# MAHADEO S/O KERBA MASKE v. STATE OF MAHARASHTRA AND ANR

- **Citation:** [2013] 17 S.C.R. 667
- **Court:** Supreme Court of India
- **Decided:** 2013-07-23
- **Case number:** Criminal Appeal No.6 of 2010
- **Bench:** A.K. Patnaik, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahadeo-s-o-kerba-maske-v-state-of-maharashtra-and-anr-28809
- **Pages:** 92

## Headnote

A
B
Penal Code, 1860 - ss. 363 and 376 - Kidnapping and
rape - Of a girl abqut 15 years of age - Conviction by courts
below concluding that prosecutrix was aged below 18 years -
C
Held: In view of the version of the prosecutrix, which was fully
supported by chemical analyst report as well as medical
evidence, appellant rightly convicted - Conviction upheld.
Criminal Trial - Rape case - Determination of age of o
prosecutrix - Opinion of doctor as regards age of prosecutrix
- Cannot be relied on if such opinion is formed without
scientific examination of prosecutrix such as ossification test
- r.12(3)(b) of Juvenile Justice Rules specifically provides that
medical opinion can be sought only in absence of alternative E
methods described ulr. 12(3)(a)(i) and (iii) - Juvenile (Care
and Pratection) Rules, 2007 - ss. 12(3)(a)(i) and (iii) and
12(3)(b) . .
Prosecution was initiated against the appellantaccused u/ss. 363, 376 and 506 IPC. The prosecution
F
case was that the prosecutrix (a 15 years old girl) who
used to participate in programmes of 'Bhajan' singing,
got acquainted with the appellant-accused, who was a
musician and singer. He allured her to come along with
him to prepare audio cassettes of her 'Bhajans' and G
songs, which would fetch her a lot of money. One day he
persuaded her to go along with him to another State and
asked her to bring ornaments from her house. As a result,
the prosecutrix took gold ornaments worth Rs. one Jakh
·
667
H
668
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
and went with him. The accused confined her in a
relative's house for more than one month 20 days and
committed forcible sexual intercourse. When he came to
know that missing report has been lodged, he brought
the prosecutrix back to her place. Trial court convicted
s the accused for the offences charged. High Court
confirmed the conviction u/ss. 363 ar.d 376 IPC, but
acquitted him u/s. 506. Hence the present appeal.
Dismissing the appeal, the Court
C
HELD: 1.1. Every relevant factor required for arriving
at a just conclusion about the age of the prosecutrix PW3, was appropriately made and consequently the
conclusion arrived at by the trial court and confirmed by
the High Court that the prosecutrix was below 18 years
D of age at the time of the occurrence, was perfectly
justified. [Para 8] (673-C]
1.2. Merely based on the opinion of PW-8 (the
doctor), who in her evidence stated that the age of the
E
prosecutrix could have been between 17 to 25 years, the
age ofthe prosecutrix could not be acted upon. The trial
court correctly found that to rely upon the said version
of PW-8, scientific examination of the prosecutrix such as,
ossification test to ascertain the exact age should have
F
been conducted which was not done in the present case.
[Para 9] (673-D-F]
1.3. Under Rule 12(3)(b) of Juvenile Justice (Care and
Protection) Rules, 2007 it is specifically provided that only
in the absence of alternative methods described under
G 12(3)(a)(i) to (iii), the medical opinion can be sought for.
In the light of such a statutory rule prevailing for
ascertainment of the age of a juvenile, the same yardstick
can be rightly followed by the Courts for the purpose of
ascertaining the age of a victim as well. (Para 11] (674-CH D]
MAHADEO v. STATE OF MAHARASHTRA
669
1.4. In the instant case, there were certificates issued
A
by the school in which the prosecutrix did her Vth
standard and in the school leaving certificate issued by
the said school under Exhibit 54, the date of birth of the
prosecutrix has been clearly noted as 20.05.1990, and this
document was also proved by PW-11. Apart from the
B
transfer certificate as well as the admission form
maintained by the primary school where the prosecutrix
had her initial education, also confirmed the date of birth
as 20.5.1990. The reliance placed upon the said evidence
by the Courts below to arrive at the age of the prosecutrix c
to hold that the prosecutrix was below 18 years of age
at the time of the occurrence w

## Text

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[2013] 17 S.C.R. 667
MAHADEO S/O KERBA MASKE
v.
STATE OF MAHARASHTRA AND ANR.
(Criminal Appeal No.6 of 2010)
JULY 23, 2013
[A.K. PATNAIK AND FAKKIR MOHAMED IBRAHIM
KALIFULLA, JJ.]
A
B
Penal Code, 1860 - ss. 363 and 376 - Kidnapping and
rape - Of a girl abqut 15 years of age - Conviction by courts
below concluding that prosecutrix was aged below 18 years -
C
Held: In view of the version of the prosecutrix, which was fully
supported by chemical analyst report as well as medical
evidence, appellant rightly convicted - Conviction upheld.
Criminal Trial - Rape case - Determination of age of o
prosecutrix - Opinion of doctor as regards age of prosecutrix
- Cannot be relied on if such opinion is formed without
scientific examination of prosecutrix such as ossification test
- r.12(3)(b) of Juvenile Justice Rules specifically provides that
medical opinion can be sought only in absence of alternative E
methods described ulr. 12(3)(a)(i) and (iii) - Juvenile (Care
and Pratection) Rules, 2007 - ss. 12(3)(a)(i) and (iii) and
12(3)(b) . .
Prosecution was initiated against the appellantaccused u/ss. 363, 376 and 506 IPC. The prosecution
F
case was that the prosecutrix (a 15 years old girl) who
used to participate in programmes of 'Bhajan' singing,
got acquainted with the appellant-accused, who was a
musician and singer. He allured her to come along with
him to prepare audio cassettes of her 'Bhajans' and G
songs, which would fetch her a lot of money. One day he
persuaded her to go along with him to another State and
asked her to bring ornaments from her house. As a result,
the prosecutrix took gold ornaments worth Rs. one Jakh
·
667
H
668
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
and went with him. The accused confined her in a
relative's house for more than one month 20 days and
committed forcible sexual intercourse. When he came to
know that missing report has been lodged, he brought
the prosecutrix back to her place. Trial court convicted
s the accused for the offences charged. High Court
confirmed the conviction u/ss. 363 ar.d 376 IPC, but
acquitted him u/s. 506. Hence the present appeal.
Dismissing the appeal, the Court
C
HELD: 1.1. Every relevant factor required for arriving
at a just conclusion about the age of the prosecutrix PW3, was appropriately made and consequently the
conclusion arrived at by the trial court and confirmed by
the High Court that the prosecutrix was below 18 years
D of age at the time of the occurrence, was perfectly
justified. [Para 8] (673-C]
1.2. Merely based on the opinion of PW-8 (the
doctor), who in her evidence stated that the age of the
E
prosecutrix could have been between 17 to 25 years, the
age ofthe prosecutrix could not be acted upon. The trial
court correctly found that to rely upon the said version
of PW-8, scientific examination of the prosecutrix such as,
ossification test to ascertain the exact age should have
F
been conducted which was not done in the present case.
[Para 9] (673-D-F]
1.3. Under Rule 12(3)(b) of Juvenile Justice (Care and
Protection) Rules, 2007 it is specifically provided that only
in the absence of alternative methods described under
G 12(3)(a)(i) to (iii), the medical opinion can be sought for.
In the light of such a statutory rule prevailing for
ascertainment of the age of a juvenile, the same yardstick
can be rightly followed by the Courts for the purpose of
ascertaining the age of a victim as well. (Para 11] (674-CH D]
MAHADEO v. STATE OF MAHARASHTRA
669
1.4. In the instant case, there were certificates issued
A
by the school in which the prosecutrix did her Vth
standard and in the school leaving certificate issued by
the said school under Exhibit 54, the date of birth of the
prosecutrix has been clearly noted as 20.05.1990, and this
document was also proved by PW-11. Apart from the
B
transfer certificate as well as the admission form
maintained by the primary school where the prosecutrix
had her initial education, also confirmed the date of birth
as 20.5.1990. The reliance placed upon the said evidence
by the Courts below to arrive at the age of the prosecutrix c
to hold that the prosecutrix was below 18 years of age
at the time of the occurrence was perfectly justified. [Para
12) [67 4-E-G]
2.1. The Rrosecutrix PW-3, in her evidence had
narrated every minute detail as to how the appellant
D
allured her by taking advantage of her contact with him
while singing Bhajan songs, how he persuaded her by
stating that recording of her bhajans in audio cassette
would enable her to earn tons of money and in that
pretext also tempted· her to take away the gold
E
ornaments from the house worth Rs.1 lakh and thus
gained her confidence to go along with him and misused
his company by keeping her in a place where she was
not acquainted with the local language and ultimately,
abused her physically at least for more than for a month
F
and twenty days. The vivid description of the behaviour
of the appellant during the period when she was kept in
his custody was clearly demonstrated by the prosecutrix
and any amount of cross examination at the instance of
the appellant, did not bring about any candid
G
contradiction in her statement in order to disbelieve her
deposition. The version of the prosecutrix was fully
supported by the chemical analyst report, as well as , the
medical evidence. [Para 15] [676-C-G]
H
670 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
16. In such circumstances, the trial court rightly
found the appellant guilty of the offences charged against
him. The conclusion of the trial court in having found the
appellant guilty of offences u/ss. 363 and 376 IPC was
further upheld by the High Court. The conclusion of the
B High Court is also perfectly justified. [Paras 16 and 17]
[676-H; 677-A-B]
c
D
E
Lillu alias Rajesh and Anr. vs. State of Haryana AIR
(2013) SC 1784
- relied on.
Case Law Reference:
AIR (2013) SC 1784
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.6 of 2010.
From the Judgment and Order dated 05.03.2008 of the
High Court of Judicature of Bombay, Bench at Aurangabad in
Criminal Appeal No. 764 of 2006.
Rameshwar Prasad Goyal for the Appellant.
Sushil Karanjkar, Sanjay Kharde, Asha Gopalan Nair for
the Respondents.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. The
F sole appellant is before us. The challenge is to the judgment
of the learned Single Judge of the High Court of Bombay,
Bench at Aurangabad dated 05.03.2008, in Criminal Appeal
No.764 of 2006. The appellant was proceeded against for the
offences punishable under Sections 363, 376 and 506 of the
G Indian Penal Code. He was sentenced to suffer rigorous
imprisonment for three years, along with fine of Rs.3000/- and
in default to suffer rigorous imprisonment for six months for the
offence under Section 363 IPC; he was further sentenced to
suffer rigorous imprisonment for seven years, along with fine
H of Rs.5000/- and in default to suffer rigorous imprisonment for
MAHADEO v. STATE OF MAHARASHTRA
671
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
two years for the offence under Section 376 IPC. The trial Court
A
also punished the appellant under Section 506 IPC and
sentenced him to suffer rigorous imprisonment for one year,
along with fine of Rs.1000/- with default sentence of tw<.; months'
rigorous imprisonment.
2. The f:ligh Court by the impugned judgment, though
confirmed the conviction and sentence for the offences under
Sections 363 and 376 IPC, set aside the sentence for the
offence under Section 506 IPC.
B
3. Brief facts which are required to be stated are that PWC
3,' the prosecutrix, was aged about 15 years at the time when
the offence was· committed and she was doing her Xlth
standard in a Junior College. Her father was a Police Head
Constable. The prosecutrix was residing with her parents, sister
and two younger brpthers in the government quarter of her
D
father in Police Line, at Latur. She had a flair for music and
used to participate in singing Bhajans. The appellant who is
also stated to be a musician and a singer, developed
acquaintance with the prosecutrix due to her participation in
Bhajan programmes along with him and he allured her by
E
stating that if she goes.along with him to Hyderabad to prepare
audio cassettes of her Bhajans and songs, she can make lot
of money.
4. On 18.09.2005, in the morning when the prosecutrix
was all alone in her house, the appellant is alleged to have
F
approached her and persuaded her to go along with him to
Hyderabad and when she informed him that she had no money
to spend, the appellant is stated to have asked her to bring the
ornaments from her house, which can be used for the purpose
of going to Hyderabad and told her that a lot of money can be
G
earned through the recording of audio cassettes of the
prosecutrix's Bhajan songs. The appellant is stated to have
succeeded in his allurement and inducement, which ultimately
resulted in the prosecutrix going along with the appellant and
after going to Hyderabad and from there to a relative's house
H
672
SUPREME COURT REPORTS
(2013) 17 S.C.R.
A at Karnool (Andhra Pradesh) in the wee hours, the appellant is
alleged to have committed forcible sexual intercourse by
confining her in the said place for a month and twenty days.
Puring the said period, the appellant is stated to have indulged
in the said offence repeatedly, till he himself brought her back
B to Latur, when he came to know that a complaint has been
lodged. It is in the above stated background that the appellant
was proceeded against for the offence of kidnapping, rape and
criminal intimidation, which ultimately resulted in his conviction
and the sentence imposed upon him as confirmed by the High
c Court in the impugned judgment.
5. In support of the case of the prosecution, PWs-1 to 13
were examined and a number of exhibits were also marked.
For our present purpose, it will be sufficient to refer to the
evidence of Tukaram Nagnath Surwase (PW-1), the prosecutrix
D (PW-3) and Dr. Aruna Varte (PW-8), the doctor who examined
the prosecutrix, the Head Mistress (PW-11) and the Head
Master (PW-12) of the school in which the prosecutrix pursued
her school education.
E
6. PW-1, Tukaram Nagnath Surwase, who is the father of
the prosecutrix, lodged the complaint, Exhibit -26. PW-3 is the
prosecutrix. PW-8 is Dr. Aruna Varte, who examined PW-3 and
through her Exhibit 38 the medical report was marked. PW-11
is the Head Mistress of Dnyneshwar Vidhyalaya where the
F prosecutrix was admitted to Vth Standard. PW-11 produced
Exhibit 54, the school leaving certificate, which disclosed the
date of birth of the prosecutrix, as 20.05.1990. PW-12,
Uttamrao Jadhav who is the Head Master of Jawahar Primary
School, Latur stated that the prosecutrix was admitted in his
school on 30.08.1995 in Isl standard, that at the time of
G admission, the father of the prosecutrix produced a birth
certificate issued by Gram Panchayat, disclosing the date of
birth of prosecutrix as 20.05.1990. PW-12 produced the
admission form Exhibit 56 and transfer certificate Exhibit 57
which mention the date of birth of the prosecutrix as 20.05.1990.
H
MAHADEO v. STATE OF MAHARASHTRA
673
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
7. The trial Court considered the evidence of PWs-1, 11
A
and 12, as well as Exhibits 53, 54, 55, 56 and 57 and
concluded that at the time of the commission of the offence
which commenced on 20.09.2005 and continued till 07.11.2005
the prosecutrix was aged about 15 years and 4 months.
8. When we peruse the discussion made by the trial Court
as regards the age factor of the appellant by analyzing the
evidence of PW-11 and 12 along with Exhibits 50, 53, 54 to
B
57, we find that every relevant factor required for arriving at a
just conclusion about the age of the prosecutrix PW-3, was
appropriately made and consequently tl1e conclusion arrived at
C
by the trial Court and confirmed by the High Court that the
prosecutrix was below 18 years of age at the time of the
occurrence, was perfectly justified.
9. Though the learned counsel for the appellant attempted
to find fault with the said conclusion by making reference to the
evidence of PW-8, the doctor, who examined the proseci.Jtrix
and who in her evidence stated that on her examination she
could state that the age of the prosecutrix could have been
between 17 to 25 years, it will have to be held that the rejection
of the said submission even by the trial Court was perfectly in
order and justified. The trial court has found that to rely upon
the said version of PW-8, the doctor, scientific examination of
the prosecutrix such as, ossification test to ascertain the exact
age should have been conducted which was not done in the
present case and, therefore, merely based on the opinion of
PW-8, the age of the prosecutrix, could not be acted upon.
D
E
F
10. We can also in this connection make a reference to a
statutory provision contained in the Juvenile Justice (Care and
Protection) Rules, 2007, whereunder Rule 12, the procedure
G
to be followed in determinin~ the age of a juvenile has been
set out. We can usefully refer to the said provision in this
context, inasmuch as under Rule 12 (3) of the said Rules, it is
stated that in every case concerning a child or juvenile in conflict
with law, the age determination enquiry shall be conducted by
H
674 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A the Court or the Board or, as the case may be, by the committee
by seeking evidence by obtaining:-
/
(a)(i) the matriculation 1 or equivalent certificates, if
available; and in the absence whereof;
B
(ii) the date of birth certificate from the school (other than
a play school); first attended; and in the absence whereof;
c
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
11. Under Rule 12 (3) (b), it is specifically provided that
only in the absence of alternative methods described under 12
(3) (a) (i) to (iii), the medical opinion can be sought for. In the
light of such a statutory rule prevailing for ascertainment of the
age of a juvenile, in our considered opinion, the same yardstick
D can be rightly followed by the Courts for the purpose of
ascertaining the age of a victim as well.
12. In the light of our above reasoning, in the case on hand,
there were certificates issued by the school in which the
E prosecutrix did her Vth standard and in the school leaving
certificate issued by the said school under Exhibit 54, the date
of birth of the prosecutrix has been clearly noted as 20.05.1990,
and this document was also proved by PW-11. Apart from the
transfer certificate as well as the admission form maintained
F by the primary school Latur, where the prosecutrix had her initial
education, also confirmed the date of birth as 20.5.1990. The
reliance placed upon the said evidence by the Courts below
to arrive at the age of the prosecutrix to hold that the prosecutrix
was below 18 years of age at the time of the occurrence was
G perfectly justified and we do not find any good grounds to
interfere with the same.
13. Once the above position that the prosecutrix was a
minor was found to be fully established, thereafter, the only other
question that needs to be examined is as to the sexual assault
H alleged to have been committed by the appellant on her and
MAHADEO v. STATE OF MAHARASHTRA
675
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
whether such an allegation was satisfactorily established A
before the Courts below. In this respect, after the prosecutrix
was found missing, PW-1 after his initial search to trace his
daughter, stated to have preferred missing report in Gandhi
Chowk Polic Station, alleging that she was missing along with
gold ornaments valued at Rs.1 lakh. Thereafter, the search
B
continued and that according to the prosecution the appellant
himself brought back the prosecutrix to village Babhalgaon on
07 .11.2005 whereafter the crime came to be registered as
Crime No.219 of 2005.
14. After the prosecutrix was secured she was examined C
by PW-8, Dr. Aruna Varte on 10.11.2005 who issued the
certificate Exhibit 43. As per the certificate Exhibit 43, PW-8
confirmed that hymen was old ruptured and that the prosecutrix
was used for sexual intercourse. PW-8 confirmed Exhibit.43,
medical certificate issued by her. PW-8 also confirmed that D
based on the chemical analysis report, she issued a medical
certificate and confirmed the contents of the certificate Exhibit43 wnerein she had given the opinion that the prosecutirx was
used for sexual intercourse. When the chemical analysis report
was examined by the trial Court, the trial Court has referred to
E
the contents of the chemical analysis report in Exhibits-60 and
61 and the same can be referred to which has been stated in
paragraph 27. Para 27 reads as under:
"27. C.A. report Ex.60 pertains to the Jangiya and petticoat
F
of prosecutrix and nicker of accused and the result of its
analysis shows that semen stains were found on Jangiya
and petticoat of prosecutrix and nicker of accused and the
blood group of said semen is AB. C.A. report Ex.61
pertains to the blood, vaginal swab and pubic hair of
prosecutrix and the result of its analysis shows that no G
semen is detected on vaginal swab and pubic hair and
blood group is 'B'. C.A. report Ex.62 pertains to the
semen, pubic hair and blood of accused and the result of
analysis shows that the blood group of accused is 'AB';
so also, no semen is detected on the pubic hair of H
676
SUPREME COURT REPORTS
[2013) 17 S.C.R.
A
accused. Now, from the aforesaid C.A. report, it transpired
that the semen detected on Jangiya and petticoat of
prosecutrix is of accused, because of blood group of
accused as well as the blood group of semen found on the
aforesaid clothes of prosecutrix is same. Therefore, these
B
C.A. reports support to the prosecutrix to hold that the
accused has committed rape on the prosecutrix."
(Emphasis added)
15. Keeping the contents of the chemical analysis report,
C
as noted by the Courts below in mind, when we consider the
deposition of the prosecutrix PW-3, we find that she had
narrated every minute detail as to how the appellant allured her
by taking advantage of her contact with him while singing
Bhajan songs, how he persuaded her by stating that recording
D
of her Bhajans in audio cassette would enable her to earn tons
of money and in that pretext also tempted her to take away the
gold ornaments from the house worth Rs.1 lakh and thus gained
her confidence to go along with him and misused his company
by keeping her in a place at Karnool where she was not
E
acquainted with the local language of Telugu and ultimately,
abused her physically at least for more than for a month and
twenty days. The vivid description of the behaviour of the
appellant during the period when she was kept in his custody
i.e., between 20.09.2005 to 07.11.2005, was clearly
F
demonstrated by the prosecutrix and any amount of cross
examination at the instance of the appellant, did not bring about
any candid contradiction in her statement in order to disbelieve
her deposition. The trial Court has also elaborately dealt with
her deposition and found that the version of the prosecutrix was
fully supported by the chemical analyst report, as well as, the
G
medical evidence.
16. In such circumstances, the trial Court in our considered
opinion rightly found the appellant guilty of the offences charged
against him. The conclusion of the trial Court in having found
H
the appellant guilty of offences under Sections 363 and 376 IPC
MAHADEO v. STATE OF MAHARASHTRA
677
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
was further upheld by the High Court by the impugned judgment.
The High Court, however, found that the conviction for the
offence under Section 506 IPC was not sufficiently supported
by evidence and conviction and sentence for offence under
Section 506 IPC was set aside.
17. Having perused the judgment of the High Court, we are
also convinced that the said conclusion is also perfectly
justified.
18. This Court in Lillu 13/ias Rajesh and another vs. State
of Haryana reported in AIR 2013 SC 1784, where one of us
was a party, held in para 11 that:
"11. In State of Punjab v. Ramdev Singh, AIR 2004
SC 1290, this Court dealt with the issue and held that rape
is violative of victim's fundamental right under Article 21
of the Con~tituflon. So, the Courts should deal with such
" cases sternly and severely. Sexual viole}lce, apart from
being a dehumanizing act, is an unlawful intrusion on the
right of privt1cy and sanctity of a woman.· It is a serious
blow to her supreme honour and offencrs her self-esteem
and dignity as well: It degrades and humiliates the victim
and where the victim is a helpless innocent child or a min(!r,
it leaves behind a traumatic experience. A rapist not only
causes physical injuries, but leaves behind a scar on the
most cherished position of a woman, i.e. her dignity,
honour, reputation and chastity. Rape is not only an
offence against the person of a woman, rather a crime
against the entire society. It is a crime against basic human
rights and also violates the most cherished fundamental
right guaranteed under Article 21 of the Constitution."
19. In the light of our above conclusion, we do not find any
merit in this appeal. The appeal fails, the same is dismissed.
20. The appellant is on bail. The bail bond stands cancelled
and he shall be taken into custody forthwith to serve out the
remaining part of sentence, if any,,.';
A
B
c
D
D
E
F
Kalpana K. Tripathy
Appeal dismissed.
G
[2013) 17 S.C.R. 678
A
M/S. LARSEN & TOUBRO LIMITED & ANR.
B
v.
STATE OF KARNATAKA & ANR.
(Civn Appeal No.8672 of 2013)
SEP,TEMBER 26, 2013
[R.M. LODHA, J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.]
Worl<s contract - Concept and meaning of - Held: The
C term "works contract" in Art.366 (29-A)(b) takes within its fold
all genre of worl<s contract and is not restricted to one specie
of contract to provide for labour and services alone - Nothing
in Art.366(29-A)(b) limits the term "worl<s contract" - Where a
contract comprises of both a worl<s contract and a transfer of
D immovable property, such contract does not denude it of its
character as worl<s contract - Constitution of India, 1950 - Art.
366(29-A)(b).
Worl<s contract - Levy of tax on goods deemed to have
E been sold in execution of a works contract - Three conditions
to be fulfilled - Held: The conditions are: a) there must be a
works contract, b) the goods should have been involved in the
execution of a works contract and c) the property in those
goods must be transferred to a third party either as goods or
in some other form - In a building contract or any contract to
F do construction, the above three things are fully met.
Works contract - Building contract - Held: Building
contracts are species of the works contract -
In the
performance of a contract for construction of building, the
G goods (chattels) like cement, concrete, steel, bricks etc. are
intended to be incorporated in the structure and even though
they lost their identity as goods but this factor does not prevent
them from being goods - The value of the goods which can
constitute the measure for the levy of the tax has to be the
H
678
M/S. LARSEN & TOUBRO LIMITED v. STATE OF
679
KARNATAKA
value of the goods at the time of incorporation of the goods Ain works even though property passes as between the
developer and the flat purchaser after incorporation of goods
- If the developer has undertaken to build for the prospective
purchaser for cash or deferred payment or a valuable
consideration pursuant to a. contract then to that extent, the
B
contract is works contract and there is deemed S<J/e ofmaterial
(goods) used in the construction of building and merely
because the builder has a right of lien in the event due
monies are not paid does not alter the character of contract
being works contract -However, activity of construction cundertaken by the developer would be works contract only
from the stage the developer 'enters into a contract with the
flat purchaser -
The value addition made to the goods
transferred after the agreement is entered into with the flat
purchaser can only be made chargeable to tax by the State
9
Government- Constitution of India, 1950 - Art. 366(29-A)(b).
Works contract - Composite contract - Held: A contract
may involve both a contract of work and labour and a contract
for sale - In such composite contract, the distinction between
contract for sale of goods and contract for work (or service) is
E
virtually diminished -
The dominant nature test has ncJ
application) - Even if the dominant intention of the contract
is not to transfer the property in goods and rather it is '
rendering of service or the ultimate transaction is transfer of
· immovable property, then also it is open to the States to levy
F
sales tax on the materials used in such contract if such
contract otherwise has elements of works contract - The
enforceability test is a/so not determinative.
Constitution of India, 1950- Art.366(29-A)(b) rlw Entry 54 G
List II of Seventh Schedule -
Taxing the sale of goods.
element in a works contract - When permissible - Held: It is
permissible even after incorporation of goods provided tax is
directed to the value of goods and does not purport to tax the
transfer of immovable property - Works contract.
H
680
SUPREME COURT REPORTS
(2013] 17 S.C.R.
A
Constitution of India, 1950 - Art. 366(29-A)(b) rlw Entry 54
List II of Seventh Schedule - Expression "tax on the sale or
purchase of goods" - Meaning of - Held: It includes a tax on
the transfer of property in goods whether as goods or in the
form other than goods involved in the execution of works
B
contract - Works contract.
Constitution of India, 1950 - Art. 366(29~A)(b) - Object
of - Held: Is. to bring transactions where essential ingredients
of 'sale' defined in the Sale '6f Goods Act, 1930 are absent
C
within the ambit of sale or purchase for the purposes of levy
of sales tax - Transfer of movable property in a works contract
is deemed to be sale even. though it may not be sale within
the meaning of the Sale of Goods Act - Sale of Goods Act,
1930 - Works contract.
D
Constitution of India, 1950- Art. 366(29-A)(b) - Transfer
of property - Legal fiction - Held: Transfer of property in
goods u/clause 29-A(b) of Art.366 is deemed to be a sale of
the goods involved in the execution of a works contract by the
p~rson making the transfer and the purchase of those goods
E , by the person to whom such transfer is made - Even in a
single and indivisible works contract, by virtue of the legal
fiction introduced by Art.366(29-A)(b), there is a deemed sale
of goods which are involved in the execution of the works
contract - Such a deemed sale has all the incidents of the
F
sale of goqds involved in the execution of a works contract
where the r;ontract is divisible into one for the sale of goods
and the other for supply ·Of labour and services - Works
contract.
Maharashtra Value Added Tax Act, 2002 - s.2(24),
G
explanation (b)(ii) - Expression "sale" in - Amended
definition of - Held: Is constitutionally valid.
H
Maharashtra Value Added Tax Rules, 2005 - r.58(1A) -
Valuation of goods - Mode of - State Government to bring
M/S. LARSEN & TOUBRO LIMITED v. STATE OF
681
KAR NAT AKA
clarity in r.58(1-A) - Subject to this, validity of r.58(1-A)
A
sustained.
The instant two sets of appeals - one from Karnataka
and the other ;from- Maharashtra, related to the concept
,
of works contract and distinction between it and a
contract of sale.
B
In regard to the appeals from Karnataka, the leading
case related to Larsen & Toubro (L& T). L& T was
engaged in property development alongwith owners of
vacant land sites in Bangalore for construction of a multiC
storeyed apartment complex. Accordingly, it entered into
agreements of sale with intende~ purchasers, which
provided that on the completion of construction, the
apartments would be handed over to the purchasers who
will also get an undivided Interest in the land. The revenue
D
authorities concerned issued provisional assessment
orders under the Karnataka Sales Tax Act, 1957 and
alongwith it also issued demand notices against L & T ·
on the g'round that it was li~ble to pay tax for
development of. projects by it.
E
F
L & T filed writ petition before the Karnataka High
Court opposing the demand .on ground that the·
development agreement was not a works contract. The
Single -Judge of the High Court noted that the
·controversy raise«i-by, the L&T was covered by the
· decision of the Supreme Court in Raheja Development
Corporation case, and, accordingly, dismissed the writ
petition holding that as L & T' had entered into an
agreement to carry out construction activity on behalf of
someone else for cash or .for·deferred pay.ment or for. any
G
· o~her valuable construction, it was carrying out works
contract.and therefore became liable to pay turnover tax
on the transfer of goods involyed in such work.contracts.
The Division Bench of the High Court concurred with the
Single Judge and dismissed the writ ·appeal.
· ·
H
682 SUPREME COURT REPORTS
[2013] 17 S.C.R.
A
In order to consider the question whether the view
taken in Raheja Development case with reference to
definition of "works contract" in Karnataka Sales Tax· Act,
1957 was legally justified, the matter was referred for
consideration by the present Larger Bench. The question
B for consideration before this Court was whether taxing
sale of goods in an agreement for sale of flat which is to
be constructed by the developer/ promoter is permissible
under the Constitution.
C
In the other set of appeals arising from the judgment
of the Bombay High Court, challenge was laid to the
constitutional validity of Section 2(24) of the Maharashtra
Value Added Tax Act, 2002 ("MVAT Act") as amended
initially by Maharashtra
1 Act XXXll of 2006 and thereafter
by Maharashtra Act XXV of 2007 and Rule 58(1A) of the
D Maharashtra Value Added Tax Rules, 2005 ("MVAT
Rules").
E
Answering the Reference and sending the matters
back to the Regular Bench for final disposal, the Court
HELD:1.1. When the agreement between the
promoter/developer and the flat purchaser is to construct
a flat and eventually sell the flat with the fraction of land,
such transaction involves the activity of construction
inasmuch as it is only when the flat is constructed then
F it can be conveyed. Therefore, there is no reason why
such activity of construction is not covered by the term
"works contract". After all, the term "works contract" is
nothing but a contract in which one of the parties is
obliged to undertake or to execute works. Such activity
G of construction has all the characteristics or elements of
works contract. The ultimate transaction between the
parties may be sale of flat but it cannot be said that the
characteristics of works contract are not involved in that
transaction. When the transaction involves the activity of
H construction, the factors such as, the flat purchaser has
MIS. LARSEN & TOUBRO LIMITED v. STATE OF
683
KARNATAKA
no control over the type and standard of the material to
A
be used in the construction of building or he does not
get any right to monitor or supervise the construction
activity or he has no say in the designing or lay-out of
the building, are not of much significance and in any case
these factors do not detract the contract being works
B
contract insofar as construction part is concerned. [Para
93] [7 40-D-G]
1.2. For sustaining the levy of tax on the goods
deemed to have been sold in execution of a works
contract, three conditions must be fulfilled: (i) there must C
be a works contract, (ii) the goods should have been
involved in the execution of a works contract, and (iii) the
property in those goods must be transferred to a third
party either as goods or in some other form. In a building
contract or any contract to do construction, the above
D
three things are fully met. In a contract to build a flat there
will necessarily be a sale of goods element. Works
contracts also include building contracts. and therefore
without any fear of contradiction it can be stated that
building contracts are species of the works contract.
E
[Para 94] [740-H; 741-A-B]
1.3. Ordinarily in the case of a works contract the
property in the goods used in the construction of the
building passes to the owner of the land on which the
F
building is constructed when the goods and materials
used are incorporated in the building. But there may be
contract to the contrary or a statute may provide
otherwise. Therefore, it cannot be said to be an absolute
proposition in law that the ownership of the goods must G
pass by way of accretion or exertion to the owner of the
immovable property to which they are affixed or upon
which the building is built. [Para 95] [741-C-E]
1.4. Value addition as a concept after Forty-sixth
Amendment to the Constitution has been accepted by
H
684
SUPREME COURT REPORTS
12013] 17 S.C.R.
A this Court in P.N.C. Construction case. While dealing with
this concept, the Court said that value addition was
important concept which had arisen after the Forty-sixth
Amendment by insertion of sub-clause (b) of clause (29A) in Article 366. It has now become possible for the
B States to levy sales tax on the value of the goods
involved in a works contract in the same way in which
the sales tax was leviable on the price of the goods in a
building contract. On account of the Forty-sixth
Amendment in the Constitution, the State Governments
c are empowered ·to levy sales tax on the contract value
which earlier was not possible. [Para 96] [741-E-G]
1.5. Where a contract comprises of both a works
contract and a transfer of immovable property, such
contract does not denude it of its character as works
D contract. Article 366(29.·A)(b) does contemplate a
situation where the goods may not be transferred in the
form of goods but may be transferred in some other form
which may even be in the form of immovable property.
[Para 97] [741-H; 742-A-B]
E
1.6. The State legislatures lack legislative power to
levy tax on the transfer of immovable property under
Entry 54 of List II of the Seventh Schedule. However, the
States do have competence to levy sal~s tax on the sale
F of goods in an agreement of sale of flat which also has a
component of a deemed sale of goods. Aspects theory
though does not allow the State legislature to entrench
upon the Union List and tax services by including the
cost of such service in the value of goods but that does
not detract the State to tax the sale of goods element
G involved in the execution ofworks·contract in a composite
contract like contract for construction of building and
sale of a flat therein. [Para 100] [743-F-H; 744-A]
1. 7. The legal position is summarised as follows:
H
MIS. LARSEN & TOUBRO LIMITED v. STATE OF
685
KARNATAKA
(i) For sustaining the levy of tax on the goods
A
deemed to have been sold in execution of a works
contract, three conditions must be fulfilled: (one) there
must be a works contract, (two) the goods should have
been involved in the execution of a works contract and
(three) the property in those goods must be transferred
B
to a third party either as goods or in some other form. (ii)
For the purposes of Article 366(29-A)(b), in a building
contract or any contract to do construction, if the
developer has received or is entitled to receive valuable
consideration, the above three things are fully met. It is c
so because in the performance of a contract for
construction of building, the goods (chattels) like cement,
concrete, steel, bricks etc. are intended to be
incorporated in the structure and even though they lost
their identity as goods but this factor does not prevent
0
them from being goods.(iii) Where a contract comprises
of both a works contract and a transfer of immovable
property, such contract does not denude it of its
character as works contract. The term "works contract"
in Article 366 (29-A)(b) takes within its fold all genre of E
works contract and is not restricted to. one specie of
contract to prov!.de for labour and services alone. Nothing
in Article 366(29-A)(b) limits the term "works contract". (iv)
· · Building contract!? are species of the works contract. (v)
A contract may involve both a contract of work and
labour and a contract for sale. In such composite
contract, the distinction between contract for sale ofgoods and contract for work (or service) is virtually
d.iminished. (vi) The dominant nature test has no·
application and the traditional decisions which have held
that the substance of the contract must be seen have lost G
their significance where transactions are of the nature
contemplated in Article 366(29-A). Even if the dominant
intention of the contract is not to transfer the p.roperty in ·
goods and rather it is rendering of service or the ultimate
H
686 SUPREME COURT REPORTS
(2013) 17 S.C.R.
A transaction is transfer of immovable property, then also
it is open to the States to levy sales tax on the materials
used in such contract if such contract otherwise has
elements of works contract. The enforceability test is also
not determinative. (vii) A transfer of property in goods
B under clause 29-A(b) of Article 366 is deemed to be a sale
of the goods involved in the execution of a works
contract by the person making the transfer and the
purchase of those goods by the person to whom such
transfer is made. (viii) Even in a single and indivisible
c works contract, by virtue of the legal fiction introduced
by Article 366(29-A)(b), there is a deemed sale of goods
which are involved in the execution of the works contract.
Such a deemed sale has all the incidents of the sale of
goods involved in the execution of a works contract
0 where the contract is divisible into one for the sale of
goods and the other for supply of labour and services.
In other words, the single and indivisible contract, now
by Forty-sixth Amendment has been brought on par with
a contract containing two separate agreements and
States have now power to levy sales tax on the value of
E the material in the execution of works contract. (ix) The
expression "tax on the sale or purchase of goods" in
Entry 54 in List II of Seventh Schedule when read with
the definition clause 29-A of Article 366 includes a tax on
the transfer of property in goods whether as goods or in
F the form other than goods involved in the execution of
works contract. (x) Article 366(29-A)(b) serves to bring
transactions where essential ingredients of 'sale' defined
in the Sale of Goods Act, 1930 are absent within the ambit
of sale or purchase for the purposes of levy of sales tax.
G In other words, .transfer of movable property in a works
contract is deemed to be sale even though it may not be
sale within the meaning of the Sale of Goods Act. (xi)
Taxing the sale of goods element in a works contract
under Article 366(29-A)(b) read with Entry 54 List II is
H permissible even after incorporation of goods provided
M/S. LARSEN & TOUBRO LIMITED v. STATE OF
687
KARNATAKA
tax is directed to the value of goods and does not purport A
to tax the transfer of immovable property. The value of
the goods which can constitute the measure for the levy
of the tax has to be the value of the goods at the time of
incorporation of the goods in works even though
property passes as between the developer and the flat
B
purchaser after incorporation of goods. [Para 101) [744E-H; 745-A-H; 745-A-H; 746-A-G]
1.8. The argument on behalf of the developers that
the flat purchaser is entitled to transfer of flat and
conveyance of fraction of land only when all installments
C
have been fully paid and that shows that the agreement
between the developer and the flat purchaser is the sale
of flat and not to appoint the developer as the contractor
of the flat purchaser for the purposes of carrying out the
construction of the flat for and on behalf of the flat D
purchaser has no merit.