause notice issued under section 263(1) was issued. In the face of this evidence, the <ORG> Commissioner cou<ORG> not pass an order under section 263 by remarking that it was neither proper nor possible for him to verify the explanation furnished by the assessees counsel. In fact, it was the duty of the <ORG> Commissioner to took the explanation of the <ORG> counsel for the assessee and come to a firm conclusion as to whether the Assessing Officer had committed an error framing the assessment. Setting aside an assessment is no ordinary matter. In fact, in tax laws as in other laws, certainly and finality are the prerequisites of a good tax administration. The orders of the subordinate authority shou<ORG>, therefore, not be cancelled or set aside on mere whims and fancies; there must be very compelling reasons for interference by the <ORG> Commissioner under section 263 . In the instant case, however, the <ORG> Commissioner has left the enquiries to be made to the Assessing Officer without reaching a firm conclusion that the order passed was, in fact, erroneous. We have therefore, no hesitation to say that the impugned orders stands vitiated for the reasons mentioned above and is hereby vacated.

11. In the result, the appeal is allowed.


PETITIONER: INDIAN AND EASTERN NEWSPAPER SOCIETY NEW DELHI Vs. RESPONDENT: COMMISSIONER OF INCOME TAX, NEW DELHI DATE OF JUDGMENT31/08/1979 BENCH: <NAME>, R.S. BENCH: <NAME>, R.S. BHAGWATI, P.N. TULZAPURKAR, V.D. CITATION: 1979 AIR 1960 1980 SCR (1) 442 1979 SCC (4) 248 ACT: Income Tax Act 1961-S. 147(b)-Scope of-"Information" "Reason to believe"-Meaning of-Opinion of audit party of <ORG>-If would constitute "information". HEADNOTE: Section 147(b) of the Income Tax Act, 1961 provides that if an Income Tax officer has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may assess or reassess such income. The internal audit organisation of the income tax department, in the course of auditing the income tax records pertaining to the assessee for certain assessment years stated that the assessee's income on account of letting out of halls and rooms should not have been assessed as income from business but an assessment should have been made under the head "Income from property". Treating the report as information in his possession under s. 147(b) the Income Tax officer re-assessed the assessee's income The Appellate Assistant Commissioner reversed the Income Tax officers order. On the other hand, <ORG> took the view that the Income Tax officer had jurisdiction to proceed under s.147(b). In a reference under s.257 of the Income Tax Act the question was whether the Income Tax officer was legally justified in reopening the assessment under s. 147(b) on the basis of the view expressed by the Internal Audit party received by him subsequent to the original assessment. Allowing the appeal, ^ HELD: The opinion of the internal audit organization of the <ORG> on a point of law cannot be regarded as information within the meaning of s. 147(b) of the Act. [455A]. 1. (a) An assessment proceeding, which is a quasi- judicial proceeding, acquires finality on the assessment order being made. The finality of such an order can be disturbed only in proceedings, and within the confines, provided by law. An appeal, revision and rectification are proceedings in which the finality of the assessment may be questioned. Section 147 , under which an assessment may be reopened, is a proceeding for assessing income which has escaped assessment. [446F-G] 2. In cases falling under s. 147(b) "information" is an indispensable ingredient. The word ''information'' has been interpreted by this Court to mean not only facts or factual material but include information as to the true and correct state of the law and, therefore, information as to relevant judicial decisions. The term is also defined as "instruction" or Knowledge derived from an external source concerning facts or particular, or as to law, relating to n matter bearing on the assessment. [447D- <CITATION> 35 I.T.R. 1 (S.C.)=  Sup. I SCR 10, <CITATION> 67 I.T.R. Il(SC)= I SCR 10, referred to. 443 3.(a) By its inherent nature, a fact has concrete existence. It influences the determination of an issue by the mere circumstance of its relevance. It requires no further authority to make it significant. [447-H]. (b) The term 'law' is used in the sense of norms or guiding principles having legal effect and legal consequences. To possess legal significance for that purpose, law must be enacted or declared by a competent authority. The legal sanction vivifying it imparts to it its force and validity and binding nature. Law may be statutory law enacted by a competent legislative authority, or it may be judge made law emanating from a declaration or exposition of the content of a legal principle or the interpretation of a statue and may in particular cases extend to a definition of the status of a party or the legal relationship between the parties, the declaration being rendered by a competent judicial or quasi-judicial authority empowered to decide questions of law between contending parties. The declaration or exposition is ordinarily set forth in the judgment of a court or the order of a tribunal. Such declaration or exposition in itself bears the character of law. In every case, therefore, to be law it must be a creation by a formal source, either legislative or judicial authority. A statement by a person or body not competent to create, or define the law cannot be regarded as law. [448A-D] (c) Where s. 147(b) is read as referring to 'information' as to law, what is contemplated is 'information' as to the law created by a formal source. It is law which, because it issues from a competent legislature or a competent judicial or quasi-judicial authority, influences the course of the assessment and decides any one or more of these matters which determine the assessee's tax liability [448G] 4. The Internal Audit organisation of the <ORG> was set up primarily for imposing a check over the arithmetical accuracy of the computation of income and the determination of tax. The audit of income tax receipts having been entrusted to the Comptroller and Auditor-General of India, it is intended as an exercise in removing mistakes and errors in income tax records before they are submitted to the scrutiny of the Comptroller and Auditor General. The audit by the Comptroller and Auditor General is, by virtue of s. 16 of the Comptroller and Auditor General (Duties, Powers and Conditions of Service) Act, 1971 intended to ensure the sufficiency or otherwise of the rules and procedures prescribed for the purpose of securing an effective check on the assessment, collection and proper allocation of revenue and to ascertain whether the rules and procedure are being fully observed and L nothing more. Therefore the contents of an internal audit report cannot be construed as enjoying the status of a declaration of law binding on the Income Tax Officer. Both the internal audit party of the <ORG> and the Audit report of the Comptroller and Auditor General perform essentially administrative or executive functions and cannot be attributed the power of judicial supervision over the quasi-judicial acts of income tax authorities. The statute does not contemplate such power The opinion of the audit party in regard to the application of one section of the Income Tax Act instead of another by the Income Tax officer is not law because it is rot a declaration by a body authorised to declare the law. [450B-F] 444 5. While the law may be enacted or laid down only by a. body or person with authority in that behalf, knowledge or awareness of the law may be communicated by any one. No authority is required for the purpose of communicating knowledge or awareness of the law. [450G] 6 (a) In every case the Income Tax officer must determine for himself what the effect and consequence of the law mentioned in the audit note are and whether in consequence of the law which has come to his notice he can reasonably believe that income had escaped assessment. The basis of his belief must be the law of which he has now become aware. The true evaluation of the law in its bearing on the assessment must be made directly and solely by the Income Tax officer. [451C- <CITATION> 35 I.T.R. I (SC)=  Sup. I SCR 10, <CITATION> 67 I.T.R. 11 (SC)= 1 SCR 10, <CITATION>  82 I.T.R. 831 followed <NAME>, Income Tax officer, Croup Circle 11(1), <CITATION> , 109 I.T.R. 537, <CITATION> , 102 I.T.R. 287, over-ruled. Assistant Controller of Estate Duty Y. Nawab Sir Mir Osman Ali Khan Bahadur, 72 I.T.R, 376 referred to. <CITATION> 84 I.T.R 584, Commissioner of Income Tax v. <NAME> 85 I.T.R 102, <CITATION> officer, 99 I.T.R. 148, <NAME> v Com missioner of Income Tax, Kerala, 90 I.T.R 503, <CITATION> . 107 I.T.R. 570, <CITATION> officer, Companies Circle, 'A' Ward, Kanpur, 111 I.T.R. 287 not approved. (b) The error discovered by the Income Tax Officer on a. reconsideration of the same material (and nothing more) does not give the Income Tax Officer the power to reopen the assessment. [451G] (c) The submission of the <ORG> that upon receipt of the audit note the Income Tax officer discovers or realises that a mistake has been committed in the original assessment and therefore the discovery of the mistake would be "information" within the meaning of s. 147(b) is inconsistent with the terms of the section. What the section envisages is that the Income Tax officer must first have information in his possession and then in consequence of such information he must have reason to believe that income has 'escaped assessment. The realisation that income has escaped assessment is covered by the words "reason to believe", and it follows from the "information" received by him. The information is not the realisation; the information gives birth to the realisation. [452C-D] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Tax Reference Case Nos. 1 to 4 of 1973.

Income Tax Reference under section 257 of Income Tax Act 1961 made by <ORG> Delhi Bench 'C' in R.A. Nos. 491 to 494 of 1971-72 (I.T.A. NOS. 6992,19629- 19631 of 1967-68).

<NAME>, (Mrs.) <NAME>, <NAME> an(3 J. B. Dadachanji for the appellant.

<NAME> and Miss <NAME> for the respondent.

(Dr.) <NAME>, <NAME> and <NAME> for the Intervener.

The Judgement of the Court was delivered by <NAME>, J.-Can the view expressed by an internal audit party of <ORG> on a point of law be regarded as ''information' for the purpose of initiating proceedings under section 147(b) of the Income Tax Act, 1961 ? opinion on the question has been divided among the High Courts, and accordingly the present cases have been referred by <ORG> under s. 257 of the Act.

The assessee, Messrs. <ORG>, is a society registered under the Indian Companies Act . It is a professional association of newspapers established with the principal object of promoting the welfare and interest of all newspapers. The assessee owns a building in which a conference hall and rooms are let out on rent lo its members as well as to outsiders. Certain other services are also provided to the members. The income from that source was assessed to tax all along as income from business. It was so assessed for the years 1960-61, 1961-62, 1962-63 and 1963-64 also.

<ORG> includes an internal audit organisation whose function it is to examine income-tax records and check mistakes made therein with a view ultimately to improve the quality of assessments. In the course of auditing the income-tax records pertaining to the assessee for the assessment years 1960-61 to 1963-64, the internal audit party expressed the view that the money realised by the assessee on account of the occupation of its conference hall and rooms should not have been assessed as income from business. It said that an assessment should have been made under the head "Income from property". The Income Tax Officer treated the contents of the report as "information" in his possession for the purpose of s. 147(b) of the Income Tax Act. 1961, and reassessed the income on that basis. The Appellate Assistant Commissioner allowed the appeals filed by the assessee holding, inter alia, that in law it could not be said that the Income Tax officer had any "information" in his possession enabling him to take action under s. 147(b) . On appeal by the <ORG>, <ORG>, Delhi Bench noticed a conflict of judicial opinion on the question whether the internal audit report could be treated as "information" for the purpose of s. 147(b). <ORG> in <CITATION> 11(1), Ahmedabad had held that an internal audit report could not be regarded as "information", while <ORG> in <CITATION> has expressed a contrary view. Following the view adopted by <ORG>, the Tribunal held that the Income Tax officer had jurisdiction to proceed under s. 147(b) . The assessee applied for a reference, and having regard to the difference between the High Courts on the point, the Tribunal has considered it expedient to refer the following question of law directly to this Court:-

"Whether, on the facts and in the circumstances of the case, the Income-tax officer was legally justified in reopening the assessments under section 147 (b) for the years 1960-61, 1961-62, 1962-63 and 1963-64 on the basis of the view expressed by the Internal Audit party and received by him subsequent to the original assessment ?"

Since then, the judgment of <ORG> in <NAME> case (supra) has, on appeal, been reversed by this Court in <NAME>, Income Tax Officer, Group Circle 11(1) <CITATION> . It has been strenuously contended that the view taken by this Court calls for further consideration. Having regard to the dimensions of the controversy and the importance of the question, we have been persuaded to take a fresh look at the point.

An assessment proceeding is a quasi judicial proceeding. It acquires finality on the assessment order being made. And the finality of such an order can be disturbed only in proceeding, and within the confines provided by law. An appeal, revision and rectification are proceedings in which the finality may be questioned. The assessment may also be reopened under section 147 of the Act. It is a proceeding for assessing income which has "escaped assessment". Section 147 reads:-

"147. If-

(a) the Income Tax officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income Tax officer or Lo disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or

(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153 , assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned."

In cases falling under section 147(b) , the expression "information" prescribes one of the conditions upon which a concluded assessment may be reopened under that provision. It is an indispensable ingredient which must exist before the section can be availed of. What does "information" in section 147(b) connote ? In <NAME> v. Commissioner of Income-tax this <ORG>, construing the corresponding section 34(1) (b) of the Indian Income Tax Act , 1922 held the word "information" to mean not only facts or factual material but to include also information as to the true and correct state of the law and, therefore, information as to relevant judicial decisions. Thereafter, in <CITATION> , the <ORG> defined the expression "information" in section 147(b) of the Income-Tax Act 1961 as "instruction or knowledge derived from an external source concerning facts or particulars, or as to law, relating to a matter bearing on the assessment." That definition has been reaffirmed in subsequent cases, and with it as the point of departure we shall now proceed.

In so far as the word "information" means instruction or know- ledge concerning facts or particulars, there is little difficulty. By its inherent nature, a fact has concrete existence. It influences the determination of an issue by the mere circumstance of its relevance. It requires no further authority to make it significant. Its quint essential value lies in its definitive vitality.

But when "information" is regarded as meaning instruction or knowledge as to law the position is more complex. When we speak of "law", we ordinarily speak of norms or guiding principles having legal effect and legal consequences. To possess legal significance for that purpose, it must be enacted or declared by competent authority. The legal sanction vivifying it imparts to it its force and validity and binding nature. Law may be statutory law or, what is popularly described as, judge-made law. In the former case, it proceeds from enactment having its source in competent legislative authority. Judge made law emanates from a declaration or exposition of the content of a legal principle or the interpretation of a statute, and may in particular cases extend to a definition of the status of a party or the legal relationship between parties, the declaration being rendered by a competent judicial or quasi- judicial authority empowered to decide questions of law between contending parties. The declaration or exposition is ordinarily set forth in the judgment of a court or the order of a tribunal. Such declaration or exposition in itself bears the character of law. In every case, therefore, to be law it must be a creation by a formal source, either legislative or judicial authority. A statement by a person or body not competent to create or define the law cannot be regarded as law. The suggested interpretation of enacted legislation and the elaboration of legal principles in text books and journals do not enjoy the status of law. They are merely opinions and, at best, evidence in regard to the state of the law and in themselves possess no binding effect as law. The forensic submissions of professional lawyers and the seminal activities of legal academics enjoy no higher status. Perhaps the only exception is provided by the writings of publicists in international law, for in the law of nations the distinction between formal and material sources is difficult to maintain.

In that view, therefore, when section 147(b) of the Income Tax Act is read as referring to "information" as to law, what is contemplated is information as to the law created by a formal source. It is law, we must remember, which because it issues from a competent legislature or a competent judicial or quasi-judicial authority, influence the course of the assessment and decides any one or more of those matters which determine the assessee's tax liability.

In determining the status of an internal audit report, it is necessary to consider the nature and scope of the functions of an internal audit party. The internal audit organisation of <ORG> was set up primarily for imposing a check over the arithmetical accuracy of the computation of income and the determination of tax, and now, because of the audit of income-tax receipts being entrusted to the A Comptroller and Auditor-General of India from 1960, it is intended as an exercise in removing mistakes and errors in income tax records before they are submitted to the scrutiny of the Comptroller and Auditor-General. Consequently, the nature of its work and the scope of audit have assumed a dimension ca-extensive with that of Receipt Audit. The nature and scope of Receipt Audit are defined by section 16 of the Comptroller and Auditor General's-(Duties, Powers and Conditions of Services) Act, 1971.

Under that section, the audit by the Comptroller and Auditor General is principally intended for the purposes of satisfying him with regard to the sufficiency of the rules and procedures prescribed for the purpose of securing an effective check on the assessment, collection and proper allocation of revenue. He is entitled to examine the accounts in order to ascertain whether the rules and procedures are being duly observed, and he is required, upon such examination, to submit a report. His powers in respect of the audit of income-tax receipts and refunds are outlined in the <ORG>'s Circular No. 14/19/ 56-II dated July 28, 1960. Paragraph 2 of the Circular repeats the provisions of section 16 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971. And paragraph 3 warns that "<ORG> should not in any way substitute itself for the revenue authorities in the performance of their statutory duties." Paragraph 4 declares:

"4. Audit does not consider it any part of its duty to pass in review the judgment exercised or the decision taken in individual cases by officers entrusted with those duties, but it must be recognised that an examination of such cases may be an important factor in judging the effectiveness of assessment procedure .. It is however, to forming a general judgment rather than to the detection of individual errors of assessment, etc. that the audit enquiries should be directed. The detection of individual errors is an incident rather than the object of audit."

Other provisions stress that the primary function of audit in relation to assessments and refunds is the consideration whether the internal procedures are adequate and sufficient. It is not intended that the purpose of audit should go any further. Our attention has been invited to certain provisions of the Internal Audit Manual more specifically defining the functions of internal audit in <ORG>. While they speak of the need to check all assessments and refunds in the light of the relevant tax laws, the orders of the Commissioners of Income Tax and the instructions of <ORG>, nothing contained therein can be construed as conferring on the contents of an internal audit report the status of a declaration of law binding on the Income Tax Officer. Whether it is the internal audit party of <ORG> or an audit party of the Comptroller and Auditor- General, they perform essentially administrative or executive functions and cannot be attributed the powers of judicial supervision over the quasi-judicial acts of income tax authorities. The Income Tax Act does not contemplate such power in any internal audit organisation of <ORG>; it recognises it in those authorities only which are specifically authorised to exercise adjudicatory functions. Nor does section 16 of the Comptroller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971 envisage such a power for the attainment of the objectives incorporated therein. Neither statute supports the conclusion that an audit party can pronounce on the law, and that such pronouncement amounts to "information" within the meaning of section 147(b) of the Income Tax Act, 1961.

But although an audit party does not possess the power to so pronounce on the law, it nevertheless may draw the attention of the Income Tax officer to it. Law is one thing, and its communication another. If the distinction between the source of the law and the communicator of the law is carefully maintained, the confusion which often results in applying section 147(b) may be avoided. While the law may be enacted or laid down only by a person or body with authority in that behalf, the knowledge or awareness of the law may be communicated by anyone. No authority is required for the purpose.

In the present case, an internal audit party of <ORG> expressed the view that the receipts from the occupation of the conference hall and rooms did not attract section 10 of the Act and that the assessment should have been made under section 9 . While  sections 9 and 10 can be described as law, the opinion of the audit A party in regard to their application is not law. It is not a declaration by a body authorised to declare the law. That part alone of the note of an audit party which mentions the law which escaped the notice of the Income Tax officer constitutes "information" within the meaning of section 147(b) ; the part which embodies the opinion of the audit parts in regard to the application or interpretation of the law cannot be taken into account by the Income Tax Officer. In every case, the Income Tax officer must determine for himself what is the effect and consequence of the law mentioned in the audit note and whether in consequence of the law which has now come to his notice he can reasonably believe that income has escaped assessment. The basis of his belief must be the law of which he has now become aware. The opinion rendered by the audit party in regard to the law cannot for the purpose of such belief, add to or colour the significance of such law. In short, the true evaluation of the law in its bearing on the assessment must be made directly and solely by the Income Tax officer.

Now, in the case before us, the <ORG> officer had, when he made the original assessment, considered the provisions of sections 9 and 10 . Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion of material already considered by him. The <ORG> contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b) . Reliance is placed on <ORG> , where a Bench of two learned Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the <ORG> officer must fall within section 34(1) (b) of the Indian <ORG> Act , 1922. It appears to us, with respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on reappraising the material considered by him during the original assessment, the <ORG> officer discovers that he has committed an error in consequence of which income has escaped assessment it is open to him to reopen the assessment. In our opinion, an error discovered on a reconsideration of the same material (and not more) does not give him that power. That was the view taken by this Court in <ORG> (supra), <ORG> and Company (supra) and <ORG> . and we do not believe that the law has since taken a different course. Any observations in <ORG> v Commissioner of <ORG> (supra) suggesting the contrary do not, we say with respect, lay down the correct law.

A further submission raised by the <ORG> on section 147(b) of the Act may be considered at this stage. It is urged that the expression "information" in section 147(b) refers to the realisation by the <ORG> officer that he has committed an error when making the original assessment. It is said that, when upon receipt of the audit note the <ORG> officer discovers or realizes that a mistake has been committed in the original assessment, the discovery of the mis take would be "information" within the meaning of section 147(b) . The submission appears to us inconsistent with the terms of section 147(b) . Plainly, the statutory provision envisages that the <ORG> officer must first have information in his possession, and then in consequence of such information he must have reason to believe that income has escaped assessment. The realisation that income has escaped assessment is covered by the words "reason to believe'. and it follows from the "information" received by the <ORG> officer. The information is not the realisation, the information gives birth to the realisation.

The recent decision of this Court in <CITATION> (supra) may be examined now. While making an assessment on a Hindu undivided family, the <ORG> officer allowed a deduction of municipal taxes in determining the annual value of two house properties occupied by the assessee. Subsequently, the <ORG> officer re-opened the assessment on receipt of a report from the office of <ORG> of India that on a true interpretation of s. 23(2) of the <ORG> Act, 1961, the deduction of municipal taxes was not admissible in the computation of the annual value of self- occupied house properties. The assessee contended that the report did not constitute "information" within the meaning of section 147(b) of the Act, and <ORG> accepted the plea in the view that information as to law would consist of a statement by a person, body or authority competent and authorised to pronounce upon the law and invested with the authority to do so, and that <ORG> was not such competent or authorised authority. On appeal by the <ORG>, a Bench of two learned Judges of this Court, although endorsing the principle enunciated by <ORG>, said that the audit department was the proper machinery to scrutinise assessments made by the <ORG> officer and to point out errors of law contained therein, and <ORG> had erred in taking the strict view which it did. The Court rested its decision on <CITATION> , <CITATION> (supra), Commissioner of <ORG> v. <NAME> and <CITATION> officer.

<CITATION> osman Ali Khan Bahadur (supra), this Court held the opinion of <ORG> as regards the correct valuation of securities for the purpose of estate duty to be "information" within the meaning of section 59 of the Estate Duty Act, 1953 on the basis of which the Controller of Estate Duty was held entitled to entertain a reasonable belief that property assessed to estate duty had been under- valued. The circumstance that the opinion of the <ORG> was rendered in an appeal filed before it under the Estate Duty Act against the assessment made by the Assistant Controller of Estate Duty was apparently not brought to the notice of this Court when it heard <CITATION> (supra). The opinion of the <ORG> represented its view as a quasi-judicial authority possessing jurisdiction to lay down the law. Although the <ORG> did not enhance the valuation of the securities in the appellate proceeding because of the argument advanced by the appellant, nonetheless its observations amounted to information as to the law. It was not a case where the <ORG> was functioning as an extrajudicial authority, performing administrative or executive functions, and not competent or authorised to pronounce upon the law. <ORG> in <CITATION> (supra) held that the scrutiny note of <ORG> constituted "information" within the meaning of section 147(b) of the Income Tax Act because the Comptroller and <ORG>or-General of India was empowered by statute to scrutinise the proceedings of <ORG> and to point out defects and mistakes which adversely affected the <ORG>. <ORG> considered that the view that information as to law could be gathered only from the decisions of judicial or quasi- judicial authorities was unduly restrictive. In Commissioner of Income-tax v. <NAME> (supra), <ORG> also regarded the note put up by <ORG> as "information" within the meaning of section 147(b) of the Act, but it appears to have assumed, without anything more, that an audit note would fall within that expression. As regards <CITATION> officer (supra) the "information" consisted in a note of the <ORG> and <ORG> that the payment of interest by the assessee was in fact made to his own account in the <ORG> and, therefore, in law the money paid did not vest in the Government and, consequently, the original assessment was erroneous in so far as it allowed the deduction of the interest as expenditure made by the assessee. <ORG> upheld the reassessment on the finding that the note of the <ORG> and <ORG> had to be taken into account by the Income Tax officer, because in his executive capacity he had to be guided by the advice rendered by <ORG> and he had to pay due regard to the note of the <ORG> because the officers of the <ORG> Department were experts empowered to examine and check upon the work of the Income Tax officers. It seems to us that the considerations on which <ORG> rested its judgment are not correct. But the decision of the case can be supported on the ground that the basic information warranting the re- opening of the assessment was the fact that the payment of interest was made to the <ORG> account of the assesses himself. That the money so paid did not vest in the Government was a conclusion which followed automatically upon that fact, and no controversy in law could possibly arise on that point.

On the considerations prevailing with us, we are of opinion that the view taken by <ORG> and <ORG> in the aforementioned cases is wrong and we must, with great respect, hold that this <ORG> was in error in the conclusion reached by it is. <CITATION> (supra).

Our attention has been drawn to the further decision of <ORG> in <CITATION> and the decisions of <ORG> in <CITATION> and <CITATION> officer, Companies Circle, "A" Ward, Kanpur. <ORG> merely followed its earlier judgment in Commissioner of Income Tax v. <NAME> (supra) and <ORG> was impressed by the same reasons substantially which persuaded <ORG> and <ORG> in the cases referred to above.

Therefore, whether considered on the basis that the. nature and scope of the functions of the internal audit organisation of <ORG> are co-extensive with that of Receipt Audit or on the basis of the provisions specifically detailing its functions in the Internal Audit Manual, we hold that the opinion of an internal audit party of <ORG> on a point of law cannot be regarded as "information" within the meaning of section 147(b) of the Income Tax Act, 1961.

The question referred by <ORG> is answered in the negative, in favour of the assessee and against the <ORG> The assessee is entitled to one set of costs in these appeals.

P.B.R. Appeals allowed .