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Appeals Nos. 231 and 232 of 1958. Appeal by special leave from the judgment and order dated October 21, 1957, of the Madras High Court in Writ Petitions Nos. 675 and 676 of 1957. R. Ganapathy Iyer, section B. Adityan and G. Gopalakrishnan, for the appellant. A. N. Sinha and P. K. Mukherjee, for respondent No. 1. 1958. November 24. , J. These appeals raise a question of considerable importance as to the scope of an enquiry in an election petition wherein election is called in question under section 100(1)(c) of the Representation of the People Act, 1951 (43 of 1951), on the ground that a nomination paper had been improperly ' rejected. 625 The facts are that during the general elections which were held in 1957 six persons including the,, appellant, Veluswami Thevar, the second respondent ' Chellapandian, and the fourth respondent, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli At the time of the scrutiny which was on February 1, 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government aided school, and that he was therefore disqualified under section 7, cls. (d) and (e) of the Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observed: " Sri section Arunachalam is not present at the time of scrutiny of nominations nor any authorised agent of his could take notice of the objection and file a reply. ' In view of the objection which has not been cleared by Sri section Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri section Arunachalam is disqualified under Sections 7(d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected. " The five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on March 10, 1957, the appellant who secured the largest number of votes was declared elected. On April 18, 1957, Raja Nainar, the first respondent, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was 79 626 not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, 1. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disquali fication raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out. By its order dated August 17, 1957, the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that, it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under article 226. Therein, he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a writ of certiorari be issued to quash the order in 1. A. No. 5 of 1957 and a writ of prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopals Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in these terms: " We are clearly of opinion that the enquiry before the Tribunal must be restricted to the objections which the returning officer had to consider and decide, but not necessarily to the material placed 627 before the returning officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the returning officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the returning officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returned candidate." " A further objection was also taken before the learned judges that as the decision of the Election Tribunal was open to appeal under section 116A of the Act, the court should, in exercise of its discretion under article 226, decline to entertain writ petitions against interlocutory orders. But the learned judge held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the returning officer, writs could issue under article 226. In the result, they quashed the order of the Election Tribunal in 1. A. No. 5 of 1957, and issued a writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under article 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under section 100(1)(c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer. It will be convenient at this stage to refer to the provisions of the Act hearing on this question. Section 32 of the Act provides that, "Any person maybe nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. " Under section 33(1), the candidate is to deliver to the returning officer a nomination paper completed in the 628 prescribed form and signed by the candidate and by an elector of the constituency as proposer. Section 33 (4) enacts that, " On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. " Section 35 provides inter alia that the returning officer shall cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper both of the candidate and of the proposer. Section 36, omitting what is not material, is as follows: 36. (1) " On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may, be applicable, namely 629 Articles 84, 102, 173 and 191, Part 11 of this Act, or (b) that there has been a failure to comply With any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the pro. poser on the nomination paper is not genuine. . . . . . . . . . (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case an objection is made the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same ania, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. " Then, we have section 100(1)(c), the construction of which is the main point for determination. It is as follows: 100. (1) " Subject to the provisions of subsection (2), if the Tribunal is of opinion (c) that any nomination has been improperly rejected ;. the Tribunal shall declare the election of the returned candidate to be void." Now, the whole controversy between the parties is as to what the expression " improperly rejected " in section 100(1)(c) means. According to the appellant, when the nomination paper of a candidate who is under no such disqualification as is mentioned in section 36(2) has been rejected, that is improper rejection within section 100(1)(c). Acoording to the respondent, when the 630 nomination paper of a candidate is rejected by the returning officer on the ground that he is subject to a specified disqualification, the rejection is improper, if it is found that that disqualification does not exist. If the former view is correct, then the scope of an enquiry before the Tribunal must extend to all matters which are mentioned in section 36(2), and if the latter, then it must be limited to determining whether the ground on which the returning officer has rejected the nomination is well founded. Now, to decide what the expression " improperly rejected " in section 100(1)(c) precisely imports, it is necessary to examine the relevant provisions of the Act bearing on the question and the setting of the above section therein. Under section 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act. Section 36(2) authorises the returning officer to reject any nomination paper on the ground that he is either not qualified, that is, under sections 3 to 7 of the Act, or is disqualified under the provisions referred to therein. If there are no grounds for rejecting a nomination paper under section 36(2), then it has to be accepted, and the name of the candidate is to be included in a list. Vide section 36(8). Then, we come to section 100(1)(c) and section 100(1)(d)(1), which provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination. In the context, it appears to us that the improper rejection or acceptance must have refer ence to section 36(2), and that the rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer from any of the dis qualifications mentioned in section 36(2) would be improper within section 100(1)(c), and that, likewise, acceptance of a nomination paper of a candidate who is not qualified or who is disqualified will equally be improper under s.100(1)(d)(1).Section 32 confers a substantive right on a candidate to be chosen to the legislature subject only to the limitations enacted in articles 84, 102, 173 and 191 of the Constitution and sections 3 to 7 of the Act, and sections 36 and 100 provide the machinery for the exercise and enforcement of that right. It is a sound 631 rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. Readings section 100(1)(c) in the context of the whole enactment, we think that an enquiry before the Tribunal must embrace all the matters as to qualification and disqualification mentioned in section 36(2), and that it cannot be limited to the particular ground of disqualification which was taken before the returning officer. It was contended for the respondent that the proceedings before the Tribunal are really by way of appeal against the decision of the returning officer, and that, therefore, the scope of the enquiry in the election petition must be co extensive with that before the returning officer, and must be limited to the ground taken before him. It was argued that a decision could be said to be improper only with reference to a ground which was put forward and decided in a particular manner by the returning officer, and that therefore the expression " improperly rejected " would, in its true connotation, restrict the scope of the enquiry before the Tribunal to the ground taken before the returning officer. We are unable to agree with this contention. The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under section 100(1)(c) is not in the nature of an appeal against the decision of the returning officer. An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act. The respondents have a right to file written statements by way of reply to it; issues have to be framed, and subject to the provisions of the Act, the provisions of the Code of Civil Procedure regulate the trial of the petition. All the parties have the right to adduce evidence, and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal. That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings; that is, it is open to a party to put forward all grounds in support of or negation of the claim, subject only to such limitations as may be found in the Act. 632 It should be noted in this connection that if a petition to set aside an election on the ground of improper rejection of a nomination paper is in the nature of an appeal against the decision, of the returning officer, then logically speaking, the decision of the Tribunal must be based only on the materials placed before the returning officer given with respect to the ground which was urged before him, and no fresh evidence could be admitted before the Tribunal except in accordance with 0. 41, R. 27. The learned judges in the court below, however, observe that though the enquiry before the Tribunal is restricted to the particular ground put forward before the returning officer, it is not restricted to the material placed before him, and that all evidence bearing on that ground could be adduced before the Tribunal. This, in our view, is quite correct. The enquiry which a returning officer has to make under section 36 is summary in character. He may make " such summary enquiry, if any, as he thinks necessary "; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under section 100(1)(c) and section 100(1)(d)(1) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returning officer. It was contended for the respondent that even with reference to the ground taken before the returning officer, no evidence other than what was placed before him could be brought before the Tribunal, and he relied on the following observations of the learned judges in Charanjit Lal vs Lehri Singh (1) : " Whether a nomination has been improperly rejected or not, has to be considered in relation to the state of evidence before the returning officer at the time of the scrutiny. The testimony of the returning officer shows that he rejected the nomination, because it did not appear to him that on the question of age the candidate Shri Pirthi was qualfied to stand for election ' " (1) A. I. R. 1958 punj. 633 There,, a nomination paper had been rejected by the returning officer on the ground that the candidate did,, not appear to possess the age qualification required by article 173. The correctness of this order was challenged in an election petition. Evidence was taken as to the age of the candidate in this petition, and eventually it was held that the order of the returning officer was right. In the order of rejection, the returning officer also stated: " The nomination is rejected as the age is not mentioned in the nomination paper. Neither the candidate nor the proposer or any person duly authorised on his behalf is present to testify to his age. " Now, the argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under section 36(4) of the Act. The learned judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under section 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar Mehta vs Thakur Raghuraj Singh and others (1), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer. In support of his contention that it is only the ground that is urged before the returning officer that (1) [1955] 1 S.C.R. 267. 80 634 can be raised before the Tribunal, Mr. Sinha, learned counsel for the respondent, relies on the provision in section 36(6) that when a nomination paper is rejected, the returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order of the returning officer is right or not, and by implication it confines the scope of the enquiry before the Tribunal to the ground put forward before the returning officer. This contention is, in our opinion, unsound. Now, when a nomination paper is accepted, section 36(6) does not require that any reason should be recorded therefor. If the contention of the respondent is right, it would follow that acceptance of a nomination paper can never be questioned. But that would be against section 100(1)(d)(1), and it must therefore be held that an acceptance can be questioned on all the grounds available under section 36(2). Section 100(1)(d)(1) deals with improper acceptance of a nomination paper, and if the word " improper " in that provision has reference to the matters mentioned in section 36(2), it must have the same connotation in section 100(1)(c) as well. The word " improper " which occurs in both section 100(1)(c) and section 100(1)(d)(1) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that under section 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections ? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under section 100(1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms. It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies. Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in section 36(2) It remains to deal with one more contention advanced on behalf of the respondent, and that is based on the following observations in Hari Vishnu Kamath vs Syed Ahmad Ishaque and others (1): " Under this provision R. 47(4), the Tribunal is constituted a court of appeal against the decision of the returning officer, and as such its jurisdiction must be co extensive with that of the returning officer and cannot extend further. " The argument is that if the jurisdiction of the Tribunal is co extensive with that of the returning officer, then the enquiry before it must be confined to the grounds which were urged before the returning officer. Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry under section 100(1)(c), the question still remains, what is the jurisdiction of the returning officer in hearing objections to nomination papers? (31) ; , 1132. 636 His jurisdiction is defined in section 36(2), and the Tribunal must therefore have jurisdiction to decide all the questions which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the decisions of the Election Tribunals on the question whether grounds other than those raised before the returning officer could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj vs Bhimandas (1) as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret section 100(1)(c) as not intended to alter the law as laid down in those decisions. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehta 's case (2), the election was to a double member constituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election. The decision was taken in appeal to this Court, and the point for determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell within section 100(2)(c) as it then stood and not under section 100(1)(c), and that the election of the appellant could not be declared void. (1) , 31O. (2) [19551 1 S.C.R. 267. 637 This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma vs Dev Chandra and others (1), a question was raised as to what would be " improper acceptance " within the meaning of section 100; but in the view taken by this Court, no opinion was expressed thereon. The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh vs Election Tribunal, Jaipur (2), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in section 36(2) of the Act, and that such a plea, if taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara vs Vishwanath Y. Tamaskar (3), it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it, and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not, be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti vs J. V. Narsing Rao (4) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions. As the question has also been raised as to the propriety of interfering in writ petitions under article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is (1) ; (2) [1954] 9 E.L.R.193 (3) (4) Special Appeal No. 1 Of 1957. 638 undoubted; but then, it is well settled that where there is another remedy provided, the court may properly exercise its discretion in declining to interfere under article 226. It should be remembered that under the election law as it stood prior to the amendment in1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the legislatures for which the election was held would have itself very nearly come to an end thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi and another vs Brijlal Nandlal Biyani and others (1). It is to remedy this defect that the legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under section 116 A, and its intention is ' obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under article 226 to decline to interfere with interlocutory orders. In the result, we allow the appeals, set aside the orders of the court below, and dismiss the writ petitions. filed by the respondent, with costs here and in the court below. Appeal allowed (1) [1055] 2 S.C.R. 428.

Parliament enacted In 1983 the National Oilseeds and Vegetable Oils Development Board Act, 1983 to provide for the development, under the control of the Union, of the Oilseeds Industry and the Vegetable Oils Industry and for matters connected therewith. The Act contemplated the establishment of a board called the National Oilseeds and Vegetable Oils Development Board, and the Constitution of Oilseeds and Vegetable Oils Development Fund for promoting the purposes of the Act. The Vegetable Oils Cess Act, 1983, was, simultaneously enacted to levy and collect by way of cess, for the purpose of the National Oilseeds and Vegetable Oils Development Board Act,1983, a duty of excise on vegetable oils produced in any mill in India at such rate not exceeding Rs. 5 per quintal on vegetable oil. This Cess Act was, however, repealed by Section 12 of the Cotton, ' Copra and Vegetable Oils Cess (Abolition) Act, 1987. Chapter 5 of the ' said Act carried the heading 'Collection and Payment of Arrears of Duties and Excise '. The petitioners who were manufacturers of vegetable oil, which was subject to the cess/duty of excise under Section 3 of the Cess Act, in their writ petitions to this Court questioned the validity of the levy and collection of cess for the period commencing on, 1st March, 1986 and ending with 31st March. It was contended that (1) In his Budget Speech delivered on 28.2.1986 while presenting the Budget 52 1986 87, the Union Finance Minister had stated that as an endeavour to reduce the number of cesses it had been decided to dispense with the cession cotton, copra and vegetable oils and that this statement was exemplified and implemented by way of a communication from the Directorate of Vanaspati. It is not open to the Government to go back upon the said decision and demand cess for the period subsequent to March 1, 1986, and (2) By virtue of Sub section (4) of Section 3 of the Cess Act, Rule 8 of the Central Excise Rules is attracted among other provisions of the Central Excise Act and Rules. Reading the budget proposals of the Finance Minister and the letter of the Directorate of Vanaspati together it must be held that vegetable oils have been exempted from the levy under Section 3 (1). Dismissing the Writ Petitions, this Court, HELD: 1 (a) The cess having been imposed by a Parliamentary enactment could he rendered inoperative only, by a parliamentary enactment. Such repealing enactment came only in the year 1987 with effect from April 1, 1987. (58 C) (b) The repealing Act expressly provided in Section 13 that the cess due before the date of said repeal, but not collected, shall be collected according to law", as if the Cess Act is not repealed. This provision amounts to a positive affirmation of the intention of the parliament to keep the said imposition alive and effective till the date of the repeal of the Cess Act. (58 1). ) (c) In the face of the aforesaid statutory provisions, no rights can he founded nor can the levy of the cess be said to have been dispensed with by virtue of the alleged decision referred to in the Finance Minister 's speech or on account of the letter dated August 11., 1986. (58 E) (d) The Finance Minister 's speech is not law. The Parliament may or may not accept his proposal. Indeed, in this case, it did not accept the said proposal immediately but only a %ear later. It is only from the date of the repeal that the said levy becomes inoperative. 2 (a) The cess imposed under section 3 (1) of the Cess Act. is a duty of Excise as stated in Section 3 Itself. Therefore, the Central Board of Excise and Customs was perhaps competent to grant exemption even in the case of said cess though no definite opinion on this question need be expressed since it was not debated. Suffice It to say that the Central Government cannot again be brought in under sub rule (2) of rule 8 in the place of the Central Board nor can the Directorate of Vanaspati and Vegetable Oils be equated to the Central Board of excise and customs. (58 H, 59 A) (b) The words "so far as may bell occurring In section 3 (4) of the Cess Act cannot be stretched to that extent. Above all It Is extremely doubtful whether the power of exemption conferred by rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to Wee that by virtue of the power of exemption, the very levy created by Section 3 (1) can be dispensed with. Doing so would amount to nullifying the Cess Act Itself. Nothing remains thereafter to be done under the cess Act. Even the language of Rule 8 does not warrant such extensive power; Rule 8 contemplates merely exempting of certain excisable goods from the whole or any part of the duty leviable on such goods. (59 B) 3. The power of exemption cannot be utilised to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act. (59 E) Kesavananda Bharti Sripadagalvaru and others vs State of kerala and another A.I.R. 1973 S.C. 1461, (62 G) relied on.

N: Criminal Appeal No. 30 of 1951. Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950. S.N. Mukherjee, for the appellant. B. Sen, for the respondent. December 14. The Judgment of the Court was deliv ered by FAZL ALI J. This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years ' rigorous imprisonment. The prosecution case against the appellant may be short ly stated as follows: The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other. They had a dispute about a pathway adjoin ing their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949. Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries. with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb. The police being informed, started investigation and submitted a charge sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury. He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid. When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentence 204 should not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld. The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code, he could not have been convicted under the former section. This argument however overlooks the provisions of section 237 of the Criminal Procedure Code. That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of fences the facts which can be proved will constitute, states as follows : "If . . the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. " There can be no doubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code. The case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant 's conviction under section 326 of the Penal Code was proper even in the absence of a charge. In Begu vs The King Emperor (1) the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were convicted under section 201 for causing the disappearance of evidence. Their Lordships upheld the conviction, and while referring to section 237 of the Criminal Procedure Code, they ob served: "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have (1) (1925) 52 I.A. 191, 205 been made . Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure. " The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was not allowed to do. The learned counsel for the appellant was not, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise. Only three contentions were put forward by him, these being : (1) that several material witnesses were not examined; (2.) that the appellant 's case was not placed before the jury in a fair manner; and (3) that there was no proper examination of the appel lant under section 342 of the Criminal Procedure Code. We have examined these contentions and find that they are entirely without merit. In urging his first contention, the learned counsel stated that though it was admitted that several persons have got houses to the east, north and north west of the tank where the occurrence is alleged to have taken place, they have not been examined by the prose cution. He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also not been examined. These arguments however have very little force, since there is no evidence to show that those persons had seen the occurrence, an d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi cient to support the conviction of the appellant. The Ses sions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told 'the jurors that if they thought it fit it was open to them to draw an inference against the prosecution. There can be no doubt that the jurors were 27 206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant. The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and committed indecent assault on her and was assaulted in these circumstances. This story was not sup ported by any evidence but was merely suggested in cross examination, and the Sessions Judge while referring to it in his charge to the jury, observed: ' 'If I were left alone, I would not have believed the defence version. But you are not bound to accept my opin ion, nor you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence. " The Sessions Judge undoubtedly expressed himself some what strongly with regard to the defence suggestion, but he coupled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it. The defence version was rejected by the jury, and there can be no doubt that on the materials on the record it would have been rejected by any court of fact. The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code. It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence. In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence ad duced, against him; in the second question, the Judge re ferred to the dispute about the pathway and asked the appel lant whether he had inflicted injuries on Kumad Patra; and in the third question, the appellant was asked. 207 whether he would adduce any evidence. The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examina tion of the appellant in this particular case was not ade quate. To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him. In the present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find a place in the grounds of appeal or in the statement of case filed in this court. It has nowhere been stated that the accused was in any way prejudiced, and there are no materi als before us to hold that he was or might have been preju diced. We have read the Sessions Judge 's charge to the jury, which is a very fair and full charge, and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted. The appeal accordingly fails and is dismissed. Appeal dismissed.

In these two appeals filed by the State of Andhra Pra desh against the orders of the Andhra Pradesh Administrative Tribunal, the question that arises for consideration is whether amended Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963 Is violative of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order 1975. The circumstances under which this question has arisen are stated hereinbelow. Prior to the filing of Representative Petitions Nos. 1595 and 788 of 1984 by the Respondents in the Tribunal out of which these appeals have arisen, seven persons belonging to category 5 of Branch II of the Andhra Pradesh Treasury and Accounts Subordinate Service had presented a Petition before the Andhra Pradesh Administrative Tribunal challeng ing the vires of Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963, being violative of para 5(1) of Andhra Pradesh Public Employment Order, issued by the President of India under clauses (1) & (2) of Article 371 D of the Constitution, inter alia on the ground that it made provision for promotion of clerks of the Directorate of Treasuries and Accounts and Assistants of the Finance De partment of the Secretariat to the post of Head Accountants and Sub Treasury Officer which posts had become Zonal posts after the promulgation of Presidential order. According to them only the U.D. Accountants of the feeder sources of the Zone were eligible for consi 343 deration in that particular Zone for promotion to the rank of Head Accountant and Sub Treasury Officer and not the personnel from the other Zones, including U.D. Accountants of the Directorate. The Tribunal held that by virtue of para 5(1) of the Presidential order, for purposes of promotion, Zonal Cadre had to be treated as a separate unit and consequently the posts of Head Accountants/SubTreasury Officers, could be filled up by promotion only on Zonal basis and as such Rule 3 which specified various categories of posts without refer ence to Zone as feeder posts for the purpose of promotion to the posts in question were inconsistent with para 5(1) of the Presidential order. The Tribunal therefore declared that after the promulgation of Presidential order, the provisions of Rule 3 would have to be reviewed so as to make them consistent with the provisions of the Presidential order. The Tribunal further declared that various categories of feeder posts including the posts of Assistant Section Offi cers of the Secretariat from which promotion to the posts of Head Accountants/Sub Treasury Officer could be made, Could not be made operative after the promulgation of the Presi dential order. After the aforesaid decision of the Tribunal, the State Government amended Rule 3 and gave it a retrospec tive operation w.e.f. 18.10.1975. The validity of the amended Rule was questioned by the Respondents in the context of certain Assistant Section Officers in the Finance Department (Secretariat Service) borne on Zone VII being appointed to the post of Sub Treas ury Officers borne on the Subordinate Offices under the Directorate of Treasuries and Accounts borne on Zones I to IV, by filing the said Representation Petitions before the Andhra Pradesh Administrative Tribunal. It was again con tended before the Tribunal that the amended Rule 3 was violative of the Presidential order. According to the State the amended Rule had been issued by the Governor in exercise of the power conferred on him by the Proviso to Article 309 of the Constitution and hence the validity of the Rule could not be questioned by the Petitioners. It was further con tended by the State that the earlier G.O. was not violative of the Presidential order of the provisions of Article 371 D, but even so, as it was considered by the Tribunal to be inoperative because the special provision did not explicitly state that they had been made in exercise of the authority vested in the State Government under para 5(2) of the Presi dential order, the Government had set right the lacuna by framing the amended Rule specifically in exercise of the powers conferred on Government under para 5(2) of the Presi dential order. 344 The Tribunal held that the impugned G.O. 196 did not set out under which sub para viz., sub para (a), (b) or (c) in para 5(2) of the Presidential order, the G.O. was issued and therefore the amended G.O. could not be upheld. The Tribunal also declared that there was no justification for transfer ring a person who did not belong to concerned Zone to be inducted into that Zone, as that would defeat the underlying purpose of the Presidential order. The State has, therefore, preferred these appeals. Allowing the appeals this Court, HELD: That the Tribunal has failed to construe para 5(2) of the Presidential order in its proper perspective and give full effect to the powers conferred thereunder on the State Government to make provisions contrary to the scheme of local cadres prescribed under para 5(1). The words in para 5(2) viz., "nothing in this order shall prevent the State Government from making provision for" sets out the over riding powers given to the State Government under the sub para. Such overriding powers have been given to the State Government in express terms in recognition of the principle that public interest and administrative exigencies have precedence over the promotional interests of the members belonging to local cadres and zones. [353C E] In order to make the provisions of old rule to have currency even after the Presidential order was passed, the Government issued G.O. Ms. No. 728 on 1.11.75. The Govern ment has issued G.O. Ms. No. 196 dated 17.6.83 for amending Rule 3 so as to make the Rule conform to the requirements of para 5(2) of the Presidential order. [354B, C D] The mode of recruitment and the category from which the recruitment for a service should be made are all matters which are exclusively within the domain of the Executive. It is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision failing exclusively within the purview of the Executive. [355B] The question of filling up of posts by persons belong ing to other local categories or zones is a matter of admin istrative necessity or exigency. When the rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination the policy of transfer adopted by the Government cannot be struck down by Tribunals or Court of Law. [355C] 345 Rule 3 of the amended Rule declared to be intra vires of the Presidential Order. [355E F]

Appeals Nos. 397 and 398 of 1961. Appeals by special leave from the judgment and order dated September 19, 1958, of the Andhra 249 Pradesh High Court in Tax Revision Cases Nos. 62 and 63 of 1956. B. Sen and B. P. Maheshwari, for the appellants. K. N. Rajagopal Sastri and D. Gupta for the respondents. April 19. The Judgment of the Court was delivered by HIDAYATULLAH, J. These two appeals with special leave have been filed by Messrs. G. Gilda Textile Agency, Vijayawada, against the State of Andhra Pradesh. They are directed against a common order of the High Court of Andhra Pradesh in two revisions filed under section 12 B(1) of the Madras General Sales Tax Act, 1939 (9 of 1939). The matter relates to the levy of sales tax from the appellant on its turn over for ,the years, 1954 55. and 1955 56. The appellant was an agent of several non resident principals, on whose behalf it booked orders and dealt with the indents. There were agreements between the non resident principals and the appellant, and three such agreements contained in letters have been produced as instances, and are marked Exs. A 3, A 3(a) and A 3(b). Under these agree ments, the appellant was appointed as indenting agent in Andhra Pradesh for cloth merchants, who, admittedly, resided and carried on business outside Andhra Pradesh. It was required to book orders and to forward them to the principals, receiving commission on sale of goods despatched to Andhra Pradesh. In some cases, this commission was only available on the orders booked by the appellant and in others, on all the sales effected by the principals in this territory. The appellant did business in three different ways, which have been described as three separate categories in the case. In the first 250 category, the appellant took delivery of the goods found buyers and delivered the goods to the buyers. This a category of sales was hold to be within the Madras General Sales Tax Act and the appellant, liable to the tax. The appellant does not question this part of the decision. The second category was in which it merely booked orders and forwarded them to Bombay and the principals sent the goods with the railway receipts through the bank to the purchasers in Andhra Pradesh. The connection of the appellant was Dot considered sufficient to constitute it the ',,dealer", as defined in the Madras General Sales Tax Act, and such sales were omitted from the turnover. No dispute, therefore, arises about this category. The third category related to goods sold by the outside dealers to buyers in the State. The appellant in these transactions, besides booking orders, received the railway receipts from the outside principal, handed them over to the buyers and sometimes collected and transmitted the amounts to the outside principal. The period involved is covered by the Sales Tax Validation Act, 1956 (7 of 1956), and no question under the Constitution arises. The only question is whether the appellant comes within section 14 A of the Madras General Sales Tax Act, and it liable to tax Act, as a dealer. It may be pointed out that the appellant did not produce any correspondence between it and the non resident principals or the covering letters which must have been sent along with the railway receipts. The Tribunal under the Madras General Sales Tax Act, therefore, came to the conclusion that the railway receipts which had been sent, must have been endorsed by the sellers either in favour of the appellant or in blank, to enable the appellant to claim the goods from the railway or to negotiate them. The Tribunal, before, hold that the appellant 251 must be deemed to be a "dealer" under s.14 A and thus liable to tax under that section. Section 14 A of the Act reads as follows "In the case of any person carrying on the business of buying and selling goods in the State but residing outside it (hereinafter in this section referred to as a 'non resident '), the provisions of this Act shall apply subject to the following modifications and additions, namely: (i) In respect of the business of the non resident, his agent residing in the State shall be deemed to be the dealer. (ii) The agent of a non resident shall be assessed to tax or taxes under this Act at the rate or rates leviable thereunder in respect of the business of such non resident in which the agent is concerned, irrespective of the amount of the turn over of such business being less than the minimum specified in Section 3, sub section (3). (iii) Without prejudice to his other rights any agent of a non resident who is assessed under this Act in respect of the business of such non resident may retain out of any moneys payable to the non resident by the agent, a sum equal to the amount of the tax or taxes assessed on or paid by the agent. (iv) Where no tax would have been payable by the non resident in respect of this business in the State by reason of the turnover there of being less 252 than the minimum specified in Section 3, sub section (3), he shall be entitled to have the amount of the tax or taxes paid by his agent refunded to him or application made to the assessing authority concerned, or where more than one such authority is concerned, to such one of the authorities as may be authorised in this behalf by the State Government by general or special order. (v) Such application shall be made with in twelve months from the end of the year in which payment was made by or on behalf of the non resident of the tax or taxes or any part thereof. " The section makes the agent liable fictionally as a dealer in the circumstances laid down in the section, viz., that be is acting on behalf of a nonresident person doing business of buying or selling goods in the State. The agent is assessed to tax under the Act in respect of the business of such non resident in which the a cut is concerned, irrespective of whether the turnover of such business is more or less than the minimum prescribed in the Act. It is contended that the first thing to decide is whether the non resident could be said to be carrying on the business of selling in Andhra Pradesh in the circumstances of this case, and reliance is placed upon a decision of this Court reported in Mahadayal Premchandra vs Commercial Tax Officer, Calcutta (1) In that case, this Court was called upon to consider the Bengal Finance (Sales Tax) Act, 1941 (6 of 1941). There also, the agent was sought to be made liable in respect of the sale of goods belonging to non resident (1) , 253 principal under a section which may be taken to be in pari materia with the section, we are considering. This Court held that the Kanpur Mille, whose agent the appellant in the case was, were not carrying on any business of selling goods in West Bengal and were selling goods in Kanpur and despatching them to West Bengal for consumption. This part of the judgment is called in aid to show that the first condition of the liability of the agent in the present case under the Madras General Sales Tax Act is not fulfilled. Unfortunately for the appellant, in this case there is a clear finding by the High Court that the non resident principals were carrying on the business of selling in Andhra Pradesh. The High Court has observed that if the non resident principals took out railway receipts in their own Dames, thereby manifesting their intention to remain the owners and to retain. the control over the goods, the sales must be taken to have been completed or to have taken place in the State of Andhra Pradesh. From this, the High Court came to the conclusion that the non resident principals were doing business of selling in Andhra Pradesh. The High Court pointed out that inasmuch as the appellant after securing the orders received the railway receipts from the sellers and banded them over to the buyers and sometimes collected the consideration and transmitted the same to the sellers, the sales thus resulting must be hold to have taken place in the State either on behalf of the appellant or on behalf of the non resident principals, and whichever view be correct, the appellant as agent was liable as a dealer within the Act. Either it was a dealer itself, or it became a dealer by the fiction created by section 14 A, since the non resident principals had done business in each case in the State of Andhra Pradesh. The case of this Court on which reliance has been placed, turned on its own facts, and a 254 finding there cannot be used in the present case, because no finding on the facts of one case can be applied to the facts of another. Sub section (2) of section 14 A was said to be connected with the opening part, and it was argued that the tax was leviable on the turnover relating to the business of a nonresident, which was carried on by the non resident in the taxable territory. In our opinion, once the finding is given that the non resident principal carried on the business of selling in Andhra Pradesh and the appellant was the admitted agent through whom this business was carried on, the rest follows without any difficulty. The High Court, in our opinion, was, therefore, right in upholding the levy of the tax from the appellant, in view of our decision that the appellant came within the four corners of section 14 A in relation to the transactions disclosed in the last category. The appeals fail, and are dismissed with costs, one hearing fee. Appeals dismissed.

The appellant was an agent in Andhra Pradesh of certain non resident principals who were dealers in cloth. received commission in some cases on the orders booked and in others on all the sales effected by the principals in the terri tory. One kind of transactions it carried on in course of its business related to goods sold by its principal to buyers in the State. The appellant in these transactions, besides booking orders, received the railway receipts from the outside principals, handed them order to the buyers and some times collected and transmitted the amount to the outside principals. The appellant was assessed to sales tax on its turnover for the years 1954 55 and 1955 56. The question was whether in carrying on such transactions the appellant was a dealer within section 14A of the Madras General Sales Tax Act, 1939. The Tribunal held that the appellant was such a dealer and the High Court in affirming that decision held that the non resident principals were doing the business of selling in the State and the sales in question were by the appellant either on behalf the principal or on its own behalf and that the appellant was in either cass liable. Held, that the High Court had taken the right view the matter. Section 14A of the Act made the agent fictionally liable as a dealer in the circumstances as specified by it, and the agent was liable irrespective of whether the turn over of its business was more or less than the minimum prescribed by the Act. Mahadayal Premchandra vs Commercial Tax Officer Calcutta, , distinguished.

N: Criminal Appeal No. 475 of 1983. From the Judgment and order dated 21/22 4 1982 of the Bombay High Court in Crl. Appln. No. 478 of 1980. A.K. Sanghi for the Appellant. A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by 812 SHARMA, J. The point involved in this appeal is whether a Hindu woman who is married after coming into force of the to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The appellant Smt. Yamunabai was factually married to respondent No. 1 Anantrao Shivram Adhav by observance of rites under Hindu Law in June, 1974. Anantrao had earlier married one Smt. Lilabai who was alive and the marriage was subsisting in 1974. The appellant lived with the respondent No. 1 for a week and there after left the house alleging ill treatment. She made an application for maintenance in 1976 which was dismissed. The matter was taken to the Bombay High Court, where the case was heard by a Full Bench, and was decided against the appellant by the impugned judgment. Section 125 of the Code by sub section (1) which reads as follows clothes the "wife" with the right to receive maintenance is a n summary proceeding under the Code: 125(1). If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: 813 Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means. Explanation. For the purposes of this chapter: (a) "minor" means a person who, under the provisions of the (9 of 1875), is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. " According to the respondent the term 'wife ' used in the section means only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the , she is not entitled to any relief under the section. For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the (hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms: " 11. Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. " Clause (1)(i) of section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in section 4, no aid can be taken of the earlier 814 Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as section 12 is concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of section S(1)(i) of the Act. Sub section (2) of section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of section 16, which is quoted below, also throw light on this aspect: " 16. Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding the decree of nullity. (3) Nothing contained in sub section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such 815 rights by reason of his not being the legitimate child of his parents. (Emphasis added). Sub section (1), by using the words underlined above clearly, implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by section 12, sub section (2) refers to a decree of nullity as an essential condition and sub section (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception. The question, then arises as to whether the expression 'wife used in section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by section 11 of the Act. The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context. It has been contended on behalf of the appellant that the term 'wife ' in section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed Khan vs Shah Bano Beghum, [1985 ] 3 SCR 844, it was argued that the personal law of the parties to a proceeding under section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce, but a divorcee has been held to be entitled to the benefits of the section, it was urged, and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid, the argument is not well founded. A divorcee is included within the section on account of clause (b) of the Explanation. The position under the corresponding section 488 of the Code of 1898 was different. A divorcee could 816 not avail of the summary remedy. The wife 's right to maintenance depended upon the continuance of her married status. It was pointed out in Shah Bano 's case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry, and that was achieved by including clause (b) of the Explanation. Unfortunately for the appellant no corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano 's case does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to women not lawfully married. Lastly it was urged that the appellant was not informed about the respondent 's marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party. 817 8. We therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of section 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund. N.P.V. Appeal dismissed.

% The appellant was married to the first respondent by observance of rites under Hindu Law in June, 1974, while the first respondent 's earlier marriage was subsisting and the wife was alive. After living with the first respondent for a week, she left the house alleging ill treatment. She filed an application for maintenance in 1976, which was dismissed by the trial Court. Her appeal to the High Court was dismissed by a Full Bench. In the appeal to this Court it was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom and in any event, the marriage would be voidable under section 12 of the , that the term "wife" in section 125 of the Cr. P.C., 1973 should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married, in fact, by performance of necessary rites or following the procedure laid down under the law, that the personal law of the parties to a proceeding under section 125 of the Cr. P.C. should be excluded from consideration, and since a divorcee has been held to be entitled to the benefits of the section, a woman in the same position as the appellant should also be brought within the sweep of the section, and since the appellant was not informed about the respondent 's earlier marriage, when she married him, who treated her as his wife, her prayer for maintenance should be allowed. 810 It was contended on behalf of the respondent that the term "wife" used in Section 125 of the Cr. P.C. meant only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the the appellant was not entitled to any relief under the section. Dismissing the appeal, ^ HELD: l. The marriage of a woman in accordance with the Hindu rites with a man having legal spouse, after coming into force of the is a complete nullity in the eye of law and she is not entitled to the benefit of Sec. 125 of the Criminal Procedure Code, 1973. [813D] 2.1 Clause (1)(i) of section 5 of the , lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage, and therefore a marriage in contravention of this condition is null and void, under section 11 of the Act. [813G] 2.2 By reason of the overriding effect of the Act, as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law, inconsistent with any provisions of the Act. Section 12 is confined to other categories of marriages, and is not applicable to one solemnized in violation of section 5(1)(i) of the Act. Cases covered under section 12 are not void ab initio. [813H; 814A B] 2.3 The marriage covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. [814B C] The marriage of the appellant must, therefore, be treated as null and void from its verv inception. [815C] 3.1 Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub section (l)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. [815E] 811 3.2 It is only where an applicant establishes her status or relationship with reference to the Personal Law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the Personal Law. [816D E] 3.3 For the purpose of extending the benefit of the section to a divorced woman, and an illegitimate child, the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married. [816F] 3.4 The word "wife" is not defined in the Cr. P.C. except indicating in the Explanation to section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee, unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b). A divorcee is included in the section on account of cl. (b) of the Explanation. [815D E] 3.5 Principle of estoppel cannot be relied upon to defeat the provisions of the Act. So far as the first respondent treating her as wife is concerned, it is of no avail, as the issue has to be settled under the law. It is the intention of the legislature, which is relevant, and not the attitude of the parties. The prayer of the appellant for maintenance cannot, therefore, be allowed even if the appellant was not informed, at the time of her marriage to the respondent, about his earlier marriage. [816G H] Mohd. Ahmed Khan vs Skah Bano Beghum, ; , distinguished.

Appeal No. 1121 of 1970. Appeal by special leave from the judgment and order dated ' April 24, 1969 of the Bombay High Court in Appeal No. 2 of 1967. Niren Den, Attorney General, M. C. Bhandara, P. C Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain., for the appellants. section V. Gupte, section J. Sarabjee, B. R. Agarwala and A. J. Rana,, for respondent No. 1. Sharad Monohar and Urmila Sirur, for the interveners. J. This is an appeal by special leave from an Order of the High Court of Bombay dated 24th April, 1969 in Appeal No. 2 of 1967, substantially confirming the order passed by a single Judge of that Court in Writ Petition No. 474 of 1965. The appellants before this Court are the Bombay Municipal Corporation and the Municipal Commissioner of Bombay, and the respondents are the owners of 41 final plots Nos. 106 to 116 and 118 to 147 under the Bombay Town Planning Scheme, Santacruz VI. The area under the Town Planning Scheme, with which we are now concerned, originally fell within the municipal limits of the Bandra Municipal Committee. That Committee, by a resolution dated 15th June, 1948, declared its intention to frame a Town Planning Scheme under section 9(1) of the Town Planning Act, 1915. Thereafter, the Municipal Committee was abolished and the area of that municipality was absorbed within the limits of the Bombay Municipal Corporation. The Corporation, which. for the purpose of the Act, now became the local authority. applied to the Government, and on 7th May, 1951, the Government of Bombay sanctioned the making of the Scheme. On 30th April, 1963, a draft scheme was, prepared and published as required by the Act and it was duly sanctioned by the Government on 6th May, 1954. On 17th August, 1954, an Arbitrator was appointed to finalize the scheme and the Arbitrator formulated the final Scheme and published the same in the, Official Gazette, forwarding, at the same time, the Scheme to the President of the Tribunal appointed under section 32 of the Act. In the meantime, the Town Planning Act, 1915 was replaced by the Town Planning Act, 1954 which came into force on 1st April, 1957. Under section 90 the new Act, the final Scheme already formulated was adopted for continuance and implementation. Finally, on 21st August, 1958, the final Scheme was sanctioned by the Government which directed that the Scheme should come into force from 1st January, 1959. The Scheme, as already stated, was known as the Bombay Town Planning Scheme, Santacruz No. VI and covered an area .of about 160 acres divided into two parts by the Chodbunder Road which ran from south to north. We are not concerned here with the western part. We are concerned with the eastern part, the total area of which was about 54 acres. A part of this area belonged to the N. J. Wadia Trust. In a Trust Petition made to the High Court, a Receiver was appointed on 8th February. 1948 of this trust property. It appears that unauthorised huts, sheds and stables had been built in this area and the whole of it 411 was full of slums, the removal of which was one of the objects of introducing the Town Planning Scheme. As the Arbitrator has stated in his Final Scheme, : "The Final Scheme as now drawn up provides for the construction of new roads with necessary storm water drains on the sides of the roads, certain public sites within the area such as School, Playground, Market, Maternity Home etc. The construction of new roads, the provision of public sites and the removal of slums will provide for the development of this part of the Suburb on proper lines. " In pursuance of the Scheme, the part of land, which belonged to N. J. Wadia Trust and which was now in the possession of the Receiver, became a part of the Scheme and, under the Scheme, a number of final plots were allotted to the Receiver. On 31st July, 1962, the Receiver transferred a total area of 69,625 sq. yards comprised in 41 final plots being Nos. 106 to 116 and 118 to 147 to respondents 1 to 3 and one Cardi. Cardi sold his plots in due course to respondents 4 and 5. So, between the five respondents, they became the owners of the above 41 final plots. As already noted, the Scheme came into force on 1st January, 1959 and, though, under the Scheme, a period of 2 to 3 years had been allowed for the purpose of implementing the Scheme, no action was taken by the Corporation, perhaps due to the resistance offered by the slum dwellers. The respondents, from whom the betterment charges, etc. were being recovered by the Corporation, called upon the Corporation to implement the Scheme by removing slums, sheds and temporary structures and also to provide roads and drains as directed in the Scheme. The Corporation, however, remained inactive and, hence, respondents 1 to 3 filed Writ Petition No. 474 of 1965 on the Original Side of the High Court on 13th October, 1965.By this petition, respondents 1 3 prayed to the Court : (1) to issue a writ of mandamus or a writ in the nature of mandamus against the appellants directing them to construct the roads and drains as indicated in the Town Planning Scheme and to complete the same for use within such time as may be fixed by the Court, and (2)to issue a writ of mandamus or any other appropriate writ directing the appellants to remove all the huts. sheds, stables and temporary structures from the 41 plots referred to above. 412 The learned Judge held that, under the Town Planning Act and the Scheme, it was the primary responsibility of the Corporation, which was the local authority, to implement the Scheme and, accordingly, the writs as prayed were substantially granted. In appeal, the Appellate Bench of the High Court confirmed the order of the learned Judge with only minor variations. Hence, the present appeal. The controversy between the parties has been narrowed down in this Court. The learned Attorney General, who appeared on behalf of the appellants, did not dispute that, so far as the roads and drains are concerned, it was the primary obligation of the Municipal Corporation to provide the same in accordance with the Scheme. He also agreed that, if there were any unauthorised structures, huts, sheds and the like on any part of the plots which vested in the Corporation for a public purpose, the same were liable to be removed by the Corporation. His chief contention, however, is that the Corporation owed no duty to remove the un authorised structures situated in the private plots of the owners who, in his submission, were solely responsible to remove them. In any event, he further submitted, since the petitioners and their predecessors had authorised these structures and collected rent from the owners or occupants of these structures, a writ of mandamus at their instance should not, in the discretion of the Court, be granted. The point of substance in this appeal is whether the Munici pal Corporation, as the local authority under the Act owed a duty to remove the unauthorised structure, even though those structures were on private final plots of the respondents. That the respondents could, by having recourse to law, eject the slum dwellers and remove the huts and structures would no, be a relevant consideration if, under the Act and the Scheme, the duty was imposed on the local authority. The Scheme had been framed with a view to clear the area of slums. In fact, Note 11 attached to the Redistribution Statement under the Scheme directs that "all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, shall be removed within one year from the date the Final Scheme comes into force. Persons thus dishoused will be given a preference in the allotment of land or accommodation in Final Plot No. 16. " We will have occasion to consider this Note No. 11 at a later stage; but what is to be noted now is that the slums were to be cleared and the dishoused persons were to be accommodated in final plot No. 16 which was specifically allotted to the Corporation. Before turning to the provisions of the Act and the Scheme for the determination of the issue before us, it may be necessary 413 to note here that the writ issued by the learned single Judge with regard to these huts, sheds and structures was clarified in appeal by limiting the writ as follows: "that the respondents 1 and 2 (the present appellants) do remove within one year from today all unauthorised huts, sheds, stables and other temporary structures standing and lying on the petitioners ' (the present respondents) said forty one final plots. " We asked Mr. Gupte, learned counsel for the respondents, as to what exactly was meant by the term "unauthorised" whether it meant not authorised by the owners of the plots or not authorised by the Municipal Corporation or something else. He informed us that the relief that he really wanted was in terms of section 55 of the Act which gives the power to the local authority to remove, pull down or alter any building or other work which contravenes the Town Planning Scheme. If any of the structures or huts and sheds, etc. which were situated in these 41 plots did not contravene the Town Planning Scheme, he did not and could not ask for a writ of mandamus for the removal of the same. In view of this submission, the controversy is further narrowed down and the only question. with which we are now concerned, is whether the Corporation is bound under the law to remove such of the structures, sheds and huts situated in the respondents ' plots in so far as. they contravene the Town Planning Scheme. In our opinion, the Corporation is so bound. It is not necessary to go through the several provisions of the Town Planning Act. There can be no doubt that the Corporation, as the local authority, is wholly responsible for the preparation and implementation of every development plan. The preamble shows that the Town Planning Act, 1954, which was intended to be a consolidating and amending Act relating to town planning, was enacted with a view to ensure that Town Planning Schemes are made in a proper manner and their execution is made effective. It was, therefore, necessary to provide that the local authority shall prepare a development plan for the entire area within its jurisdiction. By section 3 of the Act, the local authority is required to carry out a survey of the area within its jurisdiction within a certain time and publish a development plan. In due course, such a development plan is sanctioned by the Government; but, in the meantime, by section 12 of the Act, stringent restrictions are placed on the property owners in the matter of development of or construction on their private properties as soon as the local authority declares its intention to prepare a development plan. After the development plan is finally sanctioned by the Government, the next step is for the local authority to make one or more Town Planning Schemes as provided in section 18. The 8 LI340Sup. CI/71 414 rest or the Act is mostly concerned with the preparation of the Town Planning Schemes and section 2 9 (1) (a) provides that, after the local authority has declared its intention to make a scheme under section 22, no person shall, within the area included in the scheme, erect or proceed with any building or work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of a building, a compound wall or any drainage work or remove any earth, stone or material, or subdivide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission of the local authority. These restrictions, though very stringent, are obviously in the interest of the preparation of the. Town Planning Scheme, because, if structures come up when the scheme is being prepared, the whole object of town planning will be frustrated. The Arbitrator appointed under the Scheme has to lay out the roads, the drains and make provision for public places such as gardens, hospitals and the like and, if private owners start erecting structures of more or less permanent nature, the cost of the Scheme might become prohibitive and the Scheme itself will flounder. Such is the importance of the Final Scheme as sanctioned by the Government that, under section 51(3), the Town Planning Scheme has the same effect as if it were enacted in the Act. The Scheme naturally deals with the disposition of the land in the whole area. Titles are displaced and regulations are made with directions as to how the whole of the Scheme is to be implemented. The Arbitrator appointed under the Scheme has to lay out enacted in the Act. Against this background, we have to determine the question in issue before us. The important provisions, bearing upon the controversy, are sections 53, 54 and 55 of the Act. Section 53 provides : "On the day on which the final scheme comes into force, (a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer. " It will be seen that all lands in the area which is subject to the Scheme, to whomsoever they might have originally belonged, 415 would absolutely vest in the local authority if, under the Scheme, the same are allotted to the local authority. As a necessary corollary to this, all rights in the original plots of the private owners would determine and if, in the Scheme, reconstituted or final plots are allotted to them, the same shall become subject to the rights settled by the Town Planning Officer in the Final Scheme. The original plots of one owner might completely disappear, being allotted to the local authority for a public purpose. Such a private owner may be paid compensation or a reconstituted plot in some other place may be allotted to him. This reconstituted plot may be also made subject to certain other rights in favour of others as determined by the Town Planning Officer. In other cases, the original plot of the owner may be substantially cut down and he may be compensated elsewhere by being allotted a smaller or a bigger piece of land in a reconstituted plot. The learned Attorney General pointed out that, so far as the present case is concerned, the final plots coincide with the original plots of the private owners. That may be so; but that consideration is irrelevant for a proper construction of the statute. It is inherent in every town planning scheme that titles are liable to be displaced and an owner may get a reconstituted plot which belonged, prior to the Final Scheme, to some other owner. In such a case, if the original plot belonging to 'A ' was not encumbered by any. unauthorised huts and 'A ' is allotted in the Scheme a reconstituted plot of another, encumbered or littered over with unauthorised sheds and huts, would it be just to say that 'A ', who is to be put into possession under the Scheme, of the reconstituted plot, should take legal action for the ejectment of the hutment dwellers ? For aught we know he may be non suited on the ground of limitation or adverse possession. In any case, the Scheme will on the one hand, put an innocent owner to undeserved trouble and, on the other, not achieve the object of removing the hutment dwellers as speedily as possible, thus frustrating the very object of town planning. It is not as if such a situation was not visualised by the Legislature, because the very next section, viz., section 54 gives ample powers to the local authority to do the needful. That section says : "On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority. " All that the local authority has to see for the purpose of section 54 is whether any person is occupying any land in disregard of the rights determined under the final scheme and, if he does so, he 416 is to be summarily evicted by the local authority. Section 55 is more explicit on the question. Sub section (1) is as follows: "(1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme (a)remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with; (b) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the local authority that delay in the execution of the work would prejudice the efficient operation of the scheme. " Sub clause (a) of the sub section gives the local authority power to remove, pull down or alter any building or other work in the whole of the area included in the scheme if such building or work contravenes the scheme, or if, in the erection or carrying out of the building or work, the provision of the scheme has not been complied with. In short, every building or work, which is in contravention of the Town Planning Scheme, wherever it may be in the whole of the area under the Scheme, could be removed pulled down or altered by the local authority which alone is named as the authority for that purpose. For example, the Scheme in this case, by its Note 11, requires that all huts, sheds, stables and such other temporary structures, which do not conform with the Scheme, are liable to be removed within one year of the Scheme which is regarded under section 51(3) as part of the Act. If the owner or occupant of the temporary structure does not remove the structure within one year, the local authority is empowered to do that. Sub clause (b) takes care of any work which, under the Scheme, any private person is liable to execute in a certain time. If there is delay in the execution of the work, the local authority is given the power to execute the work. The question then would arise : at whose cost this work is to be executed ? For that, provision is made in sub section (2) which is as follows: "(2) Any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act. " 417 The expenses incurred by the local authority in this connection are recoverable from the person in default, viz., the person indicated in the Scheme and who has defaulted in executing the work. To make sure that the expenses are recovered, sub .S. (2) makes them recoverable not merely from the p erson in default, but also from the owner of the plot. Disputes are likely to arise whether any building or work contravenes a Town Planning Scheme and, so, provision is made for the same in sub section (3) which is as follows : " (3) If any question arises as to whether any building or work contravenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, it shall be referred to the State Government ' or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be shall be final and conclusive and binding on all persons. " It will, thus, be seen that section 55 provides a self contained code by which buildings and works situated in the whole of the area under the Scheme are liable to be removed or pulled down by the local authority if those buildings or works contravene the Town Planning Scheme. A proper implementation of the Scheme would undoubtedly entail considerable cost, but provision for the same is made in Chapter VIII of the Act, section 66 of which provides for the recovery of what are commonly known as betterment charges. The costs of the scheme are to be met wholly or in part by a contribution to be levied by the local authority for each plot included in the Final Scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. The whole scheme or the Act, therefore, and especially sections 53 to 55 leave no doubt that it is the primary duty of the local authority to remove all such buildings and works in the whole of the area which contravene the Town Planning Scheme. The Scheme and the regulations made thereunder must be read as supplemental to the Act and, when that is done, there is no room for any doubt whatsoever that the local authority is entirely responsible for removing the huts, sheds, stables and other temporary structures which contravene the Town Planning Scheme. The Scheme gives a statement of works to be constructed under the Scheme which comprises a number of roads and the drainage system. The Scheme then specifies which final plots under the Scheme are reserved for public or municipal purposes. In the section dealing with the regulations controlling the development of the area under the Scheme, the various final plots are 418 mentioned and directions have been given as to how they are to be utilised. Regulation 6 is as follows : "No hut or shed whether for residential user or otherwise, or temporary moveable shops on wheels or such other temporary structures shall be allowed within the area of the Scheme. " It is possible to construe this regulation as prospective in operation, because regulation 9 provides that any person contravening any of the aforesaid regulations or any of the provisions of the Scheme is liable to be prosecuted and fined. As a part of the Scheme, there is a Redistribution and Valuation Statement which shows which are the original plots, who were the owners thereof, whether those plots were encumbered or leased out, who the mortgagees and lessees were, what is the number of the reconstituted or the final plot allotted to such owners, what contributions have to be made by the owners and what additions or deductions are to be taken into account while deciding the contributions. In the case of some of the final plots, certain rights are given and liabilities imposed and, in suitable cases, compensation also is directed to be paid. And, then, to this Redistribution and Valuation Statement, eleven Notes are appended which are important Note 1 says that all rights of mortgagors or mortgagees if any, existing in the original plots are transferred to their corresponding final plots. Note 2 deals with the rights of lessors and lessees in the original plots. By Note 3, all rights of passage hitherto existing are extinguished. By Note 4, agreements in respect of original plots are transferred to the final plots. By Note 5, the tenures of all original plots are transferred to the corresponding final plots. Note 6 permits the original plot owners to remove their detachable material on the plot if they are deprived of the same. They are required to remove their wire fencing, compound wall, sheds, huts or other structures. They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme. This permission under Note 6 has been given not because the local authority has no power to remove wire fencing, huts, sheds, etc.; that power is there as already shown under section 55. But this is a concession made in favour of the owner. Since the owner is required to remove himself from this plot, he is permitted to take away whatever material he could easily remove. And, then, Note 11, to which reference has already been made, provides that all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, are required to be removed within one year from the date the final Scheme comes into force. The Note refers not merely to huts, 419 sheds, stables which do not conform to the regulations of the Scheme, but also to all huts, sheds, stables and such other temporary Structures. Whosoever the owner or the occupant of the same might be, he is required to remove the same within one year from the date the Final Scheme comes into force. This is an important regulatory provision which has the effect as if enacted in the Act. If the owner or the occupant of these huts, sheds and stables does not remove the same within one year from the date this final Scheme comes into force, he would be contravening the provisions of the Scheme and, thereupon, the local authority will have the power under section 5 5 (1) (a) to remove or pull down these huts, sheds, stables, etc. Note 11 has taken due note of the fact that, if the huts, sheds, stables, etc. are demolished, the owners or occupants thereof will become dishoused. Hence, further provision is made that persons thus dishoused will be given preference in the allotment of land or accommodation in Final Plot No. 16 allotted to the Corporation. In other words, it is implicit in this Note that the Corporation may not hesitate to pull down or remove these huts and sheds, etc., because provision is already made for allotment of land in the Corporation 's Plot. The Note, therefore, indirectly establishes that it is the primary duty of the Corporation as the local authority to remove all offending huts, sheds, stables and temporary structures in the whole area under the Scheme and not merely from those areas which are allotted to the Corporation under the Scheme. Our attention was invited by the learned Attorney General to the Maharashtra Regional and Town Planning Act, 1966 which came into force on 11 th January, 1967. The Act came into force when the present litigation was pending in the High Court; but it does not appear that any reference was made to the provisions of that Act. It is a more comprehensive legislation with regard to development and planning than the Bombay Town Planning Act, 1954 to the provisions of which we have already made a reference. By section 165(1) of the Maharashtra Regional and Town Planning Act, 1966, the Bombay Town Planning Act, 1954 is repealed; but, by virtue of sub section (2) of section 165, all Schemes finalised under the Bombay Town Planning Act, 1954 are deemed to have been framed under the corresponding provisions of this Act and the provisions of this Act shall have effect in relation thereto. The more important provisions of the Bombay Town Planning Act, 1954, to which a reference has been made by us above. were sections 53, 54 and 55. The corresponding provisions in the new Act are sections 88, 89 and 90. Section 53 consisted of two clauses (a) and (b). They are the same as the first two clauses (a) and (b) of the corresponding section 88. One% more clause (c) is added which provides that the Planning Authority shall hand over possession of the final plots to the owners to 420 whom they are allotted in the final Scheme. The Planning Authority is the same as the local authority under the Bombay Town Planning Act, 1954 in the present case, the Bombay Municipal Corporation. There was no specific provision in section 53 directing the local authority to hand over possession of the , 'final plots; but, in our opinion, that was implicit in the Scheme when the original plots were reconstituted and the reconstituted plots were allotted to the owners of the original plots. Clause (c) of section 88, therefore, merely clarifies what was implicit in section 53 of the old Act. Section 54 of the old Act corresponds to sub section (1) of section 89 of the new Act. Sub section (2) of section 89 is a new provision which makes it obligatory upon the Commissioner of Police and the District Magistrate to assist the Planning Authority in evicting per sons from the final plots when there is unlawful opposition to the same. Section 55 of the old Act corresponds to section 90 of the new Act and is practically the same in content. In our opinion, therefore, there is nothing in the new Act which requires us. to reconsider the above finding. It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the, Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has, been long held that, where a statute imposes a duty the performance or non performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsbury 's Laws of England, Third Edition, Vol. II, p. 90). It was, however, contended by the learned Attorny General that, after all, a writ of mandamus is not a writ of course or a writ of right but is, as a rule, a matter for the discretion of the court. That is undoubtedly the case. It is pointed out by Lord Hatherley in The Queen vs The Church Wardens of All Saints, Wigan and Others(1), that upon a prerogative writ there may arise many matters of discretion which may induce the Judges to withhold the grant of it matters connected with delay, or possibly with the conduct of the parties; but, as further pointed out by his Lordship, when the Judges have exercised their discretion in directing that which is in itself lawful to be done, no other Court can question that discretion in so directing. In the present case, the High (1) 421 Court has exercised its discretion in directing the issue of the writ and this Court, in an appeal by special leave, will not ordinarily question that discretion. In The Queen vs Garland and Another(1) which was cited by the learned Attorney General before us, mandamus was refused practically on the ground that the petitioners therein had not come before the Court with clean hands. In that case, the trustee, , proved the will of the testator, but not claim themselves to be admitted to the copyholds, though they were bound to do so, and called upon the lord of the manor to admit the infant heir by his guardians. The lord refused. If the trustees had done their duty by admitting to the copyholds, the lord would have been entitled to a double fine instead of a single fine on the admittance of the heir. In these circumstances, the Court refused a mandamus to compel the lord to admit the heir as, in the opinion of the Court, the effect of granting it would be to enable the trustees to evade payment of a double fine, and to commit a breach of trust by not acquiring themselves the legal estate in the copyholds. Nothing of that nature to disqualify the respondents in this case for a writ in their favour has been pointed out to us. The only submission of the learned Attorney General is that so far as the huts, sheds, etc., which are within the final plots of the respondents are concerned, they must be 'Presumed to be therewith the permission of the respondents or their predecessors in title, specially when it is known that some fee, compensation or rent was recovered by them from the owners or occupants of these huts and sheds. It is not the case that the petitioners, while, on the one hand, asking for a mandamus against the Corporation, are resisting the enforcement of the Scheme through the owners and occupants of the slums on the other. If the owners of these final plots merely recovered some amounts from the hutment dwellers by way of compensation or rent, that act cannot be regarded as importing any disqualification for the purposes of mandamus. After all, their ' land was being used by others and, perhaps, the respondents are also liable to pay local taxes. We have not been shown one provision in the whole of the Act which requires the owners of the plots to take any action against the hutment dwellers. The Scheme came into force in 1959 and it is an admitted fact that, till 1964, nothing at all was done by the Corporation to implement the Scheme. The respondents served notices on the Corporation to enforce the Scheme, but, for one reason or the other, the Corporation merely stalled effective action. We do not, therefore, think any adequate reasons have been given for refusing the writ. In the result, the appeal is liable to be dismissed with only the following modification in the Appellate Court 's Order: (1) 422 For the following words: "that the respondents 1 and 2 do remove within one year from today all unauthorised huts, sheds, stables and other temporary structures standing and lying on the petitioners ' said forty one final plots" the following should be substituted : "that the respondents 1 and 2 do remove within one year from today all such huts, sheds, stables and other temporary structures standing or lying on the petitioners ' said forty one final plots as contravene the Scheme or in the erection or carrying out of which any provision of the Scheme has not been complied with. " Subject to this modification in the Order, the appeal is dismissed with costs. Since a stay had been granted by this Court, it would be necessary to allow reasonable time for compliance by the appellants. The periods already given by the trial Court, as modified by the Appellate Court, shall be counted from the date of this judgment. V.P.S. Appeal dismissed.

In August 1958, the State Government sanctioned a final town planning scheme The Bombay Town Planning Scheme, Santa Cruz, No. VI and directed that the scheme should come into force from 1st January 1959. As part of the scheme there was a Redistribution and Valuation Statement and to the Statement some Notes were appended. Note 11 provided that 'all huts, sheds, stables and Such other temporary structures including those which do not conform to the regulations of the scheme are required to be removed within one year from the date the final scheme comes into force. ' In pursuance of the scheme plots were allotted, Ind the respondents became the owners of certain plots. Huts, sheds and stables had been built on those plots by slum dwellers. , Since the appellant Corporation took no action for implementing the scheme, the respondents, from whom betterment charges were being recovered by the appellant, called upon the appellant to implement it by removing the Slums, etc., and to provide roads and drains as directed in the scheme. The appellant however, remained inactive, and the respondents filed a petition for the issue of a mandamus to the appellant and the High Court allowed the petition. In appeal to this Court, on the questions : (1) Whether the appellant was bound in law to remove the structures out the private plots of the respondents in so far as they contravened the Town Planning Scheme, and (2)whether a writ of mandamus could issue at the instance of the respondents when they had collected rents from the Occupants of the hut ments, etc. HELD : (1) Under section 51(3) of the Town Planning Act, 1954, the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act. The scheme and its regulations must, therefore. be read as supplemental to the Act. , Under section 53, all rights in the original plots of the private owners would determine, and if, in the scheme, reconstituted or final plots are allotted to them, they shall become subject to the rights settled by the Town Planning Officer in the final Scheme. The fact that the final plots coincided with the original plots of the) private owners would not make any difference. Under section 54 the local authority has to see whether any person is occupying any land in disregard of the rights determined under the scheme, and if he does so, he is to be summarily evicted by the local authority. Under section 55(1)(a) every building ,or work which is in contravention of the town planning scheme, wherever it may be in the area under the scheme, Could be removed, Pulled down ,or altered by the local authority which alone is named as the authority for that purpose. [414 D E; 415 A B, C D. H; 416 F F; 417 G] 409 In the present case, note 11 refers not merely to huts, sheds, stables which do not conform to the regulations of the scheme, but also to all huts, sheds, stables and such other temporary structures; and whosoever the owner or occupant may be, he is required to remove it within one year from the date the final scheme came into force. Hence, if the owner or occupant did not so remove he would be contravening the provisions of the scheme and thereupon the local authority will have the power under s.55 (1) (a) to remove or pull them down. The note takes note of the fact that the occupants of the hutments will be dishoused and makes provision for allotment of land to such dishoused persons. B C] Therefore, it is the primary duty of the Corporation as the local authority to remove all offending huts, etc., in the whole area under the scheme and not merely from those areas which are allotted to the Corporation. That the respondent could, by having recourse to law, eject the slum dwellers and remove their huts would not be a relevant consideration since the duty is imposed by the Act on the appellant. Further, there is no provision in the Act which requires owners of the plots to, take action against the hutment dwellers. [419 D E; 421 F G] The Maharashtra Regional and Town Planning Act. 1966, which came in to force during the pendency of the petition in the High Court has provisions corresponding to the 1954 Act which are practically of the same content. Hence the position is the same under the 1966 Act also. [419 E F, G H; 420 C D] (2) Since development and planning is primarily for the benefit of public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. A mandamus may hence be, issued to the appellant ordering that to be done which the statute requires to be done. [420 E F] In the present case, the High Court exercised its discretion in directing the issue of the writ and this Court, in appeal by special leave, will not ordinarily question that discretion. The mere fact that the owners of the plots received some amounts from the hutment dwellers by way of compensation or rent would not import any disqualification for issuing a mandamus at their instance. [421 A, F] Queen vs The Church Wardens of All Saints, Wigan, and Queen vs Garland, , referred to.

Civil Appeal No. 157 of 1985 From the Judgment and Order dated 20.1.1984 of the Allahabad High Court in W.P. No. 1404 of 1983. V.M. Tarkunde and Shakeel Ahmed Syed for the Appellant. S.C. Maheshwari, R.D. Upadhyay and Manoj Saxena for the Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal by special leave is directed against the judgment of the High Court of Allahabad (Lucknow Bench) dt. January 20, 1984 setting aside order of the Addl. District Judge, Lucknow dt. January 18, 1983 and quashing the allotment order made in appellant 's favour and directing the Addl. District Magistrate (Civil Supplies), Lucknow to reconsider the applications made for allot ment of the premises in dispute after giving notice to the respondent landlord. 129 The dispute relates to 1st floor of House No. 109/16 situate in Model House Colony, Aminabad, Lucknow. Mauji Ram Gupta the owner of the house was residing in the ground floor of the house while the 1st floor was let out to a tenant. Vacancy in the first floor arose, several persons including the appellant, H.C. Ghildiyal and Ramakant Srivastava made appli cations for allotment of the same. Mauji Ram Gupta, the landlord also made an application for the release of the premises to him under sec. 16 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Addl. District Magistrate, respondent No. 4 by his Order dt. 25.2.76 rejected Mauji Ram Gupta 's application and allotted the premises to H.C. Ghildiyal, but he did not occupy the premises; instead he informed respondent No. 4 that he did not require the premises. Thereaf ter respondent no.4 allotted the first floor of the house to the appellant by his order dt. July 23, 1976 and in pursuance to that order she obtained possession of the premises on 25.7.76. Mauji Ram Gupta, the landlord chal lenged the allotment order by means of revi sion application before the District Judge but the same was rejected. Mauji Ram Gupta entered into an agreement for the sale of the house with G.L. Pahwa, respondent No. 1 and in part performance of the agreement he permitted G.L. Pahwa to occupy the ground floor of the house in November 1976. G.L. Pahwa made application for allotment and the respondent No. 4 allot ted the ground floor to him on 31.12.76, this appears to have been done with a view to regularise his possession. Mauji Ram Gupta executed a registered sale deed in favour of G.L. Pahwa on 18.7.77 transferring the entire house including the premises in dispute to him, as a result of which respondent No. 1 became the owner and the landlord of the premises in dispute. R.K. Srivastava on unsuc cessful applicant for the allotment of the premises in dispute had challenged the allot ment order dt. 23.7.86 made in appellant 's favour under sec. 18 of the Act. The District Judge by his order dt. 18.8.77 allowed his revision application set aside the allotment order made in appellant 's favour and directed respondent No. 4 to reconsider the applica tions made for allotment of the premises in accordance with law. In pursuance of the directions issued by the District Judge re spondent No. 4 considered the applications and by his order dt. 4.1.78 he again allotted the premises to the appellant and rejected the claims of other applicants. Notice of the allotment proceedings was not given to re spondent No. 1, although by that time he had acquired full rights of a landlord. It appears that respondent had made an application to the State Govt. for release of the first floor and that had been forwarded by the Govt. to re spondent No. 4, which he disposed of by the same order dt. 4.1.78. Respondent No. 1 filed a 130 revision application under sec. 18 of the Act challenging the allotment order dt. 4.1.78. He filed a review application also before re spondent No. 4 for recall of the order dt. 4.1.78. During the pendency of the review application the revision application made by respondent No. 1 was dismissed by the District Judge on 28.2.78 for want of prosecution. However the review application of respondent No. 1 was allowed by respondent No. 4 by his order dr. 14.12.81 on the finding that since the premises in dispute was a part of land lord 's building which he was occupying, it was mandatory that notice should have been issued to the landlord and since no notice had been issued to him the allotment order was vitiat ed. On these findings, he recalled his Order dated 4.1.78. The appellant challenged the order by means of a revision application before the District Judge under sec. 18 of the Act. The Addl. District Judge, Lucknow exer cising powers of the District Judge allowed the revision application by his order dt. 18.1.83, and set aside the order of respondent No. 4 dt. 14.12.81, on the findings that review application was not maintainable and respondent No. 4 had no jurisdiction to review his order on the ground of absence of notice to respondent No. 1 who was transferee land lord. Respondent No. 1 challenged the validity of the order of the Addl. District Judge dt. 18.1.83 by means of a writ petition under article 226 of the Constitution before the High Court. A learned Single Judge of the High Court allowed the writ petition by his order dt. January 20, 1984 and quashed the order of the Addl. District Judge and directed respondent No. 4 to consider the application for allot ment for giving notice to respondent No. 1. Aggrieved the appellant challenged the validi ty of the order of the High Court. Before we consider the submissions made on behalf of the appellant it is necessary to briefly notice the findings recorded by the High Court. The High Court held that since the District Judge while setting aside the initial order of allotment made in appellant 's favour dt. 23.7.76 directed respondent No. 4 to consider the allotment applications in accord ance with law. Respondent No. 4 was under a legal duty to issue notice to respondent No. 1 who had by that time acquired rights of land lord. Since no notice was given to him the allotment proceeding was rendered illegal. The High Court further held that even though the landlord 's application for release of the premises in dispute had been rejected, the transferee landlord had right to nominate a tenant of his choice in accordance with sec. 17(2) of the Act. But as no notice was issued to him, he could not exercise his right to nominate a tenant of his choice although the appellant as well as the authority considering the application, for allotment both had ac quired 131 knowledge that respondent No. 1 was the trans feree landlord occupying a portion of the building. The High Court held that provisions of sec. 17(2) were mandatory and its non compliance rendered the allotment order void. The High Court held that as the order of allotment dt. 4.1.78 was made without giving notice to the landlord, the alloting authority was competent to recall its order in exercise of its inherent jurisdiction. On these find ings the High Court set aside the order of the Addl. District Judge and directed the alloting authority to reconsider the applications for allotment after giving notice to the landlord respondent No. 1. Shri Tarkundc learned counsel for the appellant urged that the High Court committed error in setting aside the allotment order and directing the District Magistrate to reconsid er the allotment applications at the instance of G.L. Pahwa, respondent No. 1. He further urged that since Mauji Ram Gupta, the erst while landlord 's application for release of the premises in dispute had been dismissed and revision against that was also dismissed for non prosecution, the erstwhile landlord had exhausted all his rights available to him under the Act. G.L. Pahwa being the successor in interest of Mauji Ram Gupta, did not and could not acquire any further right either to get the premises in dispute released in his favour or to challenge the validity of the allotment order. G.L. Pahwa was not entitled to maintain a review application and Addition al District Magistrate had no jurisdiction to recall his order dated 4.1.78 alloting the premises to the appellant and further he was not entitled to any notice either under sec tion 17(2) of the Act or under Rule 9(3), as the requisite notice had already been issued to the erstwhile landlord Mauji Ram Gupta who had contested the allotment proceedings. Having given our anxious consideration to these submissions and having regard to the facts and circumstance of the case we do not find any merit in the submissions. When a building or a part of a building falls vacant or is likely to fail vacant, the District Magistrate under section 16(1)(a) of the Act has jurisdiction to issue allotment order requiring the landlord to let the build ing or part thereof to the person specified in the order. The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 16(1)(b) of the Act, if the release applica tion is allowed, the landlord is permitted to occupy the building or part thereof as the case may be. But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant, and in pursuance thereof the allot tee is entitled to take possession. Before applications for allotment are con 132 sidered by the District Magistrate it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the U.P. Urban Build ings (Regulation of Letting, Rent and Evic tion) Rules, 1972 (hereinafter referred to as the Rules). Rule 9(3) requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant or is likely to fall vacant. This is mandatory as has been held by this Court in Yoginder Tiwari vs District Judge, Gorakhpur and Ors., and in catena of cases the High Court of Allahabad, has taken the same view, it is not necessary to burden the judgment by refer ring to all those decisions. The object and purpose of the notice to the landlord regard ing the date fixed for allotment proceedings is to enable him to file his objections if any, to the allotment proceedings or to make application for release of the premises as contemplated by section 16(1)(a) of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building. An allotment order made without giving notice to the landlord as required by Rule 9(3) would be rendered illegal. We there fore agree with the view taken by the High Court. At the initial stage of allotment proceed ings for the year 1976, Mauji Ram Gupta, the erstwhile landlord had made application for release of the accommodation and the first floor of the house, but that application was rejected and thereupon the District Magistrate allotted the premises to H.C. Ghildiyal by his order dated 23.7.76 Mauji Ram Gupta 's revision application against the order rejecting his release application was rejected by the Dis trict Judge on 5.8.76. Meanwhile the District Magistrate allotted the premises to the appel lant by his order dated 23.7.76. On the dis missal of the revision application of Mauji Ram Gupta, his claim for release of the premises in dispute stood rejected final ly. As noted earlier Mauji Ram Gupta sold the entire house in dispute to G.L. Pahwa on 18.7.77 and the allotment order in appellant 's favour was set aside by the Additional Dis trict Judge on 8.8.77 at the instance of R.K. Srivastava on unsuccessful applicant for the allotment of the premises in dispute. It is noteworthy that the appellant took no pro ceedings to challenge the order of Additional District Judge dt. 8.8.77 under which the allotment order was set aside and the District Magistrate was directed to reconsider the allotment applications in accordance with law. In such a situation G.L. Pahwa who had admittedly became the landlord of the premises in dispute was entitled to exercise fights of the landlord available to him under the Act. Section 17(2) lays down that where a part of a building is in occu 133 pation of landlord for a residential purpose, the allotment of any other part thereof under section 16(1)(a) shall be made in favour of a person nominated by the landlord. This provision safeguards interest of the landlord to have a tenant of his choice if he is occupying a portion of the building. The legislature enacted sec. 17(2) with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice. The. landlord 's valuable right cannot be taken away by the Dis trict Magistrate while exercising his powers of allotment under sec. 16(1)(a) of the Act. The scope and purpose of sec. 17(2) of the Act was considered by this Court in Babu Singh Chauhan vs Rajkumar Jain & Ors., ; and the Court observed: "A perusal of this statutory provision would clearly dis close that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which arc a part of the building occupied by the landlord, and allotment in the vacancy should be made only to a person nominated by the landlord. The dominant purpose to be sub served by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord. It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the grounds of personal necessity. The statute, however, while empowering the prescribed authority to allot the accommodation, safe guards at least the right of the landlord to have a tenant of his choice. " In the instant case there is no dispute that when the allotment proceedings were taken in pursuance of the Dis trict Judge 's Order dt. 8.8.77 and when the allotment was made in appellant 's favour on 4.1.78 no notice of the allot ment proceedings was issued to G.L. Pahwa, respondent No. 1, although the appellant as well as the Addl. District Magis trate both knew that G.L. Pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building. The allotment order was made in appellant 's favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contemplated by sec. 17(2) of the Act. In these circumstances there can be no doubt that 134 the order of the Addl. District Magistrate alloting the premises to the appellant was completely without jurisdic tion and against the plain terms of sec. 17(2) of the Act. The submission of Shri Tarkunde that on dismissal of the revision application of Mauji Ram Gupta the erstwhile land lord, all fights of the landlord stood exhausted and G.L. Pahwa being the transferee landlord could not exercise any further fight of landlord in the matter relating to allot ment of the premises in dispute are untenable. Mauji Ram Gupta 's application for release of the premises was dis missed and a revision application filed 'by him against the order of the Addl. District Magistrate refusing to release premises in dispute stood rejected, but if the conditions set out in sec. 16(1)(b) existed we see no reason as to why the transferee landlord could. not press his case for re lease but we do not think it necessary to consider this question in detail or to express any opinion on this ques tion as admittedly the transferee landlord respondent No. 1 made no application for release of the premises in dispute to the District Magistrate or to the prescribed authority and his application made to the State Government for release of the accommodation which was forwarded to the District Magistrate was rejected and the High Court has upheld that order and no challenge has been made by G.L. Pahwa to that order. Assuming that the transferee landlord 's fight to get the premises in dispute released stood exhausted, G.L. Pahwa being the landlord had every fight to nominate a tenant of his choice in accordance with sec. 17(2) of the Act. Admit tedly no notice had been issued to G.L. Pahwa affording any opportunity of nominating a tenant of his choice before the order of allotment dt. 4.1.78 was made. The landlord has fight to apply for release of the premises on the falling of a vacancy failing which he has another fight under sec. 17(2) to nominate a tenant of his choice if he is occupying a portion of the building. It is the duty of the authority considering the allotment under sec. 16(1)(a) of the Act, to afford opportunity to the landlord to nominate tenant of his choice and if the landlord nominates a person of his choice the authority is bound to allot the premises in favour of the nominee of the landlord. Mauji Ram Gupta was not given that opportunity, there was thus no question of his having exhausted his right to nominate a tenant of his choice. Learned counsel for the appellant urged that the Addl. District Magistrate had no power to allow the review appli cation made by G.L. Pahwa or to recall his order dt. 4.1.78 alloting the premises in dispute to the appellant. 16(5) provides for review of an order of allotment at the instance of a landlord on an application made within 7 135 days. In the instant case the Addl. District Magistrate by his Order dt. 14.12.81 recalled his order dt. 4.1. 78 allot ing the premises in dispute to the appellant on the ground that no notice of the proceeding had been served on the landlord, respondent No. 1 and that there was enough evi dence on record to show that the premises in dispute was a part of the landlord 's accommodation, yet he was not given opportunity to nominate a tenant of his choice. The Addl. District Magistrate therefore recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of sec. 17(2) of the Act. No exception can be taken to the correctness of the merit of the order of the Addl. District Magistrate. As discussed above we have already expressed our opinion that the allot ment order dt. 4.1.78 issued in appellant 's favour was rendered illegal for the non compliance of the mandatory provision of sec. 17(2) of the Act. In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to inter fere with the order of the Addl. District Magistrate, more so, when the High Court has already upheld that order. In view of the above discussion we are of the opinion that the High Court 's order does not suffer from any error of law and the appellant is not entitled to any relief. We accord ingly dismiss the appeal with costs. M.L.A. Appeal dis missed.

One Hukum Chand Seth, who constituted a HUF with the members of his family, owned extensive properties. The properties were partitioned between him, his wife and their son in equal shares by a Deed of Partition dated March 31, 1950. On the same date, Hukum Chand Seth and his wife executed two trust deeds nominating their son and five grandsons as the beneficiaries in respect of their shares in the aforesaid properties. The trust deeds which contained identical terms inter alia provided (a) that in the event of a beneficiary dying before the time of distribution of the properties between the beneficiaries, the share of the beneficiary so dying would be used to support and maintain his widow and his male issue in such manner as the trustees shall "in their absolute and uncontrolled discretion deem proper" and the surplus, if any, of the share of that beneficiary and the income therefrom would be accumulated and kept in credit to his account and preserved in order to be distributed; (b) that upon the youngest of the beneficiaries attaining the age of 30 years, the trustees would divide and distribute the trust properties together with the accumulated interest and income thereon among the beneficiaries according to their respective rights and shares; and (c) that if at the time of the division and distribution any beneficiary should have died without leaving any son but leaving only a widow, the widow would get half of the share of that beneficiary while the other half would be distributed among the remaining beneficiaries and the heirs of the beneficiaries entitled to distribution. With the passage of time the beneficiaries came into possession of their respective shares of the properties and the income from those properties was returned by them for the purpose of their income tax 1021 assessment in their individual status, but subsequently they began to assert that the properties were received by them as the Karta of their respective Hindu undivided families and that therefore the income was liable to be assessed in that status. The Income Tax Officer, during the relevant assessment years assessed the assessees/beneficiaries in their individual status and these assessments were confirmed by the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal. However, in a reference at the instance of the assessees, the High Court held that the properties had been settled with the assessees in their representative capacity as Kartas of their respective Hindu undivided families. Allowing the appeals by the Revenue to this Court, ^ HELD 1.1 The High Court has erred in the view taken by it of the two trust deeds. The question whether the income belongs to the individuals or Hindu undivided families has to be resolved upon the contents of the trust deeds, their terms and conditions being free from ambiguity. [1028D; 1026F] 1.2 Where the document contains no clear words describing the kind of interest which the donee is to take, the question is one of construction and the court must collect the intention of the donor from the language of the document taken along with the surrounding circumstances. There is no presumption one way or the other. Each case must be decided on its own facts and each document calls for its own particular construction. [1026H; 1027A B] C.N. Arunachala Mudaliar vs C.A. Muruganatha Mudaliar and Another, , referred to. In the instant case, on the plain terms of the trust deeds, the properties were intended to devolve on the beneficiaries in their individual capacity. The circustances surrounding the execution of the two documents indicate that a common intention inspired the minds of the two settlors. This has considerable significance when it is realised that while one trust deed was executed by a male member of the family the other was executed by a female member of the family. The course of devolution under the Hindu law would be materially different in the two cases and, therefore, the principles of the Hindu law governing the devolution of property in the case of property passing from a father to his son and grandsons cannot be invoked in these appeals. [1027B C] 1022 2. The terms and conditions of the trust deeds are wholly inconsistent with the property passing into the hands of the beneficiaries as Kartas of their respective Hindu undivided families. There is clear indication in the trust deeds which bears this out. In the first place, had it been intended that the beneficiary should receive the property as Karta of his Hindu undivided family the document would not have empowered the trustees, in clause 1 to exercise an absolute and uncontrolled discretion on the death of a beneficiary to apply his share to the maintenance of his widow and his male issue and to accumulate the surplus to the account of the said beneficiary for distribution. On the contrary, the trustees would have been under an obligation to entrust the income falling to the share of the deceased beneficiary to the members of his Hindu Undivided family and no discretion would have been permissible in regard to the disposal or otherwise of any part thereof. Secondly, the document would not have provided that if before the time of division and distribution a beneficiay died leaving only a widow, the widow would get a half of the share belonging to the deceased beneficiary while the other half would be liable to distribution among the remaining beneficiaries. These two conditions are sufficient in themselves to lead to the conclusion that it was never intended that the properties should pass to the beneficiaries to be held by them for their respective Hindu undivided families. [1027D H]

N: Criminal Appeal Nos. 106 107 of 1986. WITH (Criminal Appeal Nos. 166 67/1986). From the Judgment and order dated 5.9.1985 of the High Court of Rajasthan in D.B. Appeal No. 126/77 and Criminal Appeal Nos. 98 and 99 of 1977. R.L. Kohli, Uma Dutt and R.C. Kohli for the Appellant. B.D. Sharma and M.I. Khan Additional Advocate General for the Respondent. The Judgment of the Court was delivered by OZA, J. These two appeals arise out of the conviction of these two appellants alongwith one another under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs. 100 each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhunu dated 601 29th January 1977. Alongwith these two appellants Chandan and Om Prakash one Babulal son of Onkar Mal was also convicted but we have no appeal before us on behalf of Babulal. The prosecution case was that Smt. Dhaka widow of Shri Hanuman Prasad and mother of Shri Gyarsi Lal was living all alone in her house (Haveli) at Ward No. 1, Khetadi. In the morning of 23rd August, 1975 a person engaged for grazing the goats in jungle went to Smt. Dhaka 's house for taking her goats for grazing and called Smt. Dhaka but he did not get any response. P.W. 2 Smt. Banarsi who was living in the vicinity came on the spot and alongwith the Goatmen went inside the Haveli. They found goods scattered here and there and even when they loudly called Smt. Dhaka they did not hear any reply. P.W. 1 Matadeen who was feeding pigeons nearby was informed by Smt. Banarsi that Smt. Dhaka normally used to get up early but it appears that she had not woken up by that time and therefore expressed surprise. On this Matadeen went inside the house, reached the upper floor and found all the rooms opened and plenty of goods of Smt. Dhaka lying scattered. There he saw Smt. Dhaka Iying on a cot and found that she was wounded and bleeding at number of places. Shri Matadeen, then went to the Police Station, Khetadi and submitted his report exhibit P. 1. The Station House officer Surindra Singh reached the spot, prepared a memo and carried out the investigation. On 3rd September, 1975 one Mam Chand was arrested as an accused. Another accused Babulal was arrested on 5th September and the acquitted accused Laxmikant was arrested on 7th September and the two appellants in this appeal Om Prakash and Chandan were arrested on 11th September, 1975. Mam Chand later was granted pardon and has been examined as an approver in this case. On trial the learned Sessions Judge convicted all the accused persons and on appeal the High Court acquitted the accused Laxmikant but maintained the conviction against the three and aggrieved by the judgment of the High Court the present appeal on special leave has been filed before us by the two appellants mentioned above. It is not in dispute that there is no direct evidence in this case. The only evidence is the evidence of the approver Mam Chand and other evidence regarding recovery of articles. Learned counsel for the appellant contended that certain articles were recovered at the instance of Om Prakash and were put up for test identification and according to the evidence of the test identification these articles that were put up for identification, four witnesses were supposed to identify. Four witnesses appeared at test identification but three appeared in the 602 Court at trial. Out of these four witnesses, the first witness did not identify any article. The two witnesses Rameshwar and Phool Chand, P.Ws 13 and 14 did identify some articles. Their evidence after consideration has been rejected by the trial court and the other witness who identified the articles was Gyarsi Lal who happens to be the son of deceased, for the reasons best known, has not been examined at the trial at all and it was therefore contended by the learned counsel that so far as the recovery and identification of articles are concerned no article recovered has been identified to be that of the deceased and therefore this evidence of recovery in absence of identification is not at all relevant for the prosecution. He therefore contended that as it is settled law that accomplice 's evidence if it inspires confidence could be used to convict the accused person only if there is independent corroboration which could connect the accused with the crime and it was contended that this evidence of recovery and identification was supposed to be the evidence connecting the accused with the crime and corroborating the testimony of the approver but the learned Judges of the High Court did not consider this aspect of the matter that the two witnesses who had identified some articles their testimony has been discarded by the trial court and the High Court has not come to the conclusion that the trial court was not right in rejecting their testimony but superficially held that the evidence of identification is sufficient to corroborate the testimony of the approver. It was also contended that even the reading of the testimony of the approver shows that he has tried to keep himself away and the manner in which he has described the whole incident and the way in which he was taken into confidence by the other accused persons make his testimony unnatural and therefore could not be accepted. Learned counsel also placed reliance on certain decisions of this Court where the rule of prudence about the testimony of the accomplice has been repeatedly stated. Learned counsel appearing for the State of Rajasthan admitted that so far as the identification evidence is concerned, the most important witness Gyarsi Lal has not been examined at the trial and the other two who were examined, their testimony has been rejected but he attempted to contend that although Gyarsi Lal has not been examined in evidence at the trial but in test identification he had identified articles and therefore that evidence is sufficient to corroborate the testimony of the accomplice. He however did not challenge the proposition that the conviction could not be maintained on the sole testimony of the accomplice unless it is corroborated by some independent evidence connecting the accused with the crime. 603 So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime. In Haroon Haji Abdulla vs State of Maharashtra, [ ; it was observed as under: "An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused against whom the accomplice evidence is used, with the crime". Similarly in Ravinder Singh vs State of Haryana, [ ; it was observed as under: "An approver is a most unworthy friend, if at all, and he. having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver 's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. " 604 In this decision the first test indicated is that if the story given out by the accomplice appears intrinsically to be natural and probable, then alone that evidence could be of some value and then it is further observed that ordinarily an approver 's statement has to be corroborated. In this view of the settled legal position which was not disputed before us, it was contended that the evidence about recovery is of no consequence as there is no evidence of identification but as it was contended by the learned counsel for the respondent State that Gyarsi Lal who is the son of the deceased is not examined at the trial but he had identified articles at the identification parade and the learned counsel attempted to contend that this evidence could be used as a piece of corroboration. Unfortunately this evidence could not be looked into because: i) what he identified and stated to the Magistrate who conducted the identification parade is only a hearsay evidence as that evidence could only be used to corroborate his testimony if he was examined at the trial; and ii) what he stated to the Magistrate at the time of the test identification parade is not subjected to cross examination and was at the back of the accused could not be used as evidence against the accused. These are matters so settled and therefore it is sufficient to say that this contention is without any substance. Except this even the learned counsel for the State of Rajasthan had to concede that there is nothing about identification or anything to connect these articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime. It is not disputed that except this we are left with the only evidence of the approver Mam Chand. His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he has attempted to suggest that he did nothing. Neither he stated that he participated in looting nor in injuring or attacking the deceased. Reading through his evidence clearly indicates that he has claimed to be a spectator at every moment but has not participated at any stage. Apart from it the initial story appears also to be absolutely unnatural as according to him, he did not know anyone of these accused persons but a month before the incident they took him into confidence and told him to join them. After reading the evidence of the witnesses as a whole apparently the impression created is that the version does not appear to be natural version. In this view of the matter, in our opinion, the testimony is not such which inspires confidence. Apart from it as there is no corroboration at all from any other independent circumstance or source of evidence therefore the conviction of the appellants could not be maintained. It is rather unfortunate that the appeal has come up for hearing after a long time and ultimately it is found that 605 there is no evidence to sustain the conviction. The appeals are there A fore allowed. The sentence and conviction passed against both the accused are set aside. The appellants shall be set at liberty forthwith. P.S.S. P.S.S. Appeals allowed.

% The appellant, an employee of the Institute of Constitutional and Parliamentary Studies (I.C.P.S., for short), was dismissed from service by order dated November 17, 1982, as a result of disciplinary action. He challenged the dismissal order by a writ petition before the High Court. The question whether the I.C.P.S. was a 'State ' within the meaning of Article 12 of the Constitution arose for consideration as a major issue in the matter before the High Court. A Single Judge of the High Court dismissed the petition, holding that the employer was neither an agency nor an instrumentality of the government and did not constitute 'State ' as above said, and, therefore, was not subject to the writ jurisdiction of the High Court. The appeal against that judgment of the Single Judge was dismissed by the Division Bench of the High Court. Aggrieved by the decision of the High Court, the appellant moved this Court by special leave. Disposing of the appeal, the Court, ^ HELD: In the course of hearing, Dr. Anand Prakash, counsel for the I.C.P.S., respondent No. 2, stated that whether the Institute be 'State ' or not within the meaning of Article 12 of the Constitution, the employer was prepared to give a fresh opportunity to the appellant to meet the charges against him. With that concession, the order of dismissal, etc. passed against the appellant should have been set aside and the matter should have gone before the enquiry officer, but Dr. Anand Prakash as also counsel for the Union of India invited the Court to decide the issue as to whether the I.C.P.S. constituted 'State ' within the constitutional meaning of the term. [263H; 264A C] The main question for consideration then was whether I.C.P.S. was a 'State '. I.C.P.S. could become 'State ' only if it was found to be an authority within the territory of India or under the control of the Government of India. [264D,G] 261 I.C.P.S. is a registered society. The emergence of a new generation within less than two decades of independence gave rise to a feeling that the people 's representatives in the Legislatures required the acquisition of the appropriate democratic bias and spirit. I.C.P.S. was born as a voluntary organisation to fulfil this requirement. The Speaker of the Lok Sabha was its first President. Three Ministers, a former Chief Justice of India and a former Attorney General joined as its Vice Presidents. Some of the public officers were associated in its Administrative set up. Services of some employees of Parliament were lent to it. While Article 12 refers to Parliament as such, a few members of Parliament cannot be considered as Parliament so as to constitute that body as referred to in Article 12. The Speaker and the Ministers who joined as Vice Presidents of the Society were there in their personal capacities and not as Ministers, etc. There were many people in the category of Vice President, Executive Chairman, Treasurer and members, who were not a part of the Government, and some of them did not belong to Parliament. [281A F] The objects of the Society were not governmental business. Many of the objects of the Society were not confined to the two Houses of Parliament and were intended to have an impact on Society at large. [281G H] The Memorandum of the Society permitted acceptance of gifts, donations and subscriptions. No material was placed before the Court for the stand that the Society was not entitled to receive contributions from any indigenous source without government sanction. Since government money has been coming, the usual conditions attached to government grants have been applied and enforced. If the Society 's affairs were really intended to be carried on as a part of the Lok Sabha or Parliament as such, the manner of functioning would have been different. The accounts of the Society are subject to audit as the affairs of the Societies receiving government grants are. Government imposes conditions and restrictions when grants are made, and the Society is also subject to the same, and the mere fact that such restrictions are made is not a determinative aspect.[281H; 282 A D] There are registered societies which have been treated as 'State ', but in the case of each of them, either governmental business had been undertaken by the Society or what was expected to be the public obligation of the 'State ' had been undertaken to be performed as a part of the Society 's function. [282H; 283A] 262 Having given anxious consideration to the facts of the case, the Court is not in a position to hold that I.C.P.S. is either an agency or an instrumentality of the State so as to come within the purview of other authorities"in Article 12 of the Constitution. I.C.P.S. is a case of its type typical in many ways and normal tests may, perhaps, not properly apply to test its character. Even if some institution becomes 'State ' within the meaning of Article 12, its employees do not become holders of Civil posts so as to become entitled to the cover of Article 311 of the Constitution. They would, however, be entitled to the benefits of Part III of the Constitution. It is unnecessary to examine the appellant 's case, keeping Articles 14 and 16 of the Constitution in view, as, on the concession of counsel for I.C.P.S., the proceedings would have to re open. [283C E] In the result, the appellant would be entitled to the following reliefs. The order of dismissal set aside and the proceedings restored to the stage of enquiry. [283F] The appellant shall be deemed to have been restored to service and he would become entitled to normal relief available in such a situation. He should be deemed to be in service and his suspension would not continue. His suspension, which had merged into dismissal is vacated. It shall, however, be open to the employer to make any direction as is deemed appropriate in that behalf in future. [283F G] The appellant becomes entitled to salary for the past period subject to his satisfying the authorities that he had not earned any income during that period. [283H] The appellant shall be given a reasonable opportunity by the enquiring officer to meet the charges and the enquiry shall be completed within four months. [283H; 284A] The enquiry officer shall allow inspection to the appellant of all records relevant to the enquiry. [284B] Rajasthan State Electricity Board, Jaipur vs Mohan Lal and Ors. , ; ; Smt. Ujjam Bai vs State of Uttar Pradesh, [1963] l SCR 778; Sabhajit Tewary vs Union of India Sardar Singh Raghuvanshi & Anr. , ; ; Ramana Dayaram Shetty vs The 263 International Airport Authority of India & Ors., ; ; Managing Director, Uttar Pradesh Warehousing Corporation & Anr. vs Vinay Narayan Vajpayee, ; ; Ajay Hasia, etc. vs Khalid Mujib Sehravardi & Ors. etc. ; , ; Som Prakash Rekhi v Union of India and Anr., ; ; B.S.Minhas vs Indian Statistical Institute & Ors., ; and P. K Ramachandra Iyer and Ors. vs Union of India and Ors.

Appeal No. 220/ 1963. Appeal by special leave from the judgment and order dated January 9, 1961 of the Kerala High Court in I.T.R. Case No. 17 of 1959. K. N. Rajagopal Sastri and R. N. Sachthey, for the ap pellant. The respondent did not appear. April 1, 1964. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave preferred against the judgment of the High Court of Kerala at Ernakulam raises the question of the interpretation of section 7(1) of the Indian Income tax Act, 1922 (Act No. XI of 1922), hereinafter called the Act. The respondent, L. W. Russel, is an employee of the English and Scottish Joint Co operative Wholesale Society Ltd., Kozhikode, hereinafter called the Society, which was incorporated in England. The Society established a superan nuation scheme for the benefit of the male European members of the Society 's staff employed in India, Ceylon and Africa by means of deferred annuities. The terms of such benefits were incorporated in a trust deed dated July 27, 1934. Every European employee of the Society shall become a member of that scheme as a condition of employment. Under the term of the scheme the trustee has to effect a policy of insurance for the purpose of ensuring an annuity to every member of the Society on his attaining the age of superannuation or on the happening of a specified contin gency. The Society contributes 1/3 of the premium payable by such employee. During the year 1956 57 the Society con tributed Rs. 3,333/ towards the premium payable by the respondent. The Income tax Officer, Kozhikode Circle, in cluded the said amount in the taxable income of the respon dent for the year 1956 57 under section 7(1), Explanation 1 Sub cl. (v) of the Act. The appeal preferred by the respondent against 571 the said inclusion to the Appellate Assistant Commissioner of Income tax, Kozhikode, was dismissed. The further appeal preferred to the Income tax Appellate Tribunal received the same fate. The assessee thereupon filed an application under section 66(1) of the Act to the Income tax Appellate Tribunal for stating a case to the High Court. By its order dated December 1, 1958, the Tribunal submitted a statement of case referring the following three questions of law to the High Court of Kerala at Ernakulam: (1) Whether the contributions paid by the employer to the assessee under the terms of a trust deed in respect of a contract for a deferred annuity on the life of the assessee is a 'perquisite ' as contemplated by section 7(1) of the Indian Income tax Act? (2) Whether the said contributions were allowed to or due to the applicant by or from the employer in the accounting year? (3) Whether the deferred annuity aforesaid is an annuity hit by section 7(1) and para. (v) of Explanation 1 thereto? On the first question the High Court held that the employer 's contribution under the terms of the trust deed was not a perquisite as contemplated by section 7(1) of the Act. On the second question it came to the conclusion that the employer 's contributions were not allowed to or due to the employee in the accounting year. On the third question it expressed the opinion that the Legislature not having used the word 'deferred" with annuity in section 7(1) and the statute being a taxing one, the deferred annuity would not be hit by para. (v) of Explanation 1 to section 7(1) of the Act. The Commissioner of Income tax has preferred the present appeal to this Court questioning the correctness of the said answers. The three questions formulated for the High Court 's opinion are interdependent and the answers to them turn upon the true interpretation of the relevant part of section 7(1) of the Act. Mr. Rajagopala Sastri, learned counsel for the appellant, contends that the amount contributed by the Society under the scheme towards the insurance premium payable by the trustees for arranging a deferred annuity on the respondent 's superannuation is a perquisite within the meaning of section 7(1) of the Act and that the fact that the respondent may not have the benefit of the contributions on the happening of certain contingencies will not make the said contributions any the less a perquisite. The employer 's share of the contributions to the fund earmarked for paying premiums of the insurance policy, the argument proceeds, vests in the respondent as soon as 572 it is paid to the trustee and the happening of a contingency only 'operates as a defeasance of the vested right. The respondent is ex parte and, therefore, the Court has not the benefit of the exposition of the contrary view. Before we attempt to construe the scope of section 7(1) of the Act it will be convenient at the outset to notice the pro visions of the scheme, for the scope of the respondent 's right in the amounts representing the employer 's contributions thereunder depends upon it. The trust deed and the rules dated July 27, 1934, embody the superannuation scheme. The scheme is described as the English and Scottish Joint Co operative Wholesale Society Limited Overseas European Employees ' Superannuation Scheme, hereinafter called the Scheme. It is established for the benefit of the male European members 'of the Society 's staff employed in India, Ceylon and Africa by means of deferred annuities. The Society itself is appointed thereunder as the first trustee. The trustees shall act as agents for and on behalf of the Society and the members respectively; they shall effect or cause to be effected such policy or policies as may be necessary to carry out the scheme and shall collect and arrange for the payment of the moneys payable under such policy or policies and shall hold such moneys as trustees for and on behalf of the person or persons entitled thereto under the rules of the Scheme. The object of the Scheme is to provide for pensions by means of deferred annuities for the members upon retirement from employment on attaining certain age under the conditions mentioned therein, namely, every European employee of the Society shall be required as a condition of employment to apply to become a member of the Scheme from the date of his engagement by the Society and no member shall be entitled to relinquish his membership except on the termination of his employment with Society; the pension payable to a member shall be provided by means of a policy securing a deferred annuity upon the life of such member to be effected by the Trustees as agents for and on behalf of the Society and the members respectively with the Co operative Insurance Society Limited securing the payment to the Trustees of an annuity equivalent to the pension to which such member shall be entitled under the Scheme and the Rules; the insurers shall agree that the Trustees shall be entitled to surrender such deferred annuity and that, on such deferred annuity being so surrendered, the insurers will pay to the Trustees the total amount of the premiums paid in respect thereof together with compound interest thereon; all moneys received by the Trustees from the insurers shall be held by them as Trustees for and 'on behalf of the person or persons entitled thereto under the Rules of the Scheme; any policy or policies issued by the insurers in connection with the 573 Scheme shall be deposited with the Trustees; the Society shall contribute one third of the premium from time to time payable in respect of the policy securing the deferred annuity in respect of each member as thereinbefore provided and the member shall contribute the remaining two thirds , the age at which a member shall normally retire from the service of the Society shall be the age of 55 years and on retirement at such age a member shall be entitled to receive a pension of the amount specified in Rule 6; a member may also, after following the prescribed procedure, commute the pension to which he is entitled for a payment in cash in accordance with the fourth column of the Table in the Appendix annexed to the Rules; if a member shall leave or be dismissed from the service of the Society for any reason whatsoever or shall die while in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the Society or shall leave or be dismissed from the service of the Society on account of permanent breakdown in health (as to the bona fides of which the Trustees shall be satisfied,) such further proportion (if any) of the total amount of the portions of the premiums paid by the Society in respect of that member shall be payable in accordance with Table C in the Appendix to the Rules; if the total amount of the portions of the premiums in respect of such member paid by the Society together with interest thereon as aforesaid shall not be paid by the Trustees to him or his legal personal representatives under sub section (1) of r. 15 then such proportion or the whole, as the case may be, of the Society 's portion of such premiums and interest thereon as aforesaid as shall not be paid by the Trustees to such member or his legal personal representatives as aforesaid shall be paid by the Trustees to the Society; the rules may be altered, amended or rescinded and new rules may be made in accordance with the provisions of the Trust Deed but not otherwise. We have given the relevant part of the Scheme and the Rules. The gist of the Scheme may be stated thus: The object of the Scheme is to provide for pensions to its employees. It is achieved by creating a trust. The Trustees appointed thereunder are the agents of the employer as well as of the employees and hold the moneys received from the employer, the employee and the insurer in trust for and on behalf of the person or persons entitled thereto under the rules of the Scheme. The Trustees are enjoined to take out policies of insurance securing a deferred annuity upon the 574 life of each member, and funds are provided by contributions from the employer as well as from the employees. The Trus tees realise the annuities and pay the pensions to the employees. Under certain contingencies mentioned above, an employee would be entitled to the pension only after super annuation. If the employee leave the service of the Society or is dismissed from service or dies in the service of the Society, he will be entitled only to get back the total amount of the portion of the premium paid by him, though the trustees in their discretion under certain circumstances may give him a proportion of the premiums paid by the Society. The entire amount representing the contributions made by the Society or part thereof, as the case may be, will then have to be paid by the Trustees to the Society. Under the scheme the employee has not acquired any vested right in the con tributions made by the Society. Such a right vests in him only when he attains the age of superannuation. Till that date that amount vests in the Trustees to be administered in accordance with the rules , that is to say, in case the employee ceases to be a member of the Society by death or otherwise, the amount contributed by the employer with interest thereon, subject to the discretionary power exercisable by the trustees, become payable to the Society. If he reaches the age of superannuation, the said contributions irrevocably become fixed as part of the funds yielding the pension. To put it in other words, till a member attains the age of superannuation the employer 's share of the contributions towards the premiums does not vest in the employee. At best he has a contingent right therein. In 'one contingency the said amount becomes payable to the employer and in another contingency, to the employee. Now let us look at the provisions of section 7(1) of the Act in order to ascertain whether such a contingent right is hit by the said provisions. The material part of the section reads: Section 7(1) The tax shall be payable by an assessee under the head "salaries" in respect of any salary or wages, any annuity, pension or gratuity, and any fees, commissions, perquisites or profits in lieu of, 'or in addition to, any salary or wages, which are allowed to him by or are due to him, whether paid or not, from, or are paid by or on behalf of. . . a company. . . . Explanation I For the purpose of this section perquisite includes (v) any sum payable by the employer, whether directly or through a fund to which the pro. visions of Chapters IX A and IX B do not 575 apply, to effect an assurance on the life of the assessee or in respect 'of a contract of annuity on the life of the assessees. This section imposes a tax on the remuneration of an employee. It presupposes the existence of the relationship if employer and employee. The present case is sought to be brought under the head "perquisites in lieu of, or in addition to, any salary or wages, which are allowed to him by or are due to him, whether paid or not, from, or are paid by or on behalf of a company". The expression "perquisites" is defined in the Oxford Dictionary as "casual emoluments. fee or profit attached to an office or position in addition to salary or wages". Explanation 1 to section 7(1) of the Act gives an inclusive definition. Clause (v) thereof includes within the meaning of "perquisites" any sum payable by the employer, whether directly or through a fund to which the provisions of Chs. IX A and IX B do not apply, to effect an assurance on the life of the assessee or in respect of a contract for an annuity on the life of the assessee. A combined reading of the substantive part of section 7(1) and cl. (v) of Expl. 1 thereto makes it clear that if a sum of money is allowed to the employee by or is due to him from or is paid to enable the latter to effect an insurance on his life, the said sum would be a perquisite within the meaning of section 7(1) of the Act and, therefore, would be eligible to tax. But before such sum becomes so exigible, it shall either be paid to the employee or allowed to him by or due to him from the employer. So far as the expression "paid" is concerned, there is no difficulty, for it takes in every receipt by the employee from the employer whether it was due to him or not. The expression "due" followed by the qualifying clause "whether paid or not" shows that there shall be an obligation on the part of the employer to pay that amount and a right on the employee to claim the same. The expression "allowed", it is said, is of a wider connota tion and any credit made in the employer 's account is cover ed thereby. The word "allowed" was introduced in the sec tion by the Finance Act of 1955. The said expression in the legal terminology is equivalent to "fixed, taken into account, set apart, granted". It takes in perquisites given in cash or in kind or in money or money 's worth and also amenities which are not convertible into money. It implies that a eight is conferred on the employee in respect of those perquisites. One cannot be said to allow a perquisite to an employee if the employee has no right to the same. It cannot apply to contingent payments to which the employee has no right till the contingency occurs. In short, the employee must have a vested right therein. If that be the interpretation of section 7(1) of the Act, it is. not possible to hold that the amounts paid by the Society 576 to the Trustees to be administered by them in accordance with the rules framed under the Scheme are perquisites allowed to the respondent or due to him. Till he reaches the age of superannuation, the amounts vest in the Trustees and the beneficiary under the trust can be ascertained only on the happening of one or other of the contingencies provided for under the trust deed. On the happening of one contingency, the employer becomes the beneficiary, and on the happening of another contingency, the employee becomes the beneficiary. Learned counsel for the appellant strongly relied upon the decision of the King 's Bench Division in Smyth vs Stretton(1). There, one Stretton, one of the Assistant Masters of Dulwich College, was assessed to income tax in the sum of pouns 385 in respect of his emoluments as Assistant Master received from the Governors of Dulwich College for the year ended the 5th day of April, 1901. He objected to the assessment on the ground that it included pound 35 not liable to taxation, being amount placed to his credit by the Governors under the Provident Fund Scheme for the year 1900. Channell, J., with some hesitation, came to the conclusion that the said sum was taxable. That case was dealing with a scheme for the establishment of provident fund for the benefit of the Assistant Masters on the permanent staff of the Dulwich College. Under para. 1 of the scheme the salaries of Assistant Masters were increased. Clause (a) of para. 1 of the scheme provided that Assistant Masters having not less than five years, but less than fifteen years ' service, would be allowed an increase of 5 per cent, in their salaries; under cl. (b) thereof, Assistant Masters having not less than 15 years ' of service and over, would get an increase of 7 1/2 per cent. in their salaries; under cl. (c) thereof, a further addition in their salaries, equal in amount to the above sums, should be granted from the same date to the Assistant Masters alluded to in (a) and (b), such addition being, however, subject to the conditions provided by para. Paragraph 5 read: "That Assistant Masters having less than ten years ' service who may resign their appointments, or from any other cause than ill health cease to belong to the College, shall be entitled to receive the total increase sanctioned by (a) and the accu mulations thereof, but shall not receive the additional increase sanctioned by (c), or the accumulations thereof. In the event of any such Assistant Master retiring from ill health the Governors, in addition to the increase sanctioned by (a), may grant him the further 5 per cent. sanctioned by (c), and the accumulations thereof. In the event of death of any such Assistant Master whilst in (1) , 46. 577 the service of the College, the 5 percent. due by (c) as well as under (a), with the accumulations thereof, shall be paid to his legal representatives". It was contended that the amount payable under cl. (c) of para. I was a contingent one without any vested character and, therefore, could not be described as income in any way. The learned Judge construed the provisions of the scheme and rejected the contention. The main reason for his conclusion is stated thus: "The result seems to me to be that I must take that sum as a sum which really has been added to the salary and is taxable, and it is not the less added to the salary because there has been a binding obligation created between the Assistant Masters and Governors of the Schools that they should apply it in a particular way". No doubt it is possible for another court to come to a different conclusion on the construction of the provisions of the scheme; but the learned Judge came to the conclusion that cl. (c) of para. 1 of the scheme provided for an additional salary to the Assistant Masters. Indeed, the Court of Appeal in Edwards (H. M. Inspector of Taxes) vs Roberts(1) construed a similar scheme and came to the contrary conclusion and explained the earlier decision on the basis we have indicated. There, the respondent was employed by a company under a service agreement dated 'August 21, 1921, which provided inter alia, that, in addition to an annual salary, he should have an interest in a "conditional fund", which was to be created by the company by the payment after the end of each financial year of a sum out of its profits to the trustees of the fund to be invested by them in the purchase of the company 's shares or debenture stock. Subject to possible forfeiture of his interest in certain events, the respondent was entitled to receive the income produced by the fund at the expiration of each financial year, and to receive part of the capital of the fund, (or, at the trustees ' option, the investments representing the same) at the expiration of five financial years and of each succeeding year, and, on death whilst in the company 's service or on the termination of his employ ment by the company, to receive the whole amount then standing to the credit of the capital amount of the fund (or the actual investments). The respondent resigned from the service of the company in September, 1927, and at that date the trustees of the fund transferred to him the shares which they had purchased out of the payments made to them by the company in the years 1922 to 1927. He was assessed to income tax on the amount of the current market value of the (1) , 638, 640. LP(D)ISCI 17 578 shares at the date of transfer. The assessee contended that immediately a sum was paid by the company to the trustee& of the fund he became invested with a beneficial interest in the payment which formed part 'of his emoluments for the year in which it was made, and for no other year, and that, accordingly, the amount of the assessment for the year 1927 28 ought not, in any event, to exceed the aggregate of the sums paid by the company to the trustees, the difference between the amount and the value of the investments at the date of transfer representing a capital appreciation not liable to tax for any year. The Court of Appeal rejected the contention. Lord Hanworth, M. R., in rejecting the contention. observed be said to have accrued to this employee a vested interest in these successive sums placed to his credit, but only that he had a chance of being paid a sum at the end of six years if all went well. That chance has now supervened, and he has got it by reason of the fact of his employment, or by reason of his exercising an employment of profit within Schedule E.". Maugham. L. J., said much to the same effect thus: "The true nature of the agreement was that lie was to be entitled in the events, and only in the events mentioned in Clause 8 of the agreement, to the investments made by the Company out of the net profits of the Company as provided in Clause 6.". The decision of Channel], J., in Smyth vs Stretton(1) was strongly relied upon before the appellate court. But the, learned Judges distinguished that case on the round that under the scheme which was the subject matter Of that deci sion the sums taxed were really additions to the salary of the Assistant Master and that. in any view, that decision should be confined to the facts of that case. The principle laid down by the Court of Appeal, namely, that unless a vested interest in the sum accrues to an employee it is not taxable. equally applies to the present case. As we have pointed out earlier, no interest in the sum contributed by the employer under the scheme vested in the employee. as it was only a contingent interest depending upon his reaching the age of superannuation. It is not a perquisite allowed to him by the employer or an amount due to him from the employer within the meaning of section 7(1) of the Act. We, therefore, hold that the High Court has given correct answers to the questions of law submitted to it by the Income tax Appellate Tribunal. In the result, the appeal fails and is dismissed. Appeal dismissed. (1)(1904) 46.

Held per KANIA (C.J. FAZL ALl, and MAHAJAN JJ. (MUKH ERJEA and PATANJALI SASTRI JJ. dissenting). The functions and duties of the Industrial Tribunal constituted under , are very much like those of a body discharging judicial functions although it is not a Court, and under article 136 of the Constitution of India the Supreme Court jurisdiction to entertain an application for leave to appeal from decision of the Tribunal, even though it will be very to entertain such an application. Per MUKERJEA J. (PATANJALI SASTRI J. concurring). An Industrial Tribunal functioning under the is not a judicial tribunal. The nature of the determinations made and the materials and considerations on which it has to decide a dispute are also such that the powers of an appellate court cannot be exer cised fully and effectively in respect of them and such determinations are therefore outside the purview of article 136 of the Constitution. Even assuming that the Court had jurisdiction appeal, the present case was not a fit one for entertaining an appeal from the determination of the Tribunal. [On the merits KANlA C. J., FAZL ALl, PATANJALI SASTRI and MUKHERJEA, JJ. were of opinion that there was no ground for admitting the appeal. MAHAJAN J. was of opinion that the award was bad and must be set aside.]

ion No. 91 of 1964. Petition under article 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 358 of 1966. Appeal by special leave from the judgment and order dated September 9, 1963 of the Allahabad High Court in Civil Writ Petition No. 1885 of 1962. J.P. Goyal and Raghunath Singh, for the petitioner (in W.P. No. 91 of 1964). A.K. Sen, J. P. Goyal and Raghunath Singh, for the appel lants (in C.A. No. 358/66). B.Sen and section P. Nayar, for respondent No. 1 (in W.P. No. 91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of 1966). N.N. Sharma, for respondent No. 2 (in W.P. No. 91/64) and respondents Nos. 16 and 17 (in C.A. No. 358/66). 843 The Judgment of the Court was delivered by Bbargava, J. This writ petition and the appeal challenge the validity of the Hindi Sahitya Sammelan Act No. 13 of 1962 (hereinafter referred to as "the Act"). The facts leading up to the passing of this enactment are that, in the year 1910, some eminent educationists assembled at Banaras and founded an Association for the development of Hindi and its propagation throughout the country. This Association was named as the Hindi Sahitya Sammelan. On the 8th January, 1914, it was registered as a Society under the No. 21 of 1860, with Head Office at Allahabad, under the name of Hindi Sahitya Sammelan. The rules and bye laws of the Society laid down the objects of this Association and the manner of its working. It had three classes of members, viz., special members (Vishisht Sadasya), permanent members (Sthayi Sadasya), and ordinary members (Sadharan Sadasya). Under the bye laws, apart from the original members constituting the Society, further mem bers could be admitted under these three classifications on being elected by the working committee of the Society. Under the Rules and bye laws of the Society, other bodies could be constituted for carrying on activities of the Society. These included a Governing Body, a Working Committee, a Hindi University Council, Literary Council (Sahitya Samiti), Library Committee, Parchar Samiti and Rashtriaya Bhasha Prachar Samiti. Through the agencies of these various Committees, the Society carried on the work of development and propagation of Hindi, of spreading the use of Devnagri scrip, of holding examinations, and of confer ring Degrees for proficiency in Hindi. The Society owned landed properties and buildings at Allahabad as well as at some other places such as Warding, and was holding considerable funds for carrying on its activities. The Society worked very successfully for a number of years. It appears that in the year 1950, some differences arose between the members of the Society, and attempt was made to alter the constitution, of the Society. while one section wanted the alterations, another section was opposed to it. This resulted in litigation. Three different suits were instituted in the civil Courts at Allahabad in this connection and injunctions were sought by one party against the other. Ultimately, the Court appointed a Receiver. In view of these circumstances, the U.P. Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36 of 1956, under which a statutory body was created under the name of Hindi Sahitya Sammelan, and the word "Sammelan" was defined as referring to the Hindi Sahitya Sammelan constitu ted under the Act. Under that Act. Under that Act, the mana 844 gement and properties of the original Hindi Sahitya Sammelan, which was a registered Society, were to be taken over by the new statutory Sammelan. That Act was, however, declared void by the Allahabad High Court on the ground that Act had made the original Sammelan cease to exist and provided for the constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say, so that Act infringed the right of the members of the original Sammelan of forming an association guaranteed by article 19 (1) (c) of the Constitution. It was further held that Act was not saved under article 19(4) of the Constitution. Thereafter, the present Act, now challenged in this writ petition and the appeal, was passed by Parliament under Entry 63 of List I of the Seventh Schedule to the Constitution. The Act itself, in section 2, contained the necessary declaration to give legislative competence to Parliament under that Entry. The Act first contained in section 2 a declaration in the following words : "Whereas the objects of the institution known as the Hindi Sahitya Sammelan which has its head office at Allahabad are such as to make the instituation one of national importance, it is hereby declared that the institution known as the Hindi Sahitya Sammelan is an institution of national importance. " Having declared this institution as an institution of national importance, th. , Act proceeded to define "Sammelan" as meaning the institution known as the Hindi Sahitya Sammelan incorporated under this Act, while the word "Society" was defined to mean "the Hindi Sahitya Sammelan which has its head office at Allahabad and is registered under the ." Under section 4(1) of the Act, the Sannnelan was constituted which was to consist of the first members of the Sammelan and all persons who may hereafter become members thereof in accordance with the rules made in that behalf. This statutory Sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan, and under sub section (2) of section 4, it was to have perpetual succession and a common seal with power, subject to the provision of the. Act, to acquire, hold and dispose of property and to contract and to sue and be sued by that name. The Head Office of the Sammelan was to be at Allahabad. Under subs.(4) of section the first members of the Sammelan were to consist of persons who, immediately before the appointed day. (a) were special members (Vishisht Sadasya) of the Society; 8 45 (b) (were. life members (Sthayi Sadasya) of the Society. (c) had been Presidents of the Society; or (d) were awarded the Mangla Prasad Paritoshik by the Society. This sub section (4) of section 4 was amended retrospectively with effect from the date that the Act came into force by the Hindi Sahitya Sammelan (Amendment) Act No. 1 of 1963, and the first members of the Sammelan were, under this amendment, declared to be (a) all persons who, immediately before the appointed day, were members of the Society; (b) all persons who, before that day, had been Presidents of the Society; and (c) all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society. It is not necessary to give in detail the other provisions of the Act, except that it may be mentioned that the Act provided for vesting of all property, movable or immovable, or, belonging to the Society in the Sammelan, transferring all rights and Liabilities of the Society to the Sammelan, converting reference to the Society in any law to the Sammelan, and other similar necessary provisions. The Act itself did not make any provision for the future membership of the Sammelan; but, under section 12(1) (a), the first Governing Body of the Sammelan was directed to make rules in respect of matters relating to membership, including qualifications and disqualifications For membership of the Sammelan. The first Governing Body was to be constituted under section 8 and was to consist of a Chairman, a Secretary and 13 other members. This Governing Body was to be constituted by a notification in the Official Gazette by the Central Government. The thirteen members were to be chosen as follows : (i) one member to represent the Ministry of the Central Government dealing with education; (ii)one member to represent the Ministry of the Central Government dealing with finance; (iii)not more than three members from among the former Presidents of the Society; and (iv)the remaining number from among persons who are, in the opinion of the Central Govern 846 ment, eminent in the field of Hindi language or Hindi literature. It was this first Governing Body which was to make rules on all matters relating to membership of the Sammelan under section 12 (1 )(a) of the Act. These rules were not have effect until they were approved by the Central. Government and were published by the first Governing Body in such manner as the Central Government may, by order, direct. A copy of the rules was also to be laid before each House of Parliament. Counsel for respondent No. 1 placed before us a copy of the rules which, according to him, have been made by the first Governing Body with the approval of the Government and have been published as required. The Rules come into force on 1st of February, 1971. The petition under article 32, and the petition under article 226, out of which the civil appeal arises, were both moved much earlier and long before these Rules were framed. These petitions challenged the validity of the Act, without taking into account the actual Rules framed, mainly on the ground that he Act had interfered with the right of the petitioners to form association Linder article 19(1)(c) of the Constitution and was not protected by article 19(4). In the petition before the Allahabad High Court, the Court held that, since all the members of the Society had also become members of the Sammelan under the Act, there was no infringement of the right to form association, so that the Act could not be declared invalid on that ground. The writ petition in this Court has been filed by only one member of the Society, while the petition in the High Court and the appeal against the judgment of the High Court, which is before us, were filed by the original Hindi Sahitya Sammelan as one party and 72 members of that Sammelan joining as other petitioning parties. 'In the civil appeal, thus, the grievance that the Act ha$ infringed the fundamental right has been put forward both by the Society itself as well as by 72 of its members, including members of the Working Committee and the Governing Body of the society. They have all come up to this Court against the decision of the High Court in this appeal by special leave. In the counter affidavits filed on behalf of the respondents in the writ petition before the High Court as well as in the writ petition in this Court, the position taken up was that the Act, in fact, does not deprive the Society and its members of any rights which they had under the constitution of the Society and did not interfere with their right of association inasmuch as all the members of the Society have been included as members of the Sammelan under the Act. The High Court, in fact, dismissed the writ petition on accepting this submission put forward on behalf of the respondents. In the arguments before us, learned counsel for 847 respondent No. 1, however, took UP a different position and urged that the Act keeps the Society in tact as it was, where a new Sammelan is constituted under the Act for the purpose of managing the institution which has been declared as an institution of national importance. He put this aspect of the case in the forefront, but, in the alternative, he also argued the case on the basis of the position taken up in the counter affidavits in the High Court and in this Court as mentioned above. We consider it convenient to first deal with the case as was specifically put forward in the counter affidavits. In these counter affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the , as an insti tution of national importance, Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter se between the members of the Society. It was for this purpose that a first Governing Body was constituted to take over the management temporarily. The Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them. The Society was never dissolved; instead of the Society remaining a body registered under the , it was converted into a statutory Sammelan under the Act. It, however, appears on examination of the provisions of the Act that the Sammelan under the Act is composed not only of persons, who were members of the Society, but of others who have been given the right to be members of the Sammelan without the consent of the preexisting members. Under section 4(4) itself, as retrospectively amended in 1963, apart from persons, who were members of the Society, others, who have been made members of the Sammelan, are all persons who, before that day, had been Presidents of the Society and all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society. These members have been added without any option being available to the existing members of the Society to elect or refuse to elect them as members which was the right they possessed under the constitution of the Society itself. Further, under section 12 (1) (a), very wide powers were given to the first Governor Body to make rules in respect of matters relating to membership, including qualifications and disqualifications for membership of the Sammelan. Under this power, the rules framed could make 10 L1100 SupCI71 848 provision for admission of persons as members whom the original members of the Society may never have liked to admit in their Society. The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the Society. Even in the Rules actually framed, there is provision for admission of members under various classes. In addition to the persons mentioned in section 4(4) of the Act, Rule 6 proVides for membership of persons who may become Sabhapatis of the Sammelan for any annual session subsequent to the Act coming into force, and persons who may be awarded Mangala Prasad Paritoshik subsequent to the Act coming into force. Under Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to the membership of the Sammelan on payment of Rs. 1,000/ or Rs. 300/ , as the case may be. This admission to membership, according to the Rules, will be made by the new Karya Samiti to be elected under the Rules and not by the Working Committee of the original members of the Association. Further, under section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceeding 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the, Central Government from among educations of repute and eminent Hindi scholars. These 7 nominees are to be chosen by the Central Government and on becoming, members of the Governing Body, under Rule. 11 they become members of the Sammelan. Under Rule 10, educational institutions can also be admitted as Sanstha Sadasyas of the Sammelan by the new Karya Samiti and, thereupon, a representative of each of such institution has right to participate in ' proceedings of the Sammelan, exercising all the rights of a member. It will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under% the . Certain persons have been added as members by the Act and by the Rules. Admission of future members is no longer at the choice of the original members who ' had formed the Asso ciation,Persons, in whose admission as members the members of the, Society, had no hand, can become members and get the right of associating with them in the Sammelan, without the original members having any right to obecti. this is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their Working Committee. We are unable to agree with the High Court that the new Sammelan, as constituted under the Act, 849 is identical with the Society and that all the rights of forming an association, which were being exercised by members of the Society, have been kept in tact under the Act. It was argued that the right guaranteed by Article 19 (1 (c) is only to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under article 19 (1) (c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership, they had no say. Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily, implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily, admit in the Associate on. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which. takes away the membership of those who have voluntarily Joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by article 19 ( 1 ) (c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership, either chosen by the founders or regulated by rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition. , so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the, Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court though not in plain words, in the case of O. K. Ghosh and Another vs E. X. Joseph("). The Court, in that case. was considering the validity of Rule 4 (B) of the Central Civil Service,,, (Conduct) Rules, 1955, which laid down that: (1)[1963] Supp 3 S.C.R. 789. 850 "No Government servant shall join or continue to be a member of any Service Association of Government servants (a)which has not, within a period of six months from its formation, obtained the recognition of the Government under the Rules prescribed in that behalf; or (b)recognition in respect of which has been refused or withdrawn by the Government under the said Rules. " This Court held: "It is not disputed that the fundamental rights guaranteed by article 19 can be claimed by Government servants. article 33 which confers power on the Parliament to modify the rights in their application to the Armed Forces, clearly brings out the fact that all citizens including Government servants, are entitled to Claim the rights guaranteed by article 19. Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co employees are entitled to form Associations or Unions. It is clear that Rule 4 B imposes a restriction on this right. It virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said citation is withdrawn or if, after the Association is formed, no recognition is Aaccorded to it within six months. In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Government. If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association. That is the plain effect of the impugned rule. " The Court in the above passage, thus, accepted the principle that the Government servants, who may have formed an Association. could not, be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under article 19 (1) (c). The Court, of course, in that case, further proceeded 'to examine whether such a restriction on the right could be justified under 851 article 19(4) or not. That case, thus, supports our view that the right to form an Association includes the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association. This Court had also proceeded on the same basis in the case of State of Madras vs V. G. Row(1). Though this aspect was not clearly brought out in the judgment, the point, which came up for consideration, was decided on the basis that persons forming, an Association had a right under article 19 (1) (c) to see that the composition of the Association continues as voluntarily agreed to by them. That decision was given in an appeal from a judgment of the High Court of Madras reported in V. G. Row,v. The State of Madras(2). In the High Court, this principle was clearly formulated by Rajamannar, C.J., in the following words : "The word "form" therefore, must refer not only to the initial commencement of the association, but also to the continuance of the association as such. " The Act, insofar as it interferes with the composition of them Society in constituting the Sammelan, therefore, violates the right of the original members of the Society to form an association guaranteed under article 19(1) (c). Article 19(4), on the face of it, cannot be called in aid to claim validity for the Act. Under article 19(4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. It has not been contended on behalf of the respondent, nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Act was. in the interests of the sovereignty and integrity of India, or in, the interests of public order or morality. Not being protected under article 19(4), if must be held that the provision contained, in the Act for reconstituting the Society into the Sammelan is, void. Once that section is declared void, the whole Act becomes. ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the Act. In view of this position emerging in the course of argu ments, Mr. B. Sen put forward an entirely different and alter native case before us which we have mentioned earlier. position he took up was that the Act nowhere specifically lays. down that the Society small stand dissolved, while it does constitute a new Sammelan. According to him, therefore, it should (1) ; (2) A.I.R. 1951 Mad. 852 be inferred that, while the Society still continues to exist in its original form, the law has brought into existence a new Sammelan to which all the functions, properties, etc. of the Society have passed under the Act. There are three reasons why this alternative submission cannot be accepted as ensuring the validity ,of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and indepedent body in the form of a new Sammelan. Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will ,arise of the Legislative competence of Parliament to pass such :a law. Constitution of Societies is under List 11 of the Seventh Schedule. Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan, Allahabad was an institution of national importance. The institution that was declared was the Society itself. It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance There can, of course, be cases where a Society may be running a college, a school or some other like institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such In the present case, what section 2 of the Act did was to declare the Society itself as an institution of national importance, and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to, be put forward, the Act keeps that Society in tact, but deprives it of all its functions and properties and transfers them to 'a newly constituted body, viz., the Sammelan, as defined under the Aet. This Sammelan is itself a body corporate, and that Sammelan has never been declared as an institution of national importance. The only institutaion that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected, is that, if we were to hold that Parliament pased this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene article 19(1)(f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them to the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus ' deprived of all its properties by the Act. Such a law depriving the Society of its properties al 8 5 3 together cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under section 5 of the , vested in the Governing Body of the Society. The members of the Governing Body, therefore had the right to hold the property under article 19(1)(f) and they having been deprived of that property have rightly approached the Courts for redress of their grievance. In this connection counsel for the respondents relied on decision of this Court in The Board of Trustees, Ayurvedic and Unnanii Tibia College, Delhi vs The State of Delhi and Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbit College, Delhi was dissolved by the Tibbia College Act, 1952, and the property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act. The Court held that there was no violation of the fundamental rights guaranteed by article 19(1)(f) or article 31 That decision, however, proceeded on the basis that the property of the original Society registered under the had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of 1860. In these circumstances, it was held that no one could complain that his right to property under article 31 or his right to hold the property under article 19 (1) (f) had been violated by the impugned Act. In the present case, the applicability of article 19(1)(f) is being considered by us on the assumption that the old Society still exists as it was and, yet all its properties have been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act. This total deprivation of property, instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy, however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their (1) [1962] Suppl. I S.C.R. 156. 854 right to hold the property, the law cannot be justified as a reasonable restriction under article 19(5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid. As a result, the petition and the appeal are both allowed with costs. The Act is declared to be invalid, so that there will be restraint on the concerned bodies, including the Union Government, from taking or continuing any action under the Act. There will be one hearing fee. R.K.P.S. Petition and Appeal allowed.

The Hindi Sahitya Sammelan (hereinafter referred to as the Society) was a registered society founded for the development and propagation of Hindi. After a number of years of its successful working differences arose between its members and this resulted in litigation. in 1956 the Uttar Pradesh legislature passed the U.P. Sahitya Sammelan Act, under which a statutory body was created under the name of Hindi Sahitya Sammelan. This act was declared void by the Allahabad High Court as violating the freedom of association guaranteed under article 19(1)(c) of the Constitution. Thereafter, Parliament enacted the Hindi Sahitya Sammelan Act, 1962legislating under entry 63, list I of the Seventh Schedule declaringthat "the institution known as the Hindi Sahitya Sammelan is an institution of national importance". By the Act a statutory sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan. Under section 4(1) of the Act the Sammelan was to consist of the first members of the Society and all persons who might become members thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. The Act provided, for vesting in the Sammelan of all property movable or immovable, of or belonging to the society. Petitions under Article 226 in the High Court and under Article 32 in this Court were filed challenging the constitutionality of the Act mainly on the ground that the Act interfered with the right of the petitioners to form association under Article 19(1) (c) of the Constitution. The High Court held that since all the members of the society had also become members of the Sammelan under the Act, there was no infringement of the right to form association. In the appeal and in the petition under Article 32, the respondent contended that having declared the old Hindi Sabitya Sammelan, which was a society registered under the as an institution of national importance, Parliament has proceeded to legislate in respect of it under entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going inter be between the members of the society; it was for this purpose that a first Governing Body was constituted to take over the management temporarily; the Act was designed to reconstitute the Sammelan in such a manner that it could worm successfully and without difficulties; and in making provisions for this purpose all members of the old society were included as members of the Sammelan 8 4 1 so that their right to form association may not be taken away from them Alternatively the respondent took up the position that the Act no where specifically laid down that the society shall stand dissolved while it constituted a new Sammelan and therefore, it should be inferred that while the society still continued to exist in its original form the law has brought into existence a new Sammelan to which all the functions and the properties etc. of the society have been passed. Allowing the petition and the appeal. HELD : Under section 12(1) (a) very wide powers are given to the first governing body to make rules in respect of matters relating to membership including qualifications and disqualifications for membership of the Sammelan. Under this power the rules framed could make provisions for admission of persons as members whom the original members of society may never have liked to admit in their Society. The number of such new members could even be so large as to leave the original members in a small minority with the result that those members. could become totally ineffective in the society. Thus the Sammelan which has come into existence, is not identical with the Sammelan which was a registered society under the ., This is clear interference with the right to form a society which has been exercised by the members of the Society by forming the Society with its constitution under which they were members. The Act does not merely regulate the admi nistration of the affairs of the Society; what it does is to alter the composition of the society itself. The result of this change in composition is that the members, who voluntarily formed the society are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. The right to form association necessarily implies that the persons forming the society have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out or any law which takes away the membership of those who have voluntarily joined. it will be a law violating the right to form association. [847 H; 849 C E] The right guaranteed by Article 19(1)(c) cannot be confined to the initial stage of forming an association. if it were to be so confined, the right would be meaningless because as soon as an association is formed, a law may be passed interfering with its composition so that the association formed may not be able to function at all. The right can be effective only if it is held to include within, it the right to continue the association with its composition as voluntarily agreed upon by the persons forming the association. And, Article 19(4), on the face of it, cannot be called in aid to claim lidity for the Act. Therefore the provisioncontained in the Act for reconstituting the society into the Sammelan is void. The whole Act becomes ineffective in as much as the formation of the new Sammelan is the very basis for all the other provisions in the Act. [849 F H; 851 E] O.K. Ghosh and Another vs E. X. Joseph, [1963] SUppl. 3 S.C.R. 789; State of Madras vs V. G. Row, ; and V. G. Row vs The State of Madras, A.I.R. 1951 Mad. 147, referred to. The alternative submission cannot be accepted as ensuring the validity of the Act. First, the specific case taken by the respondent has been, that the Actreconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan. Secondly, even if it be acceptedthat a new Sammelan has been constituted, the question of 842 legislative competence of Parliament to pass such a law will arise. The Sammelan is itself a body corporate and that Sammelan has never been declared as an institution of national importance. The only institution that was so declared was the society which, of course, earlier carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which at no stage has been declared as an institution of national importance. Thirdly, if it were to be held that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19(1)(f) of the Constitution. The Sammelan is a new, separate and distinct legal entity from the Society. The Society is thus deprived of all its properties by the Act and such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the society to hold the property. The applicability of Article 19(1(f) is on the assumption that the old Society still exists as it was and yet its properties have been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested. The Act thus deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society of its property cannot clearly be justified as a reasonable restriction in public interest. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as reasonable restriction under Article 19(5). [852 B H; 853 E 854 A] The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi vs The State of Delhi & Anr. [1962] Suppl. I S.C.R. 156; referred to.

Appeal No. 299 of 1964. Appeal from the judgment and order dated September 26, 1961 of the Allahabad High Court in Second Appeal No. 620 of 1957. J. P. Goyal, for the appellants. B. C. Misra, for the respondent No. 1. April 15, 1964. The judgment of the Court was delivered by HIDAYATULLAH, J. In this appeal by certificate from the High Court of Judicature at Allahabad the appellants are the four original defendants in a suit for pre emption filed by the first respondent. Kaiseri Begam (respondent No. 2) sold a plot and two houses in mohalla Gher Abdul Rahman Khan, 757 Qasba Milak, Tehsil Milak, District Rampur, to the appel lants on December 4, 1953. The first respondent Labh Singh owned the adjacent house and he claimed pre emption on the ground of vicinage after making the usual demands. The suit was filed by Labh Singh in the court of Munsif, Rampur who by his judgment dated September 25, 1955 held that there was a general custom of pre emption in the town of Milak. He also held that Labh Singh was entitled to preempt and had performed the Talabs. He, however, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between Labh Singh 's house and the property sold. He made no order about costs. There was an appeal by Labh Singh and the present appellants objected. The District Judge, Rampur allowed the appeal and dismissed the cross objections. The appellants then filed a second appeal in the High Court of Allahabad. Mr. Justice V. D. Bhargava, who heard the appeal, referred the following question to a Division Bench: "Whether after coming into operation of the right of pre emption is contrary to the provisions of article 19(1)(f) read with article 13 of the Constitution, or is it saved by clause (5) of article 19? " The Divisional Bench held that the law relation to pre emp tion on the ground of vicinage was saved by clause (5) of article 19 and was not void under article 13 of the Constitution. In view of this answer, the second appeal was dismissed. The High Court, however, certified the case and the present appeal has been filed. The question which was posed by Mr. Justice V. D. Bhargava was considered by this Court in connection with s.10 of the Rewa State Pre emption Act, 1946 in Bhau Ram vs B. Baijnath Singh (1). This Court held by majority that the law of pre emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by article 19(1)(f) of the Constitution and was void. It was pointed out that it placed restrictions both on the vendor and on the vendee and there was no advantage to the general public and. that the only reason given in support of it, that it prevented persons belonging to different religions, races or castes from acquiring property in any area peopled by persons of other religious, races or castes, could not be considered reasonable in view of article 15 of the Constitution. If this ruling applies the present appeal must succeed. Mr. B. C. Misra, who appears for Labh Singh attempts to distinguish Bhau Ram 's case(1). He contends that the earlier case was concerned with a legislative measure whereas the. (1) [1962] Supp. 3 S.C.R. 724. 758 present case of pre emption arises from custom. He refers to the decision in Digambar Singh vs Ahmad Said Khan(1) where the Judicial Committee of the Privy Council has given the early history of the law of pre emption in village com munities in India and points out that the law of pre emption had its origin in the Mohammedan Law and was the result, some times, of a contract between the sharers in a village. Mr. Misra contends that articles 14 and 15 are addressed to the State as defined in article 12 and are not applicable to custom or contract as neither, according to him, amounts to law within the definition given in article 13(3)(b) 'of the Consti tution. He submits that the ruling of this Court does not cover the present case and that it is necessary to consider the question of the validity of the customary law of pre emption based on vicinage. It is hardly necessary to go into ancient law to discover the sources of the law of pre emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Ram 's case(2 ) decides that a law of pre emption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly article 19(1)(f). Mr. Misra ingeniously points out in this connection that article 13(1) deals with "all laws in force" and custom is not included in the definition of the phrase "laws in force" in clause (3)(b) of article 13. It is convenient to read article 13 at this stage: "13.(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise re requires, (a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "law in force" includes laws passed or made by a Legislative or other competent authority in the territory of India before the commencement of this Constitution and not previously (2) [1962] Supp. 3 S.C.R. 724. (1) L.R. 42 I.A. 10, 18. 759 repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. " The argument of Mr. Misra is that the definition of "law" in article 13(3)(a) cannot be used for purposes of the first clause, because it is intended to define the word "law" in the second clause. According to him, the phrase "laws in force" which is used in clause (1) is defined in (3)(b) and that definition alone governs the first clause, and as that definition takes no account of customs or usage, the law of pre emption based on custom is unaffected by article 19(1)(f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that the definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. in other words, laws, which were not in operation, though on the statute book, were included in the phrase "laws in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such ways that none of the things mentioned in the, first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the State and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "custom or usage", would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the Constitution and the determination of this Court in Bhau Ram 's case(1). The appeal will be allowed but in the circumstances of the case parties will bear their costs throughout. Appeal allowed.

In a suit filed by the respondent, the Munsif though holding that there was a general custom of pre emption in the locality and that the respondent had a right to pre empt, under that custom, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between the respondent 's house and the property sold. The respondent 's appeal was allowed by the District Judge. The appellants appealed to the High Court which was unsuccessful because of the answer of the Division Bench to which the question was referred. The Division Bench held that the law relating to pre emption on the ground of vicinage was saved by article 19(5) and was not void under article 13 of the Constitution. The appellant relied on the decision of this Court in Bhau Ram vs Baijnath and claimed that pre emption on the ground of vicinage could not be claimed. The respondents in reply contended (a) that Bhau Ram 's case was concerned with a legislative measure whereas the present case arose from custom and was thus distinguishable and (b) that article 13(1) dealt with "all laws in force" and custom was not included in the definition of the phrase "laws in force" in cl. (3)(b) of article 13. Held: (i) In so far as statute law is concerned Bhau Ram 's case decides that a law of pre emption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. Bhau Ram vs B. Baijnath Singh, [1962] Supp. 3 S.C.R. 724, followed. Digambar Singh vs Ahmad Said Khan, L.R. 42 I.A. 10, referred to. (ii) Custom and usage having in the territory of India the force of law are included in the expression "all laws in force".

tition (Civil) No. 1129 of 1977 Under Article 32 of the Constitution of India. R. Sharma and Dalveer Bhandari for the Petitioner. B.Datta Additional Solicitor General, Ms. A.Subhashini, A.K. Goel, T.V.S.N. Chari, R.K. Jain, Dr. N.M. Ghatate, D.N. Mishra and H.S. Parihar for the Respondents. The Judgment of the Court was delivered by DUTT, J. In this writ petition the petitioner, Panipat Woollen & General Mills Co. Ltd., hereinafter referred to as 'the Company ', has challenged the taking over of the management of its two textile mills under the Sick Textile Undertakings (Taking over of Management) Act, 1972 (for short 'Take over Act ') and also the constitutional validity of the Take over Act and the Sick Textile Undertakings (Nationalisation) Act, 1974 (for short 'the Nationalisation Act '). It appears that the Company had falled on evil days resulting in initiation of liquidation proceedings against the Company and the 940 appointment of a provisional liquidator. The mills of the Company were closed sometime in May, 1972. On the application by the Industrial Finance Corporation of India, the Punjab & Haryana High Court directed the Board of Directors of the Company to hand over possession of the two mills to the Corporation to which the Company was indebted for a huge sum of money. The Corporation was also directed by the High Court to lease out the mills, and it appears that Padmashree Textile Industries Ltd. was granted the lease of the mills, that is to say, the textile undertakings of the Company. At this stage, it may be mentioned that the lessee, the said Padmashree Textile Industries Ltd., also filed a writ petition before this Court, inter alia, challenging the Take over Act and the Nationalisation Act. That writ petition has since been disposed of by this Court upon settlement between the parties. Section 4(1) of the Take over Act provides that on or before the appointed day, the management of the sick textile undertakings specified in the First Schedule shall vest in the Central Government. Under Section 2(a) "appointed day" means 31st day of October, 1972. Section 2(d) defines "sick textile undertaking" as follows: "section 2(d). "sick textile undertaking" means the textile undertaking which falls within one or more of the following categories, namely: (i) which is owned by a textile company which is being wound up, whether voluntarily or by or under the supervision of any Court, or in respect of which a provisional liquidator has been appointed by a Court, (ii) which had remained closed for a period of not less than three months immediately before the appointed day and the closure of which is prejudicial to the textile industry, and the condition of the undertaking is such that it may, with reasonable inputs, be re started in the interests of the general public, (iii) which has been leased to Government or any other person or the management of which has been taken over by Government or any other person under any leave or licence granted by any Receiver or Liquidator by or under the orders of, or with the approval of, any Court, 941 (iv) the management of which was authorised by the Central Government, by a notified order made under section 18A, or in pursuance of an order made by the High Court under section 18FA, of the Industries (Development and Regulation) Act, 1951, to be taken over by a person or body of persons, but such management could not be taken over by such person or body of persons, before the appointed day, (v) the management of which ought to be [according to the report made after investigation by any person or body of persons appointed after the 1st day of January, 1970, under section 15 or section 15A of the Industries (Development and Regulation) Act, 1951] taken over under section 18A of that Act, but in relation to which no notified order authorising any person or body of persons to take over the management of such undertaking was made before the appointed day, (vi) in respect of which an investigation was caused to be made, before the appointed day, by the Central Government under section 15 or section 15A of the Industries (Development and Regulation) Act, 1951, and the report of such investigation was not received by the Central Government before the appointed day; and includes any textile undertaking which is deemed, under sub section (2) of section 4, to be a sick textile undertaking;" In view of sub clause (i) of section 2(d), as a provisional liquidator was appointed in respect of the textile undertakings of the Company, they were sick textile undertakings. Moreover, the sick textile undertakings of the Company have been specified in the First Schedule to the Take over Act and by virtue of section 4(1) of the Take over Act, the undertakings of the Company have vested in the Central Government as sick textile undertakings. It is vehemently urged by Mr. Sharma, learned Counsel appearing on behalf of the petitioners, that before actually taking possession of the undertakings of the Company, the Company should have been given an opportunity of being heard. It is submitted that if such an 942 opportunity had been given, the Company could have shown that its undertakings were not sick undertakings. Counsel submits that the intention of the Legislature to give such an opportunity of being heard is apparent from the provisions of clauses (iv), (v) and (vi) of section 2(d) of the Take over Act which relate to the taking over of manage ment of an undertaking under the Industries (Development and Regulation) Act, 1951. In support of this contention, the learned Counsel has placed reliance upon three decisions of this Court in A. K. Kraipak & Ors. vs Union of India & Ors. , , Maneka Gandhi vs Union of India, [1978] 2 SCR 621, and Smt. Indira Nehru Gandhi vs Shri Raj Narain, In our opinion, none of the above decisions is applicable to the facts and circumstances of the instant case. In the First Schedule to the Take over Act, the undertakings of the Company have been specified as sick textile undertakings. In other words, the Legislature has itself decided the undertakings of the Company to be sick textile undertakings. Indeed, in the First Schedule all the sick textile undertakings have been specified. Thus, it is apparent that the Legislature has not left it to the Executive to decide whether a particular textile undertaking is a sick textile undertaking or not. If under the Take over Act the question whether a textile undertaking is a sick textile undertaking or not had been directed to be decided by the executive authorities, the owner of such undertaking could claim an opportunity of being heard. But when an undertaking has been specified in the First Schedule to the Take over Act as a sick textile undertaking, the question of giving an opportunity to the owner of the undertaking does not at all arise. We are unable to accept the contention of the petitioners that sub clauses (iv), (v) and (vi) of section 2(d) indicate that principles of natural justice should be complied with. The provisions of these sub clauses are some of the categories under any one of which the undertaking may fall and, in that case, it will be a sick textile undertaking. There is, therefore, no substance in the contention made on behalf of the petitioners that the Company should have been given an opportunity of being heard before the management of its undertakings was taken over as sick textile undertakings. It is next urged by the learned Counsel for the petitioners that the Legislature having itself decided the question whether an under taking is a sick textile undertaking or not without giving any opportunity to the owner of such undertaking to make a representation, has damaged the basic structure of the Constitution of India, namely, 943 separation of power between the Legislature, the Executive and the Judiciary. Our attention has been drawn to the observations made by Sikri, CJ, in Kesavananda Bharati vs State of Kerala, [1973] 2 Supp. SCR 1, and that of Mathew, J, in Smt. lndira Nehru Gandhi vs Shri Raj Narain, at page 503 to the effect, inter alia, that separation of powers among the Legislature, the Executive and the Judiciary, is one of the basic structures of the Constitution. It is, accordingly, submitted on behalf of the petitioners that the doctrine of separation of powers implies that the Legislature should define civil or criminal wrong or a default and create an independent machinery, judicial or quasi judicial, to determine the liability of the status of an individual. Further, the Legislature itself cannot give a judgment and, in any case, if such a judgment is given by the Legislature, it must act in accordance with the principles of natural justice. The above submissions of the petitioners, in our opinion, are misconceived. There can be no doubt that in respect of each sick textile undertaking, a Take over Act and a Nationalisation Act could be passed and, in that case, a large number of enactments would come into existence to the inconvenience of all concerned. In order to avoid such cumbersome course and for the sake of convenience, the Legislature has mentioned in the First Schedule in both the Take over Act and the Nationalisation Act the names of all sick textile undertakings in the country. By including certain textile undertakings as sick textile E undertakings in the First Schedule to the Take over Act, the Legislature has not made any judicial or quasi judicial determination, nor has the Legislature given any judgment, as contended on behalf of the petitioners, although such inclusion is sometimes loosely expressed as 'legislative judgment '. In section 2(d), the Legislature has laid down the criteria for a sick undertaking. The sick textile undertakings have been specified in the First Schedule on the basis of the tests laid down in section 2(d). In including the sick textile undertakings in the First Schedule, the Legislature has not acted arbitrarily, for, it has also laid down the criteria or tests for such inclusion. If any undertaking which has been so specified in the First Schedule does not satisfy the tests under section 2(d) of the Take over Act, the owner of it is entitled to t challenge such inclusion or take over in a court of law, although such challenge has to be founded on a strong ground. Thus, there is no finality or conclusiveness in the legislative determination of an under taking as a sick textile undertaking. Such determination is neither judicial nor quasi judicial. Therefore, the question of damaging or altering the basic structure of the Constitution, namely, separation of 944 powers among the Legislature, the Executive and the Judiciary, does not at all arise. So also the question of the validity of the constitutional amendments by which the Take over Act and the Nationalisation Act have been included in the Ninth Schedule on the ground that by such amendments the basic structure of the Constitution is damaged, as contended on behalf of the petitioners, does not arise. The contentions are misconceived and are rejected. As a last resort, the petitioners have challenged the validity of the Nationalisation Act on the ground of inadequacy of compensation. The Company had two undertakings, namely, Panipat Woollen Mills and Kharar Textile Mills. In the third column of the First Schedule to the Nationalisation Act, a sum of Rs. 6,40,000 has been specified for the Panipat Woollen Mills and a sum of Rs. 12,89,000 has been specified for the Kharar Textile Mills by way of compensation for the acquisition of these two undertakings. It is the contention of the petitioners that the amounts of compensation, which have been specified for the acquisition of these two undertakings, are inadequate. We are afraid, as on the date the Nationalisation Act had come into force, Article 31 of the Constitution was not repealed, the validity of the Nationalisation Act cannot be challenged on the ground of inadequacy of compensation. In Minerva Mills Ltd. & Ors. vs Union of India & Ors., Writ Petition Nos. 356 361 of 1977, decided on September 9, 1986, it has been already held by us that the Nationalisation Act gives effect to the policy of the State towards securing the ownership and control of the material resources of the community which are so distributed as best to subserve the common good, as contained in Article 39(b) of the Constitution. In the circumstances, the Nationalisation Act falls within the provision of Article 31C of the Constitution before it was amended by the Constitution (Forty Second Amendment) Act, 1976. Even assuming that the Nationalisation Act violates the provision of Article 31, no challenge to its validity can be made on that ground. Apart from that, we are of the view that the compensation that has been awarded to the Company is neither inadequate nor illusory as contended on behalf of the petitioners. It is not in dispute that the paid up share capital of the Company was Rs.60 lakhs and it paid dividend up to 1965. Thereafter, the Company did not pay any dividend from 1965 to 1970. It will not be unreasonable to presume that in specifying the compensation, the Legislature has taken these facts into consideration. There is, therefore, no substance in the contention of the petitioners that the compensation specified in First Schedule to the Nationalisation Act in respect of the undertakings of 945 the Company is illusory. The contention is rejected. No other point has been urged on behalf of the petitioners. For the reasons aforesaid, the writ petition is dismissed and the rule nisi is discharged. There will, however, be no order as to costs. M.L.A. Petition dismissed.

The appellant 's special leave petition against the award of the Labour Court dated March 11, 1983 granting relief to its employee respondent No. 3, was dismissed by a non speaking order. In the said proceedings, respondent No. 3 had also been represented by a counsel. Thereafter, the appellant approached the High Court by preferring a writ petition under article 226 of the Constitution seeking to quash the aforesaid award of the Labour Court. The High Court admitted the writ petition and granted interim stay of enforcement of the award. The third respondent unsuccessfully challenged the aforesaid interim order by a special leave petition. Subsequently when the main writ petition came up for final hearing before the Division Bench of the High Court, the third respondent again raised a preliminary objection as to the maintainability of the writ petition. The High Court upheld the preliminary objection and dismissed the writ petition holding (i) that the dismissal in limine by the Supreme Court of the special leave petition filed by the appellant against the award by the non speaking order precluded the appellant from challenging the said award before the High Court; (ii) that the doctrine of election was applicable to the case and the appellant having chosen the remedy of approaching the y superior court and failed in that attempt, he could not thereafter resort to the alternative remedy of approaching the High Court for relief under Article 226 of the Constitution; and (iii) that the writ jurisdiction 554 of the High Court under article 226 of the Constitution being essentially discretionary in nature, it will be a sound exercise of the court 's discretion to refuse relief in such a situation. Allowing the appeal and remanding the case to the High Court for disposal on merits, ^ HELD: 1.(i) The view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. The dismissal by Supreme Court of the special leave petition of the appellant by a non speaking order did not operate as a bar against the appellant in the matter of challenging the impugned award of the Labour Court by resort to proceedings before the High Court under article 226 of the constitution. [560D E] 1.(ii) The effect of the non speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave should be granted. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork. [558C G] Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust and Another, ; and Ahmedabad Manufacturing & Calico Printing Company Ltd. vs Workmen and Anr, ; , relied upon Wilson vs Colchester Justices, (1985) Vol. 2 All England Law Reports at page 97, referred to. 2. It is not the policy of the Supreme Court to entertain special 555 leave petitions and grant leave under article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved and there is manifest injustice resulting from the impugned order or judgment. Moreover, having regard to the very heavy backlog of work in the Supreme Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of the Supreme Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under article 226 of the Constitution. In such cases also special leave petitions are quite often dismissed only by passing a non speaking order and it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under article 226 of the Constitution on the sole ground of dismissal of special leave petition. [559A E] Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust and Another, ; and Ahmedabad Manufacturing & Calico Printing Company Ltd. vs Workmen and Anr, ; , followed. The doctrine of election referred to by the High Court has no application at all to the present situation. [560F] Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat, ; , distinguished. The grant of leave under article 226 of the Constitution is undoubtedly in the discretion of the High Court but the exercise of that discretionary Jurisdiction is to be guided by established legal principles. It will not be a sound exercise of that discretion to refuse to consider a writ petition on its merits solely on the ground that a special leave petition filled by the petitioner in the Supreme Court had been dismissed by a non speaking order. [561A B]

ivil Appeal No. 1259 of 1990. From the Judgment and Order dated 6.10.1989 of the Andhra Pradesh Administrative Tribunal in R.P. No. 2403 of 1987. Dr. L.M. Singhvi and Y.P.Rao for the Appellants. P.P. Rao, K. Madhava Reddy, Ms. Rani Chhabra, T.V.S.N. Chari and B. Rajeshwar Rao for the Respondents. The Judgment of the Court was delivered by K. RAMASWAMY, J. 1. Special leave granted. This appeal under Article 136 is against the order dated October 6, 1989 made in R.P. No. 2403 of 1987. The facts are as under: 2. The respondents Nos. 4 & 5, B. Kumara Swamy and G. Amarender, in this appeal filed R.P. No. 1615 of 1984 before the Andhra Pradesh Administrative Tribunal, Hyderabad, contending for promotion from Senior Assistant to Assistant Commercial Taxes Officer, zonal seniority of Warangal local area comprising of Warangal, Khammam, Karimnagar and Adila bad is the criteria. The Adilabad division consisting of Adilabad and Karimnagar Districts of the Commercial Taxes Division cannot be treated to be a zone and the divisional seniority prepared by the department is bad in law. It was held by the Tribunal by order dated February 18, 1986, that the zonal seniority is the criteria. Though, for the admin istrative convenience a division consisting of the revenue districts of Adilabad and Karimnagar may be treated as one division and Warangal and Khammam as Warangal division may be carved out, for the purpose of promotion zonal seniority has to be maintained. Accordingly, the Tribunal allowed the Representation Petition. The Government of Andhra Pradesh in exercising its power under cl. (5) of article 371 D annulled that order which had given rise to filing of W.P. No. 998 of 1986 in this Court under article 32 of the Constitution. This Court declared cl. (5) of article 371 D of the Constitution as ultra vires violating the basic structure. The State Govern ment filed S.L.P. No. 8868 of 1987 against order in R.P. No. 1615 of 1984 which was dismissed by this Court on December 7, 1987. Subsequently, the petitioners impleading the 566 respondents Nos. 4 and 5 and the 6th respondent, G. Satya Rao, filed R.P. No. 2403 of 1987, which was dismissed by the Tribunal. The appellants filed Civil Appeal No. 3203 of 1989 which was allowed by this Court and remitted to the Tribunal and directed, "to examine the legal effect of the Government order in G.O.Ms. No. 1648 dated November 20, 1982 after again hearing the parties. " Thereafter, the Tribunal after considering the effects of the G.O. held that in the im pugned order that G.O.Ms. No. 1648 was issued under Para 5(2)(c) of the Andhra Pradesh Public Employment (Organisa tion of Local Cadres and Regulation of Direct Recruitment) Order 1975 for that "the 'order ' no allotment of cadre in terms of para 4 of the order was issued. The G.O.Ms. No. 1648 and G.O.Ms. No. 1900 do not mention the constitution of new local cadre for Adilabad Division and no order was issued constituting a separate cadre in terms of 'the or der '. Accordingly, it reiterated the original order dated April 29, 1988. The Constitution (Thirtysecond Amendment) Act, 1973 through section 3 thereof brought into the Constitution article 371 D with effect from July 1, 1974. This is a special provision in respect of the State of Andhra Pradesh empower ing the President, having regard to the requirements of the State as a whole for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of educa tion, and different provisions may be made for various parts of the State to make an order, in particular (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accord ance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised; (b) specify any part or parts of the State which shall be regarded as the local area (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government . . (Other clauses are not relevant for the purpose of this case, Hence omitted.) 567 4. In exercise of the power under cl. (1) & cl. (2) of article 371 D the President issued 'the order ' in G.S.R. No. 524 E dated October 18, 1975 which was notified through G.O.Ms. No. 674 dated October 20, 1975. Para 2(1)(c) inter pretation clause defines 'local area ' in relation to local cadre thus: " 'local area ', in relation to any local cadre, means the local area specified in paragraph 6 for direct recruitment to posts in such local cadre, and includes, in respect of posts belonging to the category of Civil Assistant Surgeons, the local area specified in sub paragraph (5) of paragraph 8 of this Order. " Para 2(1)(e) defines 'local cadre ': " 'local cadre ' means any local cadre of posts under the State Government organised in pursuance of paragraph 3, or constituted otherwise, for any part of the State. " Para 2(1)(m) defines 'zone ': " 'zone ' means a zone specified in the Second Schedule com prising the territories mentioned therein. " Para 3(1) provides organisation of local cadres: "The State Government shall, within a period of twelve months from the commencement of this Order, organise classes of posts in the civil services of, and classes of civil posts under, the State into different local cadres for different parts of the State to the extent, and in the manner, hereinafter provided. " The proviso thereto was added and was published through G.O.Ms. No. 34G.A.(SPF. A.) Deptt. dated January 24, 1981, which reads thus: "Provided that, notwithstanding the expiration of the said period, the President may by order, require the State Gov ernment, whenever he considers it expedient so to do, to organise any classes of posts in the civil services of, and classes of civil posts under, the State into different local cadres for different parts of the State. " (emphasis supplied) 568 Sub paragraph (2) provides that the posts belonging to the category of lower division clerk, (now redesignated as Junior Assistant), and to each of the other categories equivalent to, or lower than that of a lower division clerk, in each department in each district shall be organised into a separate cadre. Sub paragraph (3) provides the posts belonging to each non gazetted category, other than those referred to in sub paragraph (2), in each zone shall be organised into a separate cadre. Sub paragraph (4) provides, the post belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre. Paragraph 3(5) with a non obstanti clause provides that: "Notwithstanding anything contained in sub paragraphs (3) and (4), the State Government may where it considers it expedient so to do and with the approval of the Central Government organise the posts belonging to any of the cate gories referred to therein, in any department, or any estab lishment thereof, in two or more contiguous zones into a single cadre. " Sub paragraph (6) is not material. Hence omitted. Sub paragraph (7) provides: "In organising a separate cadre in respect of any category of posts in any department for any part of the State, noth ing in this Order shall be deemed to prevent the State Government from organising or continuing more than one cadre in respect of such category in such department for such part of the State." Paragraph 3(8) is also not necessary. Hence omitted. (emphas is supplied) Paragraph 4 provides mode of allotment of persons, holding posts required to be organised into local cadres in accordance with the principles and procedure laid down therein, the details of which are not material. Hence omit ted. Paragraph 5 declares that: "(1) Each part of the State, for which a local cadre has been organised, in respect of any category of posts, shall be 569 a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of posts." (Other sub paragraphs relate to transfer of persons and are not relevant for the purpose of this case. Hence omitted.). Paragraph 6 deals with local areas: (1) Each district shall be regarded as a local area (i) for direct recruitment to posts in any local cadre under the State Government comprising all or any of the posts in any department in that district belonging to the category of a lower division clerk or to any other category equivalent to or lower than that of a lower division clerk (Junior Assistant): (ii) for direct recruitment to posts in any local authority within that district, carrying a scale of pay, the minimum of which does not exceed the minimum of the scale of pay of a lower division clerk or a fixed pay not exceeding that amount. (2) Each zone shall be regarded as a local area the details of which are not material. Hence omitted. (emphasis supplied) In the Table 'Local area and the ratio ' in the Schedule, the State of Andhra Pradesh was divided into seven zones and zone V consists of the revenue districts of Adilabad, Karim nagar, Warangal and Khammam. Instructions have been issued for implementation of the order through G.O.Ms. No. 728 dated November 1, 1975, in organising the local cadres. Para 3 thereof postulates, after quoting paragraph 3(1) of the order referred to hereinbefore, thus: "A local cadre is a cadre comprising the posts belonging to a category in a Department and located within a specified part of the State. The concept of the local cadre is thus related to the concept of the unit of appointment under the service rules; the part of the State for which a local cadre is organised in respect of any category will serve as a unit of appointment etc., for that category. The scheme of organ isation of local cadres under,the Presidential Order applies generally to all non gazetted categories, other than those 570 specifically exempted under Government of India Notification G.S.R. No. 529, (E), dated 18th October, 1975 issued under paragraph 3(8) of the Order, as also to the specified gazet ted categories, i.e., the gazetted categories listed in the Third Schedule to the Order and those that may be notified in pursuance of paragraph 2(i)(j) of the Order by the Cen tral Government. Instruction 4(a) says that the lower division clerks or equivalent categories or lower than that were designated as a District Cadre. Posts belonging to other non gazetted categories were designated as zonal cadre and specified gazetted cadres were also designated as zonal cadres. In struction7 provides thus: "More than one Local Cadre permissible within Local Area It should be borne in mind that where the State Government is required to organise a local cadre for any part of the State, there is no objection to organising or continuing more than one local cadre for such part of the State (vide paragraph 3(7) of the order). There is, therefore, no objec tion to having more than one cadre in Revenue District in respect of a post belonging to the category of Lower Divi sion Clerk (Junior Assistant) or below or to having more than one cadre in a zone in respect of a higher category." (emphasis supplied) Instruction 9(e) provides re adjustment of territorial jurisdiction, thus: "In several departments, the unit of appointment in respect of non gazetted categories is linked to the territorial jurisdiction of an authority or officer subordinate to the Head of Department. For instance, the unit of appointment of Upper Division Clerks (Senior Assistants) in the Commercial Taxes Department is the division in charge of Dy. Commis sioner. In the case of such departments if it becomes neces sary to alter the units of appointment in order to bring them into conformity with the Presidential Order, a corre sponding adjustment in the territorial jurisdiction of the departmental authority may also become necessary and will have to be made . " 571 6. Thus, it is seen that pursuant to the power given under cls. (1) & (2) of article 371 D the President had issued the order organising local cadres and zone V consists of Adilabad, Warangal, Karimnagar and Khammam revenue dis tricts. It is the local area for the local cadres. The post of the Junior Assistant is the district cadre post and the post of Senior Assistant and Assistant Commercial Taxes Officers, etc. are the zonal posts. The State Government is empowered under the Presidential Order to organise the local cadres within a period of twelve months from October 20, 1975. In pursuance thereof the State Government in Commer cial Taxes Department issued order G.O.Ms. No. 581 dated May 24, 1976 organising zones for the purpose of Commercial Taxes Department, namely, Visakhapatnam, Kakinada, Krishna, Guntur, Triputhi, Karnool, Warangal, Hyderabad 1 and Hydera bad II. Warangal zone consists of revenue districts of Adilabad, Karimnagar, Warangal and .Khammam. Thus, the Warangal zone of Commercial Taxes Department for the purpose of recruitment, seniority, promotion, transfer, etc. of local cadres is co terminus with the zone V of the Presiden tial Order. The Junior Assistant in each revenue district in Warangal zone is a separate district post, .but for the purpose of promotion to the post of Senior Assistants and Assistant Commercial Taxes Officers, which are zonal posts common seniority of the Junior Assistants, Senior Assistants working in all the four revenue districts shall have to be maintained and promotions made in accordance with Ministeri al Service Rules or the Commercial Taxes Subordinate Service Rules issued under proviso to article 309 of the Constitution as the case may be. It would be subject to rule of reserva tion for local candidates as adumbrated in para 8 of the Order and the general rule of reservation made in Rule 22 in Andhra Pradesh State and Subrodinate Service Rules. It would appear from the record that the Government intended to reorganise, for the purpose of efficient admin istration of the Commercial Taxes Department and create separate divisions within the zones and issued through G.O.Ms. No. 1900 dated December 22, 1981 carving out Adila bad and Karimnagar as Adilabad division and Warangal and Khammam as Warangal division with the administrative control of the concerned Dy. Commissioner of Commercial Taxes at Adilabad and Warangal. As a follow up action options have been called for from the employees and they have been allot ted in G.O.Ms. No. 1648 dated November 22, 1982 to the respective divisions. It is not disputed that the allotment and transfer were not made in terms of Para 4 of the Order. As stated earlier this action had given rise to the above Representation Petitions and the orders passed by the Tribu nal and the results ensued thereunder. 572 8. Dr. L.M. Singhvi, the learned Senior Counsel for the appellants, contends that paragraph 3(7) of the Order empow ers the State Government to create a zone within the Waran gal zone for the purpose of recruitment, seniority and promotion. The State Government has inherent power in that regard. There is no express prohibition in that regard in the order. The phrase 'or constituted otherwise ' engrafted in the definition of local cadre in paragraph 2(e) read with paragraph 3(7) gives ample power to the State Government to organise any local cadre within the zone for the Commercial Taxes Department. The action thus, taken by the State Gov ernment is clearly within its power. The contra finding recorded by the Tribunal is illegal. He placed strong reli ance on a decision of a single member Tribunal made in R.P. No. 101 of 1982 and batch dated April 1, 1982. He further contended that in maintaining harmony in Centre State rela tionship, the State Government shall continue to have its inherent power to organise its local cadre to meet the exigencies of its administrative needs. The prior approval or concurrence of the Central Government is redundant. We find no force in these contentions. It is already seen that in exercise of the power under paragraph 3(1) of the Order the State Government shall, within a period of twelve months from the date of the commencement of the Order, organise class or classes of posts in the civil services of, and class or classes of civil posts, under the State into dif ferent local cadres for different parts of the State in the manner therein provided. It is already seen that through G.O.Ms. No. 581, the State Government in fact had organised the Commercial Taxes Departments by constituting different local cadres and Warangal zone comprised of the four revenue districts, namely, Adilabad, Karimnagar, Khammam and Waran gal was declared as local area for local cadres of the Department. Having done so, the question emerged whether the State Government has further power to reorganise the local cadre within the zone. In our considered view, we have no hesitation to hold that once the State Government has orga nised the class or classes of posts in the civil services of and class or classes of civil posts, under the State as local cadres, it ceases to have any power to bifurcate or reorganise a zone within a zone, cadre or cadres therein. In exercise of the power under proviso to paragraph 3(1), it is for the President notwithstanding the expiry of the period of twelve months prescribed in sub paragraph (1) of para graph 3, by an order require the State Government whenever he considers it expedient so to do to have the power under paragraph 3(1) exercised. Thereby, it is clear that the State Government shall have to place necessary material before the President; the President shall consider that it is expedient to organise any class or classes of 573 posts in the civil services of and class or classes of civil posts, under the State into a further local cadre within the local cadre in the zone already prescribed and to pass an order in that regard requiring the State Government to so organise it. It is made clear that for the purpose of effi cient administration or convenience, the State Government may create division/divisions within the local area or local cadre. But for the purpose of recruitment, seniority, promo tion, discharge, etc. the local cadre once organised under para 3(1) shall be final and continue to be operative until action is taken under proviso to subparagraph (1) of para graph 3 of the Order. When we enquired the learned counsel for the State, Shri Madhava Reddy candidly conceded that no order of the President, as provided under the proviso, was made. Therefore, the action taken by the State Government in issuing G.O.Ms. No. 1648 dated November 20, 1982 is clearly illegal and invalid contravening the proviso to sub para graph (1) of paragraph 3, undoubtedly it contravened para 4 of the Order. It is seen that the order was made pursuant to the power given to the President under article 371 D, which is a special provision made under the Constitution (Thirty second Amendment) Act, 1973 peculiar to the State of Andhra Pradesh due to historical background. Therefore, the State Govern ment have no inherent power in creating a zone or organising local cadre within the zones except in accordance with the provisions made in the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation for Direct Recruitment) Order. It is true that the clause 'or consti tuted otherwise ' defined in paragraph 2(e) is of wide im port, but is only relatable to the power given by the Presi dent to the State Government to organise local cadre. Para graph 3(1) is the source of that power, but the exercise thereof is hedged with a limitation of twelve months from the date of the commencement of the Order. Therefore, the power to organise class or classes of posts of civil serv ices of, and class or classes of civil posts, under the State into different local cadres should be exercised by the State Government in accordance with para 3(1) before the expiry of the twelve months from October 20, 1975. If the .exercise of the power is not circumscribed within limitation, certainly under General Clauses Act the power could be exercised from time to time in organising local cadres to meet the administrative exigencies. The prescrip tion of limitation is a fetter put on the exercise of power by the State Government. Obviously, realising this reality and the need to organise local cadres, subsequent thereto the amendment was made and was published in G.O.Ms. No. 34 G.A. dated January 24, 1981 introducing proviso to Paragraph 3(1). Thereunder, notwithstanding the expiry of the said period, the President alone has been given power 574 to organise local cadres in respect of class or classes of posts in civil services of and class or classes of civil posts, under the State. That too subject to the conditions precedent laid therein. Thus, it is the President and the President alone has been given power under proviso by an order to require the State Government to organise the local cadres in relation to any class or classes of posts in the civil services of and class or classes of civil posts under the State into different local cadres. It could be consid ered in yet another perspective. Para 2(e) indicates that President himself may create a local cadre instead of re quiring the State Government to organise local cadre. For instance, Para 3(6) empowered the President to create local cadre for the city of Hyderabad. Similarly, under proviso to para 3(1) the President may require the State Government to create a local cadre within a zone. So the phrase 'or con stituted otherwise ' cannot be understood dehorse the scheme of the Presidential order. No doubt in common parlence, the word 'otherwise ' is of 'wide ' amplitude. This Court in Kochuni vs States of Madras & Kerala, ; , Subba Rao, J., as he then was, speaking per majority in paragraph 50 while construing the word 'otherwise ' held that it must be confined to things analogous to right or contract such as lost grant, immemorial user etc. The Word 'other wise ' in the context only means whatever may be the origin of the receipt of maintenance. The ratio thereunder cannot be extended in the contextual circumstances obtainable on the facts in this case. Similarly, in Lilavati Bai vs The State of Bombay, ; at 735, Sinha J., as he then was, speaking for the Constitution Bench interpreting Expla nation (a) to section 6 of Bombay Land Requisition Act, 1948, as amended in 1950 and repelling the application of ejusdem generis doctrine laid the law thus: "The legislature has been cautious and thorough going enough to bar all avenues of escape by using the words 'or other wise '. These words are not words of limitation but of exten sion so as to cover all possible ways in which a vacancy may occur. Generally speaking a tenancy is terminated by acts of parties or by operation of law or by eviction by the land lord or by assignment or transfer of the tenant 's interest. But the legislature, when it used the words 'or otherwise ', apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example a case where the tenant 's occupation has ceased as a result of trespass by a third party. The legislature, in our opinion, intended to cover all possible cases of vacancy occurring due, to any reasons whatsoever. " 575 Thus, contextual interpretation to the word 'or otherwise ' was given by this Court. Therefore, the phrase 'constituted otherwise ' is to be understood in that context and purpose which article 371 D and the Presidential Order seek to achieve. If the interpretation given by the appellants is given acceptance it amounts to giving blanket power to the State Government to create local cadres at its will tending to defeat the object of article 37 I D and the Presidential Order. Accordingly, we have no hesitation to reject the interpreta tion of wider connotation. The ratio in these decisions does not render any assistance to the appellants. Similarly, the power given to the State Government in subparagraph (7) of paragraph 3 of the Order is only to organise a separate cadre in respect of any category of posts in any department when more than one cadre in respect of such category exists in each department; so that State Government may organise one cadre when more than one cadre in respect of different categories of posts exist in a zone under para 3(1) of the Order. It is clear when we see the language in para 3(7) which says that: "nothing in this order shall be deemed to prevent the State from organising". Take for instance while creating local cadre co terminus with the administrative control of the Dy. Commissioner, Commercial Taxes, local cadre for Senior Assistants may be created. It is also made manifest by Instruction No. 7 and 9(e) of the instructions contained in G.O.Ms. No. 728 G.A.D. dated November 1, 1975. But, as stated earlier, it is only for the purpose of administrative convenience, not for the purpose of recruitment, seniority or promotion etc., as the case may be. Thus, we have no hesitation to hold that the creation of a division and maintaining separate seniority of Junior Assistants and Senior Assistants for Adilabad and Warangal Divisions are illegal, contrary to order issued in G.O.Ms. No. 581 and the Andhra Pradesh Employment (Organisa tion of Local Cadre and Regulation of Direct Recruitment) Order, 1975. The single member of the Tribunal in R.P. No. 101/82 dated April 1, 1982 did not consider the effect of the order in proper perspective and is illegal. Accordingly, the impugned order of the Administra tive Tribunal is not vitiated by any manifest error of law warranting interference. The appeal is accordingly dismissed, but without costs. P.S. S Appeal dismissed.

The assessee, who was ordinarily resident in British India, carried on business at Khurja and Aligarh in India and at Chistian in the Indian State of Bahawalpur. He kept a central set of accounts of the business at Khurja, which were maintained on the mercantile system. Under the said system credit entries are made in respect of amounts due immediately they become legally due and even before they are actually received. In his account books the income received by the assessee from all sources was shown, and the interest account showed credit entries of amounts received as interest on capital invested in the shop at Chistian. The assessee conceded that as creditor he had the right to enforce the payment of, interest in British India and that liability of the Chistian shop had been extinguished to the 46 extent of the interest paid by it to the head office. The Income Tax Authorities included these amounts in the assessee 's taxable income in India and levied tax on them. The assessee contended that the entries in respect of the receipt of interest were merely book entries and that the authorities had wrongly treated these amounts as having been actually received. Held, that the relevant entries in the books of account did justify the inference that the assessee had actually received the amounts by way of interest. Where an assessee Keeps accounts according to the mercantile method of book keeping the effect of making a credit entry in the interest account would be to treat that amount as income or profits received by the assessee or treated by him as received for the purposes of the tax. Commissioner of Income tax vs A.T.K.P.L.S.P. Subramaniam Chettiar, Mad. 765, approved. Gresham Life Assurance Society Ltd. vs Bishop, (1902) A.C. 287; Keshav Mills Ltd. vs Commissioner of Income tax, Bombay, ; ; Sunder Das vs The Collector of Gujrat, Lah. 349, referred to. The assessee sought to raise a new point that it was a rule of universal application that no person could trade with himself and that accordingly the interest alleged to have been received from his own shop at Chistian could not amount to receipt of any income by him, and referred to: Dublin Corporation vs M 'Adam, ; Ostime vs Pontypridd and Rhondda joint Water Board, (1944) 28 Tax Cas. 261 ; Caylisle and Silloth Golf Club vs Smith, ; New York Life Insurance Company vs Styles, ; ; Sir Kikabhai Premchand vs Commissioner of Income tax (Central) Bombay, and Ram Lal Bechairam vs Commissioner of Income tax, A.I.R. (1946) All. The respondent contended that the principle was not inflexible or universal and that the new point having been raised for the first time in appeal ought not to be permitted to be raised. Sharkey vs Wernher, (1956) A. C. 58, referred to. Held that, the new point could not be allowed to be raised as that would mean the re opening of the whole enquiry into the question as to the remittances from Chistian to Khurja as well as the rates at which the tax were to be levied on the assessee. If the assessee wanted to rely upon this principle the point ought to have been urged at the earlier stage of the proceedings.

iminal Appeal No. 97 of 1964. Appeal by special leave from the judgment and order dated January 29, 1964 of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Revision No. 5 of 1963. I. N. Shroff, for the appellant. R. L. Anand and section N. Anand, for the respondents. 474 The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Criminal Revision filed by M/s. Azad Bharat Finance Company, one of the respondents in this appeal. The revision arose out of the following facts. On May 3, 1961, truck No. M.P.E. 1548, while it was parked at the bus station, Guna, was searched by the Excise Sub Inspector and he found contraband opium weighing about three seers in it. Five persons were challaned for the alleged illegal possession of contraband opium and for its transport, under sections 9A and 9B of the Opitum Act (1 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955, hereinafter referred to as the Madhya Bharat Act. Harbhajan Singh, one of the accused, is alleged to have absconded, and, therefore, he was tried separately later on. The Additional District Magistrate, Guna, convicted three persons and acquitted one person. Regarding the truck, he ordered that the final orders regarding the disposal of the truck would be passed later, on the conclusion of the trial of Harbhajan Singh. It may be Mentioned that Harbhajan Singh had taken this truck. under a hire purchase agreement from M/s. Azad Bharat Finance Co. and he Was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer. On May 28, 1962, M/s. Azad Bharat Finance Co, applied in the Court of Shri M. C. Bohre, in which the trial of Harbhajan Singh was going on. for the release of the truck. On September 7. 1962. Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State. The Magistrate was of the opinion that section 11 of the Madhya Bharat Act showed ,Clearly that the truck in which the opium was carried had to be forfeited in all circumstances. He observed: "By the use of the word "shall" this Court was ,compelled that the truck be seized, may be there was the hand of the owner in it or not and neither there is any provision that the truck owner had the knowledge or not of the opium being carried. " Both Harbhajan Singh and M/s. Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge. The Sessions Judge also held that the word "shall" in section 11(d) was mandatory and not directory. He observed: "Though it is correct that the truck was not used for carrying opium with the knowledge or connivance of the owner but section 11 (d) as applicable in this state does not give discretion to the Court in not ordering the confiscation of the conveyance used for carrying contraband opium. " 475 M/s. Azad Bharat Finance Co. filed a revision in the High Court. The High Court held as follows: "The word "shall" occurring in Sec. 11 of the M.P. Opium Act means "may" and that it confers discretion on the court to confiscate the conveyance provided it belongs to the offender. But where it is not so, and, the owner of the truck has neither authorised the offender to transport opium, nor is there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act. " The learned counsel for the appellant, Mr. Shroff, contends that the Opium (Madhya Bharat Amendment) Act, 1955 (15 of 1955) which amended the Opium Act, 1878, deliberately employed a different phraseology with the intention of making it obligatory on a Court to confiscate a vehicle in which contraband opium had been transported. He points out that in the Opium Act, 1878, in section 11, the. relevant words Ate as follows: " section 11 Confiscation of opium. In any case in which an offence under section 9 has been committed, The vessels, packages and covering in which any opium liable to confiscation under this section is found, and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and conveyances used in carrying it, shall likewise be liable to confiscation. " He stresses the words "liable to confiscation" which according to him and certain authorities clearly give a discretion to the Court whether to confiscate the vehicle or not. In the Madhya Bharat Amendment Act the section providing for confiscation is as follows: "section 11. In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: (d)the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it. " In our opinion, the High Court was correct in reading section 11 of the Madhya Bharat Act as permissive and not obligatory. It is well settled that the use of the word "shall" does not always 476 mean that the enactment is obligatory or mandatory, it depends upon the context in which the word "shall" occurs and the other circumstances. Three considerations are relevant in construing section 1 1. First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a person steals a truck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be confiscated. It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. (Vide Tirath Singh vs Bachittar Singh)(1). Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if the meaning suggested by Mr. Shroff is given, s.11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under article 19 of the Constitution. Bearing all these considerations in mind, we consider that section II of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case '. Mr. Shroff then contends that if the matter is discretionary. the High Court should not have interfered in the discretion exercised by the learned Sessions Judge. But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sessions Judge ordered confiscation of the truck on the ground that they had no option in the matter. Mr. Shroff then raises the point that M/s. Azad Bharat Finance Co. was a third party in the case and was not entitled to apply for setting aside the order of confiscation or request for the, return of the truck. This point was not raised before the High Court and, therefore, cannot be allowed to be raised at this stage. In the result the appeal fails and is dismissed. Appeal dismissed. (1) ; at 464.

The Madras Estates (Abolition and Conversion into Ryotwari) Act, (Act XXVI of 1948) was passed by the Provincial Legislature of Madras functioning under the Government of India Act, 1935 and it received the assent of the Governor*General of India on the 2nd of April, 1949. After the advent of the Constitution, the Act was reserved for the certification of the President and it was certified on the 12th of April, 1950: Held, that in view of the provisions of article 31(6) of the Constitution the validity of the Act could not be challenged on the ground that it contravened the provisions of section 299(2) of the Government of India Act, 1935. Shankari Prasad Singh Deo vs Union of India ([1952] S.C.R. 89), The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) and Narayan Deo vs The State of Orissa ([1954] S.C.R. 1) referred to.

tion No. 67 of 1965. Petition under article 32 of the Constitution of India for enforcement of the fundamental rights. M.C. Chagla, F.N. Kaka, O.P. Malhotra and J.B. Dadachanji, for the petitioner. B. Sen, T.A. Ramachandran and R.N. Sachthey, for the respondents. The Judgment of the Court was delivered by Shah, J. On ' February 25, 1965, the Income tax Officer, Companies Circle I ( 3 ), Bombay, directed that for the purpose of the Income tax Act, 1961, the Premier Automobiles Ltd. hereinafter called 'the Company be treated as an agent of M/s Dodge Brothers of United Kingdom a non resident Company. On the same day the Income tax Officer issued a notice of demand under section 156 read with section 210 of the Act calling upon the .Company to pay on or before March 1, 1965, advance tax of Rs. 11,51,235 91 as agent of the foreign principal during the financial year 1964 65. The Company then moved a petition in this Court for an order quashing and setting aside the order under section 163 and notice of demand under section 156 for the assessment year 1965 66 and for an injunction or prohibition restraining the Income tax Officer from enforcing or implementing the order under section 163 and the notice under section 156 read with section 210 of the Incometax Act, 1961. The petition was resisted by the Income tax Officer. In support of the petition counsel for the Company raised two contentions: (1) that under sections 209 and 210 of the Indian Income tax Act, 1961, no order for payment of advance tax can be made against an agent of a non resident; and (2) that a provision which authorises collection of advance tax from an agent of a non resident infringes the equality clause of the Constitution and is on that account void. Sections 207 and 208 of the Income tax Act, 1961, insofar as they are material, provide: ' 207 "(1) Tax shall be payable in advance in accordance with the provisions of sections 208 to 219 in the case of income other than income chargeable under the head "Capital gains."" 208 "Advance tax shall be payable in the financial year (a) where the total income exclusive of capital gains of the assessee referred to in sub clause (i) of clause (a) of section 209 exceeded the maximum amount not chargeable to income tax in his case by two thousand five hundred rupees; or (b) . . . . . . Section 209 sets out the rules for computation of amount of advance tax payable by an assessee in the financial year. Section 210 provides by sub section (1) "Where a person has been previously assessed by way of regular assessment under this Act or under the Indian Income tax Act, 1922, the Income tax Officer may, on or after the 1st day of April in the financial year, by order in. writing, require him to pay to the credit of the Central Government advance tax determined in accordance with the provisions of sections 207, 208 and 209. " Section, 207, 208, 209 and 210 prescribe machinery for imposition of liability for and determination of the quantum of advance tax in respect of income which is chargeable to income tax in the hands of a person on regular assessment. Under the Income tax Act, 1961 a person is liable to be. assessed to tax in respect of his own income, and also in respect of certain classes of income received by or accruing or arising others. He is also liable to be assessed to tax as a representative assessee. That is expressly so enacted by section 161 (1 ) which provides: "Every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if "the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of 356 that income; but any such assessment shall be deemed to be made upon him in his representative capacity only, . ." A representative assessee by sub section (1 ) of section 160 includes amongst others, the agent of a non resident in respect of the income of a non resident specified in section 9 (1 )(i), and also a person who is treated as an agent under section 163. By sub section (2) a representative assessee is deemed to be an assessee for the purpose of the Act. By section 162 the representative assessee, who as such pays any sum under the Act, may recover the sum so paid from the person on whose behalf it is paid. Section 163(1) defines for the purposes of the Act an "agent" in relation to a non resident. Resort to the machinery for assessing a representative assessee is however not obligatory: it is open to the Income tax Officer to make a "direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable", or to recover "from such person the tax payable in respect of such income". On regular assessment an agent of a non resident is, by virtue of section 160.(1) read with section 163 liable to be assessed to tax and the tax so assessed may be recovered from him. The agent, if assessed to tax, has the right to recover tax paid by him from the person whom he represents: section 162. Since a non resident is in respect of income which forms part of his total income liable to be assessed to tax, he may also be called upon to pay advance tax in respect of the income accruing to. or received by him which forms part of his total income chargeable to tax by virtue of sections 4, 5 and 207. So far there is no dispute. Counsel for the Company however urged that an agent of a non resident may be assessed in regular assessment in respect of the income accruing. or arising to his principal,. but he cannot be called upon to pay advance tax even though he is by virtue of section 160(2) deemed an assessee for the purposes of the Act. Diverse reasons were suggested in support of that argument. It was said that since under section 209( 1 ) the amount of advance tax payable by an assessee in the financial year is to be computed on his total income of the latest previous year in respect of which he has been assessed by way of regular assessment, an agent cannot be directed 'to pay advance tax, the incidence of liability whereof depends upon the ,,determination of total income of the principal. We fail to see any substance in this argument. Section 207 imposes liability for payment of advance tax, and section 208 prescribes the conditions of liability to. pay advance tax. Determination of total income of the previous year of the assessee is not made a condition of the liability to pay advance tax. Advance tax payable by an assessee is computed in the manner provided by section 209 when the assessee has been previously assessed to tax. The Income tax Officer is also enjoined by section 210 to issue a notice to a person who has been 357 previously assessed"by way of regular assessment" to pay advance tax for the financial year. If the assessee has not been previously assessed by way of regular assessment, he is required by section 212(3) to make an estimate 'of his total income excluding capital gains if it is likely to exceed the maximum amount not chargeable to tax by two thousand five hundred rupees, These provisions apply to all assessees. If an assessee is chargeable to tax in respect of his own income or income of others which is chargeable to tax as his own income, those provisions indisputably apply. It is expressly enacted by section 161 that as regards income in respect of which a person is a representative assessee, he shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially. It is clearly implicit therein that a representative assessee is not exempt from liability to pay advance tax. of the liability to pay advance tax it is not predicated that the previous year should have come to. an end before liability can arise. The previous year of an assessee may in some cases end. after the commencement 'but before the end of a financial year in which advance tax is payable: it may in other cases commence and end with the financial year. But the liability to pay advance tax. is not in any manner affected because the previous year ends before or with the financial year. Where an assessees previous, year is the financial year, his total income may not be determined for the previous year before the commencement of the financial year, but on that account no exemption from payment of advance tax is granted by the Act. On the commencement of a financial year, a person who. is previously assessed to tax is liable to pay advance tax on demand by the Income tax Officer under section 210. The quantum of tax will be determined by section 209 and will be adjusted in the manner provided by section 210(3). That applies to every assessee Whether the tax is liable to be paid by him on his own total income, or on the income assessed.in his hands as a representative assessee. If he has not been previously assessed in the character in which he is liable to pay tax, an obligation is imposed by section 212(3) upon him to make an estimate of his income and to pay advance tax. That provision also applies to his own income and also to the income in respect of which he is a representative assessee. There is nothing in the Act under which the liability to pay advance tax of a representative assessee depends upon determination of the total income for the previous year. An argument of hardship was also raised. It was said that an agent of a non resident may not normally have in his possession any materials on which he may estimate the income in respeet of which he may be chargeable to advance tax, if he has not been previously assessed to tax as an agent of a non resident. That again, in our judgment, is not a ground which exempts an 358 agent from liability to pay advance tax on behalf of his principal. Liability to submit an estimate necessarily implies the duty to secure the requisite information from the non resident for submitting the estimate. The tax, it must be remembered, is assessed on the agent for and on behalf of the principal, and the Act has made an express provision enabling the agent to recover from the principal the tax so paid by him. Once the Income tax Officer treats a person as an agent of a non resident, liability to pay tax on regular assessment arises; and his liability as a representative assessee to pay advance tax is not excluded by any provision of the Act. In our judgment, sections 207 and 208 which impose liability to pay advance tax in a financial year, section 210 which authorise the Income tax :Officer to make a demand for payment of advancetax from a person who is previously assessed, and section 212(3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise and to pay advance tax if the total estimated income exceeds the maximum amount not chargeable to tax in his case by Rs. 2,500, apply to every person whether he is assessed in respect of his own income or as a representative assessee, and we are unable to imply an unexpressed limitation on the express 'words of the statute in favour of an agent of a non resident principal. In the present case by order dated February 25, 1965, for the assessment year 1964 65 the Company was treated as an agent of the non resident principal. Since the Company was treated as an agent of the non resident, it became liable to pay advancetax in the financial year 1964 65. By virtue of section 207 read with section 208 the declaration that the Company was an agent involved liability to pay advance tax as well as tax assessed on regular assessment. We are unable to hold that the liability to pay advance tax did not arise against the Company. The plea that the provisions imposing liability to pay advancetax upon an agent of a non resident infringe the equality clause of the Constitution has No. substance. As already observed, the liability to pay advance tax arises under sections 207 .and 208 and its quantum is determined by sections 209, 210 and 212(3), and it is not predicated of the accrual of liability that the total income of the previous year should be ascertained or precisely ascertainable when demand is made by the Income tax Officer under section 210, or when the assessee is required to. make an estimate. The assumption that an assessee whose year of account coincides with the financial year is not in respect of that year liable to pay advancetax is not warranted. The computation of advance tax is not dependent upon the completion of the previous year: it depends upon the rules prescribed by sections 209, 210 and 212. Every person who has been previously assessed to tax is liable when ordered 359 by the Income tax Officer to pay advance tax, subject to the right to make an estimate under section 212( 1 ). A person who has not been previously assessed but whose income is likely to exceed the specified amount is also liable to pay advance taX. The Act does not accord discriminatory treatment between different assessees. Payment of advance tax is on account and is always liable to be adjusted against the tax assessed on regular assessment. That again applies. to all assessees. It is then difficult to appreciate the grounds on which the plea of denial of equal protection may be sustained. The only ground urged, that an assessee may escape liability to pay advance tax where his previous year coincides with the financial year, is without substance, and no other ground is set up in support of the plea of violation of the guarantee of equality under article 14 of the Constitution. The petition therefore fails and is dismissed with costs. G.C. Petition dismissed.

The Income tax Officer, Companies Circle, Bombay treating the petitioner as an agent of a non resident issued a notice of demand under section 156 read with section 210 of the Indian Income tax Act, 1961. By this notice the petitioner was called upon to pay advance tax as agent of the foreign principal during the financial year 1964 65. The petitioner filed a petition under article 32 of the Constitution challenging the demand. The contentions. in support of the petition were: (i) that under sections 209 and 210 of the Indian Income tax Act, 1961 no order for payment of advance tax can be made against an agent of a non resident; (ii) that a provision which authorises collection of advance tax from an agent of a non resident infringes the equality clause of the Constitution. In support of the first contention it was urged that since under section 209(1) the amount of advance tax payable by an assessee in the financial year is to be computed on his total income of the latest previous year in respect of which he has been assessed by way of regular 'assessment, an agent cannot be directed to pay advance tax the liability whereof depends upon the determination of total income of the, principal. HELD: (i) Sections 207 and 208 which impose liability to pay advance tax in a financial year, section 210 which authorises the Income tax Officer to make a demand for payment of advance tax from a person who is previously assessed, and section 212(3) which imposes the duty to make an estimate of the total income likely to be received or to accrue or arise. and to pay advance tax if the total estimated income exceeds the maximum amount not charge.able to tax in his case by Rs. 2,500/apply to every person whether he is assessed ' in respect of his own income or as a representative assessed and it is not possible to imply in the application of these: provisions 'an unexpressed limitation on the express words of the statute in favour of an agent of a non resident principal. [358 C D] It is expressly enacted by section 161 that as regards income in respect of which a person is a representative assessee, he shall be subject to the same duties, 'responsibilities. and liabilities as if the income. were income received by or accruing to or in favour of him beneficially. It is clearly implicit therein that a representative assessee is not exempt from liability to pay advance tax. [357 C] of the liability to pay advance tax it is not predicated that the previous year should have come to. an end before the liability can anse. The previous year of an assessee may in some cases end after the commencement but before the end of a financial year in which advance tax is payable: it may in other cases commence and end with the financial year. But the liability to pay advance tax is not in any manner 354 affected because the previous year ends before or with the financial year. There is nothing in the Act under which the liability to pay advance tax of a representative assessee depends upon determination of the total for the previous year. [357 C G] Accordingly, it could not be held that the petitioner was not liable to pay advance tax on behalf of his non resident principal. [358 E F] (ii) The plea that the provisions imposing liability to pay advance tax upon an agent of a non resident infringe the equality clause of the Constitution could not be accepted. The only ground urged, that an assessee may escape liability to pay advance tax when his previous year coincides with the financial year, was without substance. [359 B C]

minal Appeals Nos. 65 and 243 of 1964. Appeals by special leave from the judgment and order dated September 18, 1963 of the Andhra Pradesh High Court in Criminal Appeal No. 385 of 1962. section C. Agarwala, for the appellant (in Cr. A. No. 65/64) and respondent No. 2 (in Cr. A. No. 243/64). K. R. Chaudhuri, for the appellant (in Cr. A. No. 243/64) and respondent No. 1 (in Cr. A. No. 65/64). T. V.R. Tatachari, for respondent No. 2 (in Cr. A. No. 65/64) and respondent No. 1 (in Cr. A. No. 243/64). The Judgment of the Court was delivered by Hidayatullah, J. These are two appeals, one (Criminal Appeal No. 243 of 1964) by one Purna Chandra Rao who has been convicted under section 342, Indian Penal Code by the High Court of Andhra Pradesh but in lieu of the sentence the High Court released him under section 562(1 A) of the Criminal Procedure Code after due admonition, and the other (Criminal Appeal No, 65 of 1964) by one A. K. Mallu against the judgment of the Andhra Pradesh High Court releasing the respondent (who is the appellant 310 in the other appeal) after admonition under section 562 (1 A) of the Code of Criminal Procedure. The two appeals have been respectively filed by the complainant who had lodged a complaint against him on which the conviction resulted, and by the accused. In so far as the appeal of the accused is concerned, we have recorded an order separately which shows that Mr. K. R. Chaudhary, advocate of this Court appeared before us and told us that he would like to withdraw from the case. As the accused is not represented before us, there is no alternative but to dismiss his appeal in default. As regards the other appeal, Mr. section C. Aggarwal contends that section 562 (I A) is not applicable to an offence under section 342 of the Indian Penal Code. His reasons are: that section 562 (1 A) is concerned with offences concerning property and offences not so concerned cannot be subjected to treatment under that section. Section 562 (1 A) reads as follows: "In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years ' imprisonment and no previous conviction is proved against him the Court before whom he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. " Mr. Aggarwala contends that the Code has mentioned several offences by description, such as theft, theft in building, dishonest misappropriation and cheating which are offences connected with property and, therefore, words "any offence under the Indian Penal Code" which follow, must be given an interpretation, confining them to those sections of the Penal Code where property is either directly or indirectly involved. In our opinion, this submission is not correct and Mr. Aggarwala is not right in reading the section as he contends. The offences which are earlier mentioned in the section are punishable with imprisonment of more than two years and, therefore, it was necessary to mention them so as to include them in addition to offences under the Indian Penal Code punishable with not more than two years ' imprisonment. The words "any offence under the Indian Penal Code" therefore cannot be read ejusdem generis with the offences which are mentioned earlier. This clause stands by itself and indicates that all offences punishable with not more than two years ' imprisonment are also capable of 311 being dealt with under s.562 (1 A). Offences against property are all included in Ch. 17 of the Indian Penal Code and if it was desired to limit the operation of section 562(1 A) to offences against property, it would have been the easiest thing to have mentioned the Seventeenth Chapter of the Code. For these reasons, we do not accept the argument. As a result, both the appeals fail and are dismissed. V.P.S. Appeals dismissed.

The accused was convicted of the offence of wrongful confinement under section 342 I.P.C., and was released after due admonition under section 562(1 A), Criminal Procedure Code. On the question whether the latter section is concerned only with offences relating to property and was therefore not applicable in the present case, HELD : The clause "any offence under the Indian Penal Code punishable with not more than two years ' imprisonment" in section 562(1 A) Cr.P.C., stands by itself and indicates that all offences punishable with not more than two years ' imprisonment are capable of being dealt with under the section. The words "any offence under the Indian Penal Code" cannot be read ejusdem generis with the offences of theft etc. mentioned earlier in the section. Those offences had to be specifically mentioned so as to be included in the section, because, they are offences punishable with im prisonment of more than two years. [310 G H]

Appeal No. 721 of 1976. (Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal from Appellate Decree No. 6 of 1974). Harbans Singh Marwah, for the appellant. K.K. Sinha, S.K. Sinha and Devi Prasad, for respondents. The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of the tenant. Two rooms being shop Nos. 17 and 18 of Modi Building in Commissioner 's Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the. defendant (appellant herein). We will describe them as the plaintiff and the defendant. It is common ground that fair rent of Rs. 50/ per month (including water tax) was deter mined for the two, shops by an order of the Rent Control ler under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953. Later on, certain furniture, such as ' five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/ . A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non payment of rent of the said two shops and furniture for three months from July to September 1965. 986 The Munsiff, Ranehi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11(1)(d) of the Act. The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act. On appeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial court and de creed the suit for eviction upholding the ground of default. The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/ per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/ per month was not a valid dis charge of his rental liability and he was a faulter within the meaning of section 11(1)(d) if the Act. The Subordinate Judge also held that there was no proper service of the notice of eviction. We are not concerned in this appeal with the question of service of notice. Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose: (1) "I, therefore, decide that the plain tiff was entitled to realise Rs. 50/ as monthly rent. (2) In view of the evidence of the parties and Ext. 2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/ per month. (3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy . ". The defendant 's second appeal to the High Court failed. 'The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 11(1)(d) and hence the ground of default of payment of Rs. 78/ per month from July to September 1965 was avail able to the plaintiff. The High Court also gave an additional reason for sus taining the eviction decree. There was an order by the Subordinate Judge, in the course of the appeal, under sec tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/per month in terms of that Section. It appears there was some controver sy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant. The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non compliance with the court 's order under section 11A in the following terms: "It was argued on behalf of the appel lant (plaintiff) that the defendant had not deposited subsequent rent in spite of direc tion by the court and so this court had to 987 strike out the defence against ejectment. The defendant had filed the documents to show subsequent deposit in regular way. So this plea of plaintiff fails". A second attempt, and this time successfully, was made in the High Court by the plaintiff to. press the ground under section 11A of the Act to strike out the defendant 's de fence against ejectment. It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non compliance with section 11A of the Act. The High Court, therefore, allowed parties to produce some documentary evidence and relying upon the same held as follows: "Learned Advocate appearing for the appellant (defendant) contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court, no penalty should be imposed on the appellant (defendant). Learned Advocate, however, failed to produce any material to. show as to what detracted the appellant (defendant) to deposit the money himself on 15 3 1974 on the passing of the. challan and what caused the 7handing over the money to. the Nazir". In a matter where the first appellate court came to a posi tive finding in favour of the defendant with regard to the non compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course. it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter 's oral testimony. There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on March 14, 1974. The matter would have been different if the High Court, in the interest of justice, had called for addition al evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportu nity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation. It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend ant. Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court. In view of the fact that the first appellate court held the deposit of the amount sufficient ' under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it. This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in ' the extract from the judgment quoted 15 206SCI/77 988 above. The only objection of the. High Court was that the defendant instead of handing over the amount to. the Nazir should have "himself ' deposited the amount on March 15, 1974. Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment. The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore, fails. Further section 11 describes the circumstances under which eviction of tenants can take place. Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein. Section 11A which was inserted by amendment by Bihar Act 16 of 1955 reads as follows: "Deposit of rent by tenants in suits for ejectment. If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the ten, ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an oppor tunity to the parties to be heard, may make an order for deposit of rent at such rate as may he determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the. rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other com pensation as may be determined by it from the tenant". It is submitted by the defendant that an order under section 11A can be passed only by the trial court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The advantage which is given to the landlord under section 11A for the purpose of realisa tion of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litiga tion, whether in the trial court or in appeals. The penalty of striking out defence for non compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act. The only ground that remains for consideration is wheth er the defendant defaulted m the payment of rent from July to September, 1965. If it were merely a finding of fact by the first appellate court 989 there would be nothing wrong for the High Court to dismiss the second appeal. The question, however, assumes a legal complexion even on the findings of facts of the first appel late court. The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs. 28/ per month for the furniture was a subject matter of "subsequent supply" and "a quite independ ent contract 'unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinate Judge. We are, however, unable to accept the above legal position of the defendant 's default in this case on the finding of facts set out above. Rent has been always Rs. 50/ per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises, the plaintiff could not alter that fixed rent without order of the Rent Controller. Section 4 of the Act provides that "notwith standing anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to. in crease, or claim 'any increase in, the rent which is payable for the time being, 'in respect of any building except in accordance with the provisions of this Act". The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building. This amount of rent of Rs.50/ was determined by the Rent Con troller as fair rent under section 5 of the Act. It is the default in the payment of this rent fixed by the Rent Con troller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mis chief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains di vorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not be affected. The plaintiff submits that since the definition of build ing includes furniture the rent becomes consolidated 'and the defendant was liable to pay the total amount of Rs. 78/ and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act. The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermina tion of the rent under section 7 of the Act. We are unable to accept the above submission. Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, 990 provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con troller that subsequent to such determination some addition or improvement has been made to the building at the land lord 's expense, the Controller may redetermine the .fair rent of the building. There is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal practices and unholy devices deterimental to the interests of the tenants. No enhance ment of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the article The High Court, and earlier the Addi tional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, there fore, no basis for granting decree for eviction under sec tion 11(1)(d) of the Act. In the result the judgment of the High Court is set aside and the judgment and the decree of the Munsiff dis missing the suit stand restored. The appeal is allowed with costs. P.B.R. Appeal allowed.

Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified there in. Under section 11A, if in a suit for recovery of possession of any building the tenant contests the suit, the Court may make an order for deposit of rent and arrears, if any, and on failure to deposit the arrears within fifteen days of the date of the order, the Court shall order the defence against ejectment to be struck out. The plaintiff (respondent) let out two rooms of his premises to the defendant (appellant) at a rent fixed by the Rent Controller under section 5 of the Act. Sometime later, the plaintiff let out some furniture to the defendant at a mutually agreed rent. The plaintiff 's suit for eviction of the defendant on the ground of non payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under section 11(1)(d) of the Act. On appeal, the Subordinate Judge held that non payment of rent of furniture along with the rent of the premises was a default within the meaning of section 11(1)(d). The High Court upheld the decision of the Subordinate Judge. On the question of deposit of rent under section 11A, the Subor dinate Judge held that the defendant had filed documents to show subsequent deposit in a regular way. On the other hand, the High Court came to the conclusion that the defend ant failed to produce any material to show as to what de terred him from "depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir. " On this ground, it allowed the plaintiff 's suit. Allowing the appeal, HELD: The High Court and the Subordinate Judge committed an error of law in accepting the ground of default under section 11(1)(d) on a wrong appreciation of the legal position on the facts found by the first appellate Court. There was, therefore, no basis for granting a decree for eviction under section 11(1)(d) of the Act. [990C] 1. (a) It is the default in the payment of rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d). Section 4 of the Act provides that notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is pay able for the time being, in respect of any building except in accordance with the provisions of the Act. [989E F] In the instant case, the Rent Controller having fixed the rent of the premises, the plaintiff could not alter that rent without an order of the Rent Controller. Default of the payment of furniture rent agreed to by the defendant subse quent to the lease of the premises could not be brought within the mischief of section 11 (1) (d) to entitle the landlord to a decree for eviction. The furniture rent remains di vorced from the rent of the building under the original demise. [989D &P] (b) Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under section 7. There is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act. No 985 enhancement of fair rent is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent in excess of the fair rent fixed, if without recourse to the Procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Act. [990A B] The penalty of striking out the defence for non compli ance of an order under s.11A is district from the grounds of eviction permitted under section 11. [988H] 2. The contention of the defendant that an order under s.11A could be passed only by the trial Court is without force because an appeal is a continuation of the suit. The advantage given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation, whether in the trial Court or in appeal. [988G] 3. Where the first appellate court came to a positive finding of fact in favour of the defendant, the High, Court was wrong in adopting a different course to reach a contrary conclusion for the first time on a vital fact. The matter would have been different if the High Court had called for additional evidence under 0.41, r. 28, C.P.C. But the course adopted by the High Court has resulted in great prejudice to the defendant. [987E F] In the instant case the High Court itself had accepted that the amount of rent was handed over to the Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited it. In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment. [988B]

Civil Appeal No. 503 of 1974. From the Judgement and order dated 29/30.8.1973 of the Gujarat High Court in Special Civil Application No. 129 of 1973. Joseph Vellapally and D.N. Mishra for the Appellants. R.N. Sachthey, Anip Sachthey and Ms. Rashmi Dhariwal for the Respondents. 393 The Judgement of the Court was delivered by R.M. SAHAI, J. Validity of demand, under Section 58A of the Bombay Prohibition Act, for maintenance of excise staff for supervision of the manufacture of industrial alcohol was assailed on lack of legiislative competence of the State. Section 58A is extracted below: "58A: The State Government may by general or special order direct that the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxitant, denatured spirituous preparations, hemp, Mowra flowers, or molasses shall be under the supervision of such Prohibition and Excise or Police Staff as it may deem proper to appoint, and that the cost of such staff shall be paid to the State Govt. by person manufacturing, importing, exporting, transporting, storing, selling, purchasing, using, collecting or cultivating the intoxicant, denatured spirituous preparation, hemp, Mowra flowers or molasses: "Provided that the State Government may exempt any class of persons or institutions from paying the whole or any part of the cost of such staff". Rule 2 of Bombay Prohibition (Manufacture of Spirit) (Gujarat) Rules, 1963, framed by the State of Gujarat empowered the director to grant a licence for working of the distillery for the manufacture of the spirit. Condition Nos.2 and 3 of the licence issued provided for employment of excise staff for supervision of the operations of manufacture and storage of spirit as well as for payment of salary and allowances to staff so posted. Attack was not on power to supervise or even the right to post staff for supervision but on demand of cost of maintenance of such personnel. Levy was upheld, by the High Court, as fee under entry 8 of List II of the VIIth Schedule read with entry 66 of the same list. In Synthetics & Chemicals Ltd. & Ors. vs State of U.P. & Ors. , ; a Constitution Bench after exhaustively reviewing the constitutional entries and various decisions held that industrial alcohol being unfit for human consumption as no levy on it could be made by a State either under Entry 51 or Entry 8 of List II of VIIth Schedule. Nor such levy could be justified on doctrine of privilege or police power. Therefore it was urged that the order of High Court was liable to be set aside and the provision was liable to be struck down as ultra vires. Such understanding of the judgement is not warranted. The Constitu 394 tion Bench while distinguishing between potable and non potable alcohol and holding that the State had no privilege in it upheld the power of State to regulate and ensure that non potable alcohol was not diverted and misued. According to learned counsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetic & Chemical 's case. Levy as a fee under Entry 8 of List II of VIIth Schedule or excise duty under Entry 51 are different than cost of supervision charged under Section 58A. The former has to stand the test of levy being in accordance with law on power derived from one of the constitutional entries. Since Synthetic & Chemical 's case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of VIIth Schedule of the competency of the State to frame any legislation to levy any tax or duty is excluded. But by that a provision enacted by the State for supervision which is squarely covered under Entry 33 of the concurrent list which deals with production, supply and distribution which includes regulation cannot be assailed. The Bench in Synthetic & Chemical 's case made it clear that even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that non potable alcohol,that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol. This is enough to justify a provision like 58A. In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were not authorised to impose the impost as they have purported to do in that case but that did not effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee nor it will affect any regulatory measure. This completely demolishes the argument on behalf of appellant. Principle of occupied field precluded State from trenching on any power which was already covered by central legislation. But in absence of any provision in Industries (Development & Regulation) Act touching upon regulation or ensuring that industrial alcohol was not diverted the state was competent to legislate on it under Entry 3 List III of VIIth Schedule which is extracted below, "33. Trade and Commerce in, and the production, supply and distribution of (a) The products of any industry where the control of such industry by Union is declared by Parliament by Law to be 395 expedient in the public interest, and imported goods of the same kind as such products. (b). . . . . (c). . . . . (d). . . . . (e). . . . . Trade and commerce and supply and distribution of goods are exclusive state subjects under entry 26 and 27 of List II of VIIth Schedule. But both are subject to entry 33 of List III. That is what is covered in entry 33 is excluded from list II. And the power to legislate in respect of what is covered by list III is enjoyed both by Central and State subject to Article 246 of the Constitution. Since 58A can be traced to regulatory power of the State exercisable under entry 33 the challenge to its validity is liable to fail. It could not therefore be successfully claimed that it was violative of any constitutional provision or the section was invalid in view of the ratio in Synthetic & Chemicals ' case. Failing on the principal submission the learned counsel urged that no cost for supervision could be demanded unless the power to issue licence for production was found to exist in State. Reliance was placed on observations in Synthetic & Chemical 's case. Since it stands answered by the constitution Bench itself it is unnecessary to dilate on it. Suffice it is to extract the following observation, "The position with regard to the control of alcohol industry has undergone material and significant change after the amendement of 1956 to the IDR Act. After the amendment, the State is left with only the following powers to legislate in respect of alcohol: (a). . . . . . (b) It may lay down regulations to ensure that non potable alcohol is not diverted and misued as a substitute for potable alcohol. (c). . . . . . (d) However, in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo". Feeble attempt was made to challenge absence of any quid pro quo. But no serious effort was made in High Court is clear from following observation. : 396 "If any quid pro quo is to be established between the quantum of the levy and the services rendered it must be established between the actual cost of supervision paid by a manufacturer or a businessman and the quantum of profits made by him by lawfully carrying on his business into a prohibited commodity. We have no doubt in our mind that the annual payment of a few thousand rupees by way of cost of supervision under Section 58A brings to each of the three petitioners profits which must be quite disproportionate in size. We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman. " In the result, this appeal fails and is dismissed with costs. G.N. Appeal dismissed.

The respondents, Diploma holder Junior Engineers in the Public Works Department, pondicherry, approached the Central Administrative Tribunal, with the plea that the period of service rendered by them before they obtained the Degree should be included for reckoning the period of three years ' service prescribed in the Recruitment Rules for promotion to the post of Assistant Engineer in the category of those possessing Degree with three years ' service and if the earlier period was so included, they would be eligible for promotion. However, Degree holders opposed the respondents ' plea contending that the period of three years prescribed in the Rules was subsequent to the date of obtaining the De gree. The Tribunal upheld the respondents ' claim and directed that they should be considered for promotion on par with the other Degree holder Junior Engineers, taking due note of their total length of service rendered in the grade of Junior Engineer. Hence the appeal, by the Special Leave, by the Degree hold ers. Allowing the appeal, this Court, HELD:1.1 The rules must be construed to mean that the three years ' service in the grade of a Degree holder for the purpose of Rule 11 of the Recruitment Rules, for promotion to the post of Assistant Engineer in the Public Works De partment Pondicherry, is 424 three years from the date of obtaining the Degree by a Diplomaholder. This is in conformity with the past practice followed consistently. The Tribunal was not justified in taking the contrary view and unsettling the settled practice in the Department. [427 D] 1.2 Rule 7 of the Recruitment Rules lays down the quali fications for direct recruitment from the two sources, namely, Degreeholders and Diploma holders with three years ' professional experience. Thus, a Degree is equated to Diplo ma with three years ' professional experience. Rule 11 pro vides for recruitment by promotion from the grade of Section Officers, now called Junior Engineers. There are two catego ries provided therein, viz., (1) Degreeholder Junior Engi neers with three years ' service in the grade and (2) Diplo ma holder Junior Engineers with six years ' service in the grade, the provision being for 50% from each category. This matches with Rule 7 wherein a Degree is equated with Diploma with three years ' professional experience. In the first category meant for Degree holders, it is also provided that if Degree holders with three years ' service in the grade are not available in sufficient number, then Diploma holders with six years ' service in the grade may be considered in the category of Degree holders also for the 50% vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years ' service in the grade re quired for Degree holders according to Rule 11 as the quali fication for promotion in that category must mean three years ' service in the grade as a Degree holder and, there fore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years ' service as a Degree holder. [427 G H, 428 A C]

Civil Appeal No. 682 of 1981. From the Judgment and Order dated the 21st June, 1980 of the High Court of Bombay in Special Civil Application No. 2039 of 1975. V.M. Tarkunde, P.H. Parekh and R.N. Karanjawala for the Appellant. Soli J. Sorabjee, V.N. Ganpule and Mrs V.D. Khanna for the Respondents. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave arises out of a suit for a declaration and injunction and aises questions concerning the interpretation and application of certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. 566 Peerbhoy Mansion is a building situated at Vithalbhai Patel Road in the city of Bombay. It was let to a partnership firm, Gold Field Leather Works. Gold Field sublet a portion of a shop on the ground floor to Manekchand Bhikabhai. The sub tenant Manekchand sublet it further to Sardar Tota Singh in 1952. Gold Field filed a suit in 1962 against Manekchand for possession of the premises on the ground of unlawful subletting and carrying out unauthorised structural alterations. Manekchand resisted the suit and filed a written statement During the pendency of the suit Tota Singh applied to the Court for being added as a defendant, but the application was opposed by Gold Field and was rejected. Gold Field 's suit was ultimately decreed for possession in accordance with a compromise between the parties. Tota Singh then filed Suit No. 2454 of 1966 for a declaration that he was a lawful tenant in possession of the premises and for an injunction restraining Gold Field from executing the decree which that firm had obtained against Manekchand It was pleaded that he was in occupation and exclusive possession as a lawful sub tenant for more than fifteen years to the knowledge of Gold Field, that the decree in Gold Field 's suit was a collusive decree, that as the decree had been passed against Manekchand he, Tota Singh, had become a direct tenant of Gold Field under section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the "Bombay Rent Act") and that therefore he was entitled to the declaration and injunction sought in the suit. Gold Field filed a written statement in the suit and pleaded that they were tenants of the entire building and had sublet the premises to Manekchand, that Manekchand as sub tenant could not sub let the premises further to Tota Singh, and therefore Tota Singh 's sub tenancy was invalid. The Court of Small Causes tried the suit and decreed it on April 17, 1973. Gold Field appealed. The Appellate Bench of the Court of Small Causes dismissed the appeal on April 30, 1975. The Appellate Bench affirmed the trial Judge 's finding that the premises had been sublet by Manekchand to Tota Singh in 1952, and that on May 21, 1959, when the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 was promulgated and sub section (2) of section 15 was introduced into the Bombay Act, Manekchand was not in possession. In the attempt to prove that he was a lawful 567 sub tenant, Tota Singh urged before the Appellate Bench that Gold A Field had permitted Manekchand to sublet the premises to him, but this contention was not entertained by the appellate Bench as there was neither any plea nor any evidence to support it. The Appellate Bench also rejected the submissions of Tota Singh that he had paid rent directly to Gold Field and therefore had been accepted as a tenant by them. It found that no rent had paid by Tota Singh to Gold Field after Manekchand 's statutory tenancy, which followed the termination of this contractual tenancy by service of notice had itself been terminated by the decree for possession in Gold Field 's suit One road seemed still open to Tota Singh to establish the validity of his tenancy. fore the Appellate Bench a concession had been made by counsel for Gold Field. It was conceded on behalf of Gold Field that Manekchand was their lawful sub tenant. On that Tota Singh urged that if Manekchand, although a sub tenant, was regarded as a "tenant" by reason of sub section (11) of section 5 of the Bombay Rent Act, then the benefit of sub section (2) of section 15 should be extended to him. He was in possession on May 21, 1959 as the sub tenant of a lawful tenant and, therefore, the submission proceeded, his subtenancy would be deemed to be valid This contention found favor with the Appellate Bench. It held that as Tota Singh was undisputedly in possession on May 21, 1959, the sub tenancy in his favor by Manekchand must be deemed to be a valid sub tenancy. At this point a debate was raised whether the benefit of sub section (2) of section 15 had to be confined to a sub tenancy created by a tenant or could be extended to a sub tenancy created by a sub tenant. Following the view taken by the Bombay High Court in Josephy Santa Vincent v Ambico Industries.(1) the Appellate Bench answered that question in favor of Tota Singh and dismissed Gold Field 's appeal. Gold Field filed a Special Civil Application in the High Court against the order of the Appellate Bench of the Court of Small Causes and on June 21, 1980 the High Court set aside the decree passed by the Appellate Bench and dismissed Tota Singh 's suit. The High Court took the view that having regard to certain observations made by this Court in Jai Singh Morarji and Ors. vs M/s Sovani Pvt. Ltd. and Ors.(2) an extended construction of sub section (2) of section 15 of the Bombay Rent Act so as to include a sub tenancy created by a sub tenant was not justified. (1) 70 Bombay Law Reporter 224. (2) ; 568 Tota Singh died during the pendency of the appeal in the High Court, and accordingly this appeal has been preferred by his legal representatives. The material question before us is whether Tota Singh could rightly claim tenancy rights in the premises and therefore nullify the enforcement as against him of the decree in Gold Field 's suit. It appears that sub section (I) of section 15 of the Bombay Rent Act as originally enacted prohibited the sub letting by a tenant of premises let to him, except in the particular cases notified by the State Government under the proviso to that sub section. A sub letting by the tenant constituted a ground for his eviction under clause (e) of sub . (1) of section 13. The rigour of the provision was relaxed by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959, which was brought into force on May 21, 1959. The Ordinance was replaced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act 1959 In consequence, sub section (1) of section 15 of the Act stood amended from the inception of the Bombay Rent Act so that the prohibition against sub letting incorporated in it operated 'subject to any contract to the contrary". Simultaneously, sub section (2) was inserted in section 15. That provision was subsequently substituted by Maharashtra Act 38 of 1962 by the following provision with effect from May 21, 1959: "15 (2) The prohibition against the sub letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub section (1), shall, subject to the provisions of this sub section, be deemed to have had no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a court, any such sub lease assignment or transfer or any such purported sub lease, assignment or transfer in favor of any person who has entered into possession despite the prohibition in sub section (1), as a purported sub lease, assignee or transferee and has continued in possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual for all purposes, and any tenant 569 who has sub let any premises or part thereof, assigned or A transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of section 13". It is contended for the appellant that as the respondent conceded before the Court of Small Causes that Manekchand was a lawful sub tenant, the High Court should have held that a sub tenancy created by such sub tenant must be deemed valid by reason of sub section (2) of section 15 of the Bombay Rent Act. It is urged that the High Court erred in construing Jai Singh Morarji (supra) as laying down the contrary. The case for the respondent is that sub section (2) of section 15 benefits a sub tenancy created by the original tenant only and does not extend to a sub tenancy created by a sub tenant. There can be no doubt that upon the amendment of sub section (1) of section 15 by the Ordinance and by its related Act the prohibition against sub letting did not operate in those cases where the sub letting was permitted by contract between the landlord and tenant. In all such cases, if the landlord had permitted the tenant under a contract between them to sublet the premises, no question would arise of a need to validate those sub tenancies. The relevant amendment in subs. (1) of section 15 was deemed to have always been part of the sub section. It is in this light that we must determine the scope of sub section (2) of section 15. Sub section (2) of section 15 raises the ban from all sub letting effected before May 21, 1959, the date of commencement of the Ordinance, provided the provisions of that sub section are fulfilled. Any such sub lease shall be deemed to be valid provided the sub lessee has entered into possession before the date of commencement of the Ordinance and has continued in possession on such date. This is an especial provision and marks a departure from the general law. It does not refer to sub tenancies which are permitted by contract between the landlord and the tenant, but relates to sub tenancies which are not so protected. It will be noted that the removal by sub section (2) of section 15 of the prohibition is limited only to those sub tenancies which were created before May 21, 1959. Such a limitation would be inappropriate to sub tenancies permitted by contract which could be created regardless of whether they were brought into existence before May 2l, 1959 or after that date. Also, the sub tenancies covered by sub s (2) of section 15 would be regarded as valid only if the sub tenant had entered into possession before May 21, l959 and was continued in possession on that date. Such a requirement would be wholly inconsistent in the case of sub tenancies permitted by contract. Inasmuch as sub s.(2) of section 15 specifically attaches the condition that the 570 sub tenant should have been in possession before the commencement of the Ordinance and should have continued in possession on that date, it is apparent that such a provision could be related only to illegal sub tenants, that is to say sub tenants who were let in and given possession without any contractual right conferred by the land lord on the tenant to do so. The protection conferred by sub section (1) of section 15 is necessary for such tenancies only, and not for a sub tenancy which is permitted by the terms of the contract and which therefore falls altogether outside the prohibition embodied in sub s.(l) of section 15. The result, therefore, is that sub section (2) of section 15 relates to sub tenancies not permitted by contract between the landlord and tenant and which would. but for the said sub section (2), fall within the prohibition enacted in the amended sub section (1) of section 15. In the present case, it was conceded on behalf of Gold Field before the Appellate Bench of the Court. Of Small Causes that Manekchand was a lawful sub tenant He could not have been a lawful sub tenant by virtue of sub section (2) of section 15 because on May 21, 1959 he was not in possession of the premises, which in fact had already passed as early as 1952 into the possession of Tota Singh. Manek chand could have been lawful sub tenant only on the assumption that the sub tenancy was permitted under the contract between Gold Gold Field and their landlord. As the existence of such a term in the contract would be a question of fact, the concession by counsel for Gold Field must be regarded as binding in this case on Gold Field. It is urged for the respondent that the concession made by counsel for Field can be of no avail because any agreement by a tenant creating a sub tenancy, being directly opposed to sub section (I) of section 15 as originally enacted, would be void The submission, it seems to us, is without force. It must be remembered that sub section (I) of section 15 was amended by inserting the words "but subject to any contract to the contrary" in 1959 retrospectively, the words being deemed always to have been inserted in that sub section. We must take it by reason of the legal fiction employed that those words were already part of the sub section when Gold Field agreed to sub let the premises to Manekchand. The cases, P.D. Aswani vs Kavashah Dinshah Mulla(l) and Waman Shriniwas Kini vs Ratilal Bhagwandas and Co.,(2) on which learned counsel for the respondent relies, were decided before sub section (1) of section 15 was amended and therefore did not take into account the effect of such amendment. (1) [1953] 56 Bombay Law Reporter 467. (2) [1969] supp. 2 S.C.R. 217. 571 Therefore, the present case is one where Gold Field is a tenant, A Manekbhai is a lawful sub tenant and the latter has created a further sub tenancy in favor of Tota Singh. The question is whether the further sub tenancy can fall within the scope of sub section (2) of section 15. Now, if regard be had to clause (I) of sub s (l l) of section 5, it is apparent that in respect of the subsequent subtenancy Manekbhai could be described as a tenant and Tota Singh as his sub tenant And if that is so, there is no reason why Tota Singh 's sub tenancy should not be regarded as a valid sub tenancy in as much as it was created before May 21, 1959 and he had entered into possession of the premises before that date and was continuing possession on that date. But it is urged on behalf of Gold Field that this Court has held in Jai Singh Morarji (supra) that sub s (2) of section 15 does not validate a sub tenancy created by a sub tenant. That was a case where the original landlord filed a suit against the tenant Ochhavlal for possession on the ground, inter alia, of illegal subletting by Ochhavlal. The suit was decreed, and the plaintiff obtained possession. Ochhavlal had sub l t the premises to Sovani and Sovani had sub let them to a private limited company. On application by the Company against dispossession in the execution proceedings, the trial court upheld the Company 's claim to possession, but this Court ultimately rejected the Company 's claim and upheld the right of the original landlord to possession. The facts of that case disclose that there were two prohibited" sub tenancies, the first was created by Ochhavlal in favor of Sovani and the subsequent was created by Sovani in favor of the Company. The benefit of sub section (2) of s 15 could have been extended to Sovani only if the conditions of the sub section were satisfied If they were satisfied in the case of Sovani, the benefit could not be extended again in favor of the Company. That would obviously be so because the condition as to possession on May 21, 1959 could not possibly be satisfied by the subsequent sub tenant if the original subtenant was in possession on that date. If, however, the subsequent sub tenant was in possession on May 21, 1959, then clearly neither sub tenancy can be regarded as valid. To be valid, the first subtenancy had to satisfy the condition of possession by that sub tenant on May 21, 1959, which ex hypothesi was not possible. And if the original sub tenancy was invalid the subsequent sub tenancy would also be invalid. The subsequent sub tenancy would be valid only if the original sub tenant had legal interest to transfer to the subsequent sub tenant. It is in the light of this analysis that the decision of this Court in Jai Singh Morarji (supra) needs to be appreciated, in particular the passage on page 607 of the Report which reads: 572 "The answer to the question is whether the respondent Private Company was a sub tenant prior to 1959 and continued in possession at the commencement of the Ordinance in 1959. Ochhavlal in the present case gave the sub lease to Sovani before the Ordinance. It is an indisputable feature in the present case that Sovani did not continue in possession at the commencement of the Ordinance of 1959. Sovani became a Director of the Private Company. It is the Private Company which claims to be a sub lessee. The Private Company was in the first place not a sub lessee of the tenant but a subsequent assignee from the sub lessee. Secondly, SOvani who was the sub lessee not in possession on the date of the Ordinance on 21 May, 1959. It was the Private Company which was in possession. Therefore, the Private Company is not within the protection of section 15 (2) of the Act " The learned Judges were not unaware of the terms of sub section ( 1) of section 5, as is evident from the passage on page 608 of the Report. It is then urged by learned counsel for the respondent that clause (a) of sub section (11) of section S of the Bombay Rent Act cannot be called in aid by the appellant as sub section (1) of section 15 applies to contractual tenants only. We are referred to Anand Nivas (P) Ltd. vs Anandji,(1) where this Court laid down that the expression "tenant" in sub section (1) of section 15 of the Bombay Rent Act means a contractual tenant and not a statutory tenant. The submission can be of no assistance to the respondent. Having regard to the concession made by counsel for Gold Field in the court below that Manekchand was a lawful tenant, which position, as we have discussed earlier, necessarily implies a valid contract of tenancy between Gold Field and Manekchand the latter must be regarded as a contractual tenant when he sublet the premises to Tota Singh. No question arises of a statutory tenant purporting to sub let his interest to a sub tenant. Upon the aforesaid considerations, in our judgment the appeal must succeed. The appeal is allowed with costs. N.V.K. Appeal allowed. (1) [196414 S.C.R. 892.

Muthammal, the absolute owner of the suit properties, executed a Deed of Settlement dated May 17, 1925 (exhibit A 3) whereby she endowed the suit properties to a temple of her family deity. She constituted herself as the first trustee for her life and after that, her husband and mother were to be the trustees and after their demise, the respondents ' heirs were to be the trustees. Five years later i.e. On January 28, 1930, she purported to cancel and revoke the trust (settlement), by getting the Deed of Cancellation registered. Thereafter, certain mortgages were executed by her in respect of the properties and later on the properties were sold by her to the father of appellants Nos. I and 2. She died on October 1, 1960. The respondents plaintiffs, claiming to be the trustees of the endowment, filed a suit on August 29, 1962 for possession of the properties challenging the alienations that were made in favour of the appellants ' father. The appellants contested the suit and raised the plea of adverse possession and the suit being barred under Article 144 of the Act. The trial court held that the Deed of Settlement itself was not a genuine deed, but even if it were, the suit was barred under Article 144. In the appeal by respondents plaintiff, the Appellate Court held that Deed of Settlement was valid and genuine and in fact it effected a legal endowment in favour of the diet, the original settlor having disvested herself of the ownership completely and consequently the Deed of Cancellation was ineffective in law. The suit was regarded as one falling under article 134B of the Act and the suit having been filed within 12 years from the death of the settlor was held to be within time and the respondents Plaintiffs ' ' suit was decreed. In the second appeal filed by the appellants, the High Court confirmed the first Appellate Court 's decree. 810 on appeal to this Court, the appellants, relying on the decision in Srinivas vs Ramaswami,[1966]3 S.C R 120, contended that there was a resignation on the part of the settlor as a Trustee and such resignation, if not overt and express, must be deemed to have taken place by reason of the fact that she herself had executed and registered the Deed of Cancellation (Ex. B 1) on January 21, 1930 and thereafter she had alienated the proper ties in favour of the appellants ' father and she even left the village for quite a few years and since the suit was filed in the year 1962, long after the expiry of 12 years from such deemed resignation, it was barred. The respondents plaintiffs, however, contended that there was no plea of limitation specifically raised on the basis that there was any deemed resignation on the part of the settlor and as the parties did not lead any evidence focussing their attention on this aspect of the matter and if there be some evidence vaguely or generally led by the parties on this aspect the same should be ignored. alternatively, it was contended that even other wise by the mere execution of a Deed of Cancellation and indulgence in alienations of properties by the settlor in favour of the appellants ' father no deemed resignation should be implied for a wrongful Cancellation Deed, and a wrongful alienation cannot affect her character as a trustee of the properties under the Deed of Settlement which was complete and under which she had divested herself of the ownership of the properties irretrievably. The starting point of limitation for the suit must be held to be the date on which the settler died. Dismissing the appeal, ^ HELD: 1. Limitation in the instant case, will have to be regarded as having commenced on the date of the death of the settlor and the respondents plaintiffs ' suit would be within time. [814E] 2. Where a trustee wrongfully alienates some trust property and even if the entire trust property is alienated, he does not cease to be a trustee. By wrongfully executing a Deed of Cancellation the settlor cannot effectively revoke the settlement and if such settlor happens to be the trustee he shall continue to be the trustee of the settlement. [813 a F] In the instant case, there is a clear finding recorded by the first Appellate Court, and the High Court that the Deed of Settlement dated May 17, 1925 was valid and complete in all respects where under the settlor had divested herself of the properties which she had endowed to the temple, and both the Cancellation Deed as well as the alienations were ineffective and wrongful and, therefore, it could not be said that by indulging in these acts she had resigned her position as a trustee of the endowment. [813 F G] (3) The fact that the settlor had left the village for a few years is neither here nor there. The facts regarding performing of Puja of the deity in the temple by some other persons and contribution towards the expenses of the temple by some devotees are really equivocal and would not be conclusive of the matter on the point of the settlor having resigned inasmuch as the temple which was a village temple was already in existence, 811 to which only properties had been endowed and the temple was a public A religious institution to which the endowment had been made and as such the fact that certain expenses of the temple were contributed by devotees or members of the public would hardly be indicative of the fact that the settlor had resigned from the position as a trustee qua the endowed property. Similar, would be the position with regard to the fact that some persons were performing the Puja which would not be unnatural in the case of a public religious institution. [813H; 814A C] There could conceivably be a deemed resignation or a deemed removal but for inferring the same some additional facts would be required to be proved. The facts on which reliance had been placed by the appellants by themselves are insufficient to warrant the inference that there was a deemed resignation [814C D] Srinivas vs Ramaswami, [19661 3 S.C.R. 120, referred to.

minal Appeal No. 217 of 1966. Appeal by special leave from the judgment and order dated September 16, 1966 of the Bombay High Court in Criminal Appeal No. 1349 of 1965. R. Jethamalani, N. H. Hingorani and K. Hingorani, for the appellant. D. R. Prem and section P. Nayyar, for the respondent. The judgment of the Court was delivered by Hidayatullah, J. On November 16, 1964, the shop of the ap pellant Govani situated in Suklaji Street, Bombay was searched by the Enforcement Branch of the Reserve Bank of India. Nothing incriminating from the point of view of the Reserve Bank was found in the shop but a large number of watches, clocks, cigarette lighters, cameras, transistors, tape recorders, etc., were found. The officers of the Enforcement Branch appear to have informed the customs authorities. The Assistant Collector of Customs thereupon issued a warrant for the search of the premises under section 105 of the . This warrant was made out in the name of Preventive Additional Chief Inspector R. C. Dutta, Preventive Inspector P. N. Ramchandani and Preventive Officers Ranade, Thakur and Menon. It was stated in the warrant that there were 417 reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the proceedings were secreted in the shop. The officers were accordingly charged with the duty to search and seize such prohibited and dutiable goods, documents and things in the shop under section 110 of the Act. The search was effected and the goods above mentioned were seized. Some of the watches were returned as they were old and given for repairs. The other watches were seized. Proceedings for the confiscation of the goods and for penalties were started by Dutta and a summons under section 108 of the Act was issued to Govani. He could not prove that the goods had borne the necessary customs duties. The Additional Collector of Customs, Bombay thereupon sanctioned his prosecution under section 135(b) of the Act. The trial took place before the Presidency Magistrate (19th Court), Bombay. Govani was charged on two counts, under. 135(a) and section 135(b) of the . Two witness es were examined at the trial. Preventive Officer, Customs, Ranade deposed to the seizure of the goods. As the search was under the direction of Dutta, Ranade admitted in cross examination that he was told by Dutta that information had been received that Govani had secreted some contraband articles in his shop. He admitted that Dutta decided which of the watches were to be seized and which were to be released. Ranade, however, stated that he had asked Govani to produce bills regarding the watches but Govani produced none. He had also asked Govani to produce the account books but Govani again did not produce any. The second witness Nanvani only proved the seizure of the contraband goods and the exhibits in the case. He was not cross examined. Govani did not lead any evidence in his own behalf. He was examined under section 342 of the Code of Criminal Procedure and admitted that he had neither imported the watches nor paid customs duty on them. He stated that he had purchased the watches from certain customers, sometimes one and sometimes two or three from the same customer. He had no defence evidence to lead but filed a written statement and claimed that no offence had been disclosed against him in the prosecution case as laid before the court. He analysed section 135 of the Act and stated that the gist of the offence was that he should have known or have had reason to believe that the contraband goods had not been customed. He stated that under section 123 of the Act, the burden would have been on him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to such belief. This statement was filed on July 15, 1965. The following day, the prosecution applied for the examination of Dutta, Inspector of Customs, Bombay as a court witness in the interests of justice. 418 This application was opposed by Govani. The Magistrate, however, by his order dated July 26, 1965, ordered the examination of Dutta under section 540 of the Code. Dutta stated that he had seized the watches in the reasonable belief that they were smuggled. Govani was thereafter examined again and was given an opportunity to lead defence evidence. He stated that he had nothing further to add and no defence evidence to lead. The Magistrate. after considering the arguments, convicted Govani under sections 135(a) and 135(b) of the awarding him a sentence of one year 's rigorous imprisonment and a fine of Rs. 2,000/ (in default, further rigorous imprisonment for six months) on each of the two counts. The watches were also ordered to be confiscated. Govani appealed to the High Court. His main contention was that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The High Court rejected these contentions and accepting the testimony of the witnesses on facts, upheld the conviction. Govani now appeals to this Court by special leave. The grant of special leave is limited to the questions whether the evidence of Dutta was improperly received by the Magistrate and whether, if excluded, the conviction of Govani can be supported. The question falls to be considered under section 540 of the Code ,of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous '. It provides : " section 540 : Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case. " The section gives a power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the COURT to act as the exigencies of justice require. Another aspect of 'his power and complementary to it is to be found in section 165 of the Indian Evidence Act which provides: " section 165 : The Judge may, in order to discover or to obtain proper proof of relevant facts,, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or 419 thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question These two sections between them confer jurisdiction on the Judge to act in aid of justice. The Presidency Magistrate, Esplanade, in, dealing with the petition to call Dutta passed an order on July 26, 1965 in which he remarked that there was no gap or lacuna in the prosecution case to fill because Dutta was named as one of the witnesses and as the officer who had seized the watches. He held that the evidence of Dutta was necessary for the just decision of the case. He accordingly granted leave for the examination of Dutta. In view of the fact that he spoke in the language of the second part of section 540, it is reasonable to think that he exercised the powers conferred on him under the second part although his order is not clear as to which part he had in mind. He, however, ruled that Govani would be further examined under section 342 of the Code of Criminal Procedure and allowed to lead further evidence. This action of the Magistrate which was approved by the High Court, is challenged before us. It is submitted that the powers under section 540, however wide, must be reconciled with the mandatory requirements of Chapter 21 laying down the procedure of trial of warrant cases by Magistrates. It is pointed out that the trial had gone through the stage of taking evidence for the prosecution (section 252), framing of the charge (section 254), recording of the plea (section 255) and the defence (section 256) of the accused and as Govani did not wish to lead evidence. (section 257), it had reached the stage of section 258 and the court could either acquit or convict him. It is, therefore, submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under section 135 (a) and (b) of the and of placing the burden upon Govani to rebut the presumption that the goods were smuggled. This, it is said, is not only unfair but unjust and cannot be regarded as falling within the powers of the court, however, wide the language of the section. We shall consider these objections and refer to the rulings which were cited before us in support of them. To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under section 540. Offences under .he Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and war5 Sup. C.I./67 13 420 rant cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under section 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there. Section 540 is intended to be wide as the repeated use of the word 'any ' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may ' in the first part and of the word 'shall ' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not sum moned, and (c) recall or re examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart, The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in. words which are oft quoted : "There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown." (Reg. vs Frost)(1). There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power (1) at 386. 421 is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex vs Dora Harris(1) : "The cases of Reg. vs Chapman ; and Reg. vs Holden ; establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right." However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in Reg. vs Frost(2) even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, "that the practice should be limited to a case where the matter arises eximproviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue" and cites the case of Reg. vs Haynes(3) where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris 's(1) case, five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power. Mr. Jethmalani relies strongly upon this case and cites several decisions of the High Courts in India in which this dictum was applied. In particular he relies upon In re K. V. R. section Mani(4 ), Shreelal Kajaria vs The State(5) and In re V. Mahadevan(6). In these cases it is laid down that the powers under section 540 of the Code of Criminal Procedure, wide though they may be, must not be exercised to the disadvantage of the accused, particularly after his defence is over. There is nothing new in these cases. They follow in essence the decision in Reg. vs Frost(2) as applied in Dora. Harris(1) case. (1) at 594. (2) 4St. (N.S.) 85 at 386. (3) [1859] 1 F. & F. 666. (4) I.L.R. [1951] Mad. (5) 1, (6) 422 On the other side reliance is placed upon In re K. K. Narayanali Nambiar(1), State vs Sheikh Mohamad Abdullah and others,(2), Ratnakar Das vs The State and others(3) and Ramjeet and others vs State(4) among others in which a liberal interpretation in favour of the court 's powers is placed upon the section. It is not necessary to refer to the cases cited on either side. They illustrate the application of the general principle spoken to by Avory J. in the extract from Dora Harris(5) case and the condition laid down in Reg. vs Frost(6) Dora Harris and Reg. vs Frost cases involved rebuttal of the defence evidence. In neither case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. It is difficult to limit the power under our Code to cases which involve something arising eximproviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris(5) case obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision. In William Sullivan(7) rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mckenna(8) it was held that a judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. In that case (like the one here) the defence had closed the case and the accused had submitted that there was no case to go to the jury. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and ,obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the ,court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but (1) A.I.R. 1942 Mad. (3) A.I.R. 1966 Orissa 102. (5) at 594. (7) (2) (4) I.L.R. [1958] All. 52. (6) at 386. (8) 423 if the court 's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. In the present case the position is this. In 1955, by a notification under the Imports and Exports (Control) Act, 1947, the import of watches, clocks and parts thereof except under a licence was completely stopped [Notification No. 17/1955 dated December 7, 1955 known as Imports (Control) Order, [1955]. Govani was found on November 16, 1964 to be in possession of 305 watches of foreign make. The warrant of search issued by the Assistant Collector of Customs recited : "Whereas there are reasons to believe that prohibited and dutiable goods liable to confiscation . are secreted in. Premises of Shri G. K. Gowani, Shop No. 20, Suklaji Street, Bombay, etc." The watches (among other articles) were seized by Dutta. He separated the old watches from the new and asked to see any document which would show that the watches were legitimately imported. Govani produced no document although a summons under section 108 of the was served upon him. The watches were, therefore, seized. There was evidence to show that in 1963 1,300 watches were seized from Govani 's locker in a safe deposit vault but the prosecution then had resulted in acquittal. The Magistrate and the High Court were of opinion that these circumstances might lead to a reasonable belief in the mind of the person seizing the watches, that they were smuggled. The prosecution examined Ranade, Prevention Officer, Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted. The question was why were the watches seized ? They were obviously not seized because they were stolen property or belonged to some other person. They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession. It is obvious that the just decision of the case required a finding whether they were smuggled or not. The circumstances already deposed to by Mukund Ranade and otherwise on the record clearly established that someone must have seized the watches entertaining a belief that they were smuggled. This belief obviously was entertained by Dutta. This was not a case in which the prosecution was trying to fill a gap in the pro secution case. The court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that Govani might be required, as the policy of the requires, to prove his innocent possession. Govani had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the 424 date of the seizures. He admitted this before and after Dutta 's evidence. In these circumstances it cannot be said that the court had exceeded its jurisdiction in acting under the second part of section 540 of the Code of Criminal Procedure. As Dutta 's evidence was rightly taken and gone into, and as Govani had no defence beyond taking advantage of the inadvertent omission, the defence had no merit. The conviction was, therefore, rightly reached. The appeal fails and is dismissed. R.K.P.S. Appeal dismissed.

The Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act, 1962 (Act 22 of 1962) was passed with the object of bringing uniformity in assessment of land revenue in the Telengana and Andhra areas of the State. It also provided for additional levies on certain classes of land. When the assessment of land revenue was sought to be collected from the respondents, they filed writ petitions in the High Court challenging the constitutional validity of the Act and the petitions were allowed. In appeal by the State to this Court. , HELD : The Act offended article 14 of the Constitution and was there fore void. Both in Andhra as well as Telengana area under the Ryotwari system, the land revenue which was a share of the produce of the land commuted in money value varied according to the classification of soil based upon its productivity; the soils of similar grain values were bracketed together in orders called 'tarams ' or 'Bhagana ' and the rates were further adjusted in the dry land having regard to the water supply. But in both the cases, the quality and the grade of the soil divided in 'Tarams ' or 'Bhaganas ' was the main basis for assessment. [37 E G] Sections 3 and 4 of the Act, in fixing the minimum flat rate for dry or wet lands, ignored the well established taram principle; and in the case of wet lands an attempt had been made to classify different systems on the basis of the ayacuts; but this test was unreasonable and had no relation to either the duration of water supply or to the quality or the productivity of the soil. The classification attempted in either case had No. reasonable relation to the objects sought to be achieved, namely, imposition of fair assessments and rationalisation of the revenue assessment structure. An arbitrary method has been introduced displacing one of the most equitable and reasonable methods adopted for many years in the revenue administration of the State. [44 C E] Further, the imposition of assessment was left to the arbitrary discretion of the officers not named in the Act without giving any notice, opportunity or remedy to the assessees for questioning the correctness of any of the important stages in the matter of assessment such as ayacut taram, rate or classification or even in regard to the calculation of the figures. It is not possible to read into the section the entire series of the Standing Orders of the Board of Revenue which deal with the mode of assessment: for if it was the intention of the Legislature that 29 the Standing Orders of the Board of Revenue should be brought into the Act by incorporation, it would have certainly used appropriates words to convey that idea. [45 D E; 48 E F] Kunnathat Thathunni Moopil Nair vs The State of Kerala, ; , East India Tobacco Co. vs State of Andhra Pradesh, ; and Khandige Sham Bhat vs The Agricultural Income tax Officer, ; , applied. C. V. Rajagopalachariar vs State of Madras, A.I.R. 1960 Mad. 543 and H. H. Vishwasha Thirtha Swamiar of Sri Pejavar Mutt vs The State of Mysore, , distinguished.

ivil Appeal Nos. 657 of 1979 & 2117 21 of 1977. From the Judgment and Order dated 20.1.1978 & 6.5.1976 of Allahabad High Court in Income Tax Rule No. 502/74 and Income Tax Reference No. 827 of 1973. S.B.L. Srivastava, Manoj Swarup and Lalita Kohli for the Appellants. J. Ram Murthy, K.P. Bhatnagar and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. The common question which arises for decision in these appeals by special leave is whether the interest paid on a debit balance of Rs. 1,75,310 taken over by the assessee firm from the erstwhile Hindu Undivided Family (HUF), would be an allowable deduction under Section 36(1) (iii) of the Income Tax Act, 1922. 922 The partners of the firm were members of the HUF which carried on business at Varanasi in the name of M/s Badal Ram Laxmi Narain. The family had no capital of its own and had been running business with the help of borrowed money. On 20 October 1951, there was partial partition in the family. As a result whereof the business of the family was partitioned between the members of the family. The members formed themselves into partnership and continued the same business. On the date of partition, there was a debit balance of Rs. 1,75,310 in the capital account of the family. This debit balance was transferred in equal proportion to the personal accounts of the three partners of the firm. The newly formed firm took over the business assets as well as liabilities of the HUF. The question arose as to whether the interest paid by the firm on the said debit balance was an allowable deduction in the computation of its income? One of the contentions urged for the firm was that the debit balance was taken over by the firm in consideration of the goodwill of the business. The Appellate Assistant Commissioner had held that the HUF business had no goodwill. The Tribunal did not agree with the Appellate Assistant Commissioner. It has observed that the business of the HUF was of a very long standing and the previous years returns and assessment of income prior to the date of partition indicated that the HUF had flourishing business. Since the running business was taken over by the assessee with the debit balance, the Tribunal expressed the view that the firm could be deemed to have taken the liability of Rs. 1,75,310 in consideration of the sale of goodwill and the interest paid thereon was an allowable deduction. The following question of law was referred to the High Court. "Whether on the facts and in the circumstances of the case, the assessee was entitled to the deduction of interest on a debit balance of Rs.1,75,310 taken over from the erstwhile Hindu Undivided Family?" The High Court examined the facts of the case to find out whether there was any sale of the goodwill. It observed that the goodwill of the HUF business was never sold or purchased. Had there been any such transaction, appropriate entries in the books of account of the HUF would have been made. The HUF should have credited the amount in its account in respect of the price paid for the goodwill and since there was no such entries, there could not be any inference that the firm has taken over the liability of Rs. 1,75,310 for the sale of goodwill. The High Court also has observed that the partners of the 923 firm were bound to take over the liability of HUF because, the liability was that of the family of which they were members and on partition every member became liable to discharge the debt according to his share. Clause (iii) of Section 36(1) applies only where capital has been borrowed for the purposes of the business or profession. The amount of interest paid on the borrowed capital is an allowable deduction. It is not in dispute and indeed cannot be disputed that if the goodwill is purchased out of the borrowed capital, the interest paid on the borrowed capital is an allowable deduction. The Tribunal has correlated the debit balance to the purchase of goodwill since the firm has taken over the running business. The High Court has held that there was no sale of goodwill by the HUF to the firm in view of the absence of related entries in the books of account of HUF. The conclusion of the High Court seems to be as much an inference as that of the Tribunal on the same set of facts and circumstances. It is important to point out that there was only a partial partition in the family, particularly with regard to HUF business. It was not necessary for the firm to have taken over the debit balance of the HUF since the HUF had other properties. The conclusion of the Tribunal that the firm has taken over the debit balance of Rs.1,75,310 in consideration of the sale of the goodwill, in the premises, stands to reason. Indeed, it seems to be neither unreasonable or unwarranted, nor arbitrary or unjust. The High Court ought not to interfere with such conclusion even if another view is possible. The second reason given by the High Court is also not acceptable. we are concerned with the rights of the assessee and not the liability of the individual members of the HUF. The claim of the assessee for allowable deduction of the interest paid cannot be defeated by the existence of personal liability of the members of the HUF. That is wholly beside the point. We are therefore, unable to sustain the order of the High Court. In the result, the appeal are allowed and the decision of the High Court is set aside. The question referred to the High Court in each case is answered in favour of the assessee and against the revenue. The assessee shall be entitled to one set of costs in this Court. N.P.V. Appeals allowed.

On the basis of the results of the combined Civil Services Examination held by the Union Public Service Commission for appointment to several Services and the position in the combined merit list for the Indian Police Service and Police Services, Group `B ' the appellant was appointed to the Delhi Andaman and Nicobar Police Service,also Known as DANIP. Subsequently when certain vacancies arose in the Indian Police Service, due to selected candidates not joining the Service, and only the reserved category vacancies were filled up by the candidates, who had been earlier appointed in DANIP Service, the appellant who came to occupy top position, represented to the authorities for filling the general vacancies also, but his request was turned down .Hence the appellant filed writ application before the High Court, which was dismissed in limine . In the appeal before this Court, on behalf of the appellant it was contended that since ultimately several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them, that since 54 vacancies were notified for general category and he was found qualified for the appointment, the respondent could not refuse to fill up the vacancies, and there was no justification to refuse to follow the procedure adopted in similar situation with respect to the reserved category, in regard to the general category vacancies also and that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up the vacancies until nonremained vacant, and by keeping the posts unfilled, they had acted arbitrarily. 568 On behalf of the respondent Union of India it was contended that the tentative service allocation for IPS was completed before the commencement of the foundational course for the IPS, and the process of final service allocation was closed after filling up certain vacancies, which had arisen, since the process for recruitment for the next year had already started, and hence the additional vacancies arising later remained unfilled, that the process followed in connection with the reserved category, was not followed in regard to the general category vacancies on account of vital differences obtaining in the relevant conditions in the two categories, and hence there was no discrimination or arbitrariness, in keeping the general category vacancies unfilled. Dismissing the appeal, this Court HELD: 1.1 Even if vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. [572A C] State of Haryana vs Subhash Chander Marwaha and Others,[1974] 1 SCR 165; Miss Neelima Shangla vs State of Haryana and Others, ; and Jitendra Kumar and Others vs State of Punjab and others, , referred to. 1.2 The appellant had not acquired a right to be appointed against the vacancy arising later on the basis of any of the rules, namely, Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3,4,6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 2(1)(a) and (c), 8 and 13 of the Indian Police Service (Appointment by Competitive Examination) Regulations, 1955.These Provisions do not indicate that all the notified vacancies are to be filled up.[573G,574B] 1.3 From the materials placed before the Court it is fully estab 569 lished that there has not been any arbitrariness whatsoever on the part of the respondent in filling up the vacancies in question or other vacancies. The process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. It is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded later. What is relevant is to see as to when the process of final selection was closed. Mere completing the formalities dose not give any right to appointment. [574E G] 1.4 The decision to adopt a different policy with respect to filling up of the reserved vacancies is justified on account of the special circumstances. The decision to depart from the confirmed policy was taken after consideration by the authorities of the position in regard to unavailability of qualified candidates from year to year adversely affecting the desired strength of the reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination. [575B]

: Criminal Appeal No. 69 of 1972. Appeal by Special Leave from the Judgment and Order dated 22 12 70 of the Calcutta High Court in Crl. Revision No. 697 of 1969. P.K. Chatterjee and Rathin Das for the Appellant. K.R. Chowdhary for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C.J. On December 5, 1967, the Baranagore Municipality served a notice on the respondent alleging that he had erected an obstruction over the main municipal drain without the permission of the Administrator of the Municipality and calling upon him to remove the same within fifteen days of the date of receipt of the notice. A similar notice was sent to the respondent by registered post which he received on December 7. On the respondent 's failure to comply with the requisition the Municipality, through the appellant who is its Law Assistant, filed a complaint against him under section 240(1)(b) read with section 500(1)(b) of the Bengal Municipal Act, XV of 1932, ("The Act"). The respondent took a preliminary objection to, the maintainability of the complaint on the ground that since the prosecution was not instituted within six months next after the commission of the offence, it was barred by limitation under section 533 of the Act. That objection having been rejected by the trial court, the respondent filed a revisional application in the Calcutta High Court. It will not be quite accurate to say that the respondent 's objection, in the form in which it was taken by him, was upheld by the High Court, but the High Court did dismiss the complaint on the ground that it was barred by limitation. The judgment of the High Court rests on when 741 the period of six months began to run than on how the six months ' period is to be reckoned. Being aggrieved by the judgment of the High Court dated December 22, 1970 the Municipality has filed this appeal by special leave. Section 240(1)(b) of the Act provides to the extent material that the Commissioners may issue a notice requiring any person to remove any obstruction or encroachment which he may have erected upon any public street, drain or watercourse and which remains so erected after the period covered by any permission given in that behalf has expired. The notice dated December 5, 1967, was given by the Municipality to the respondent under this provision. The relevant part of section 500(1)(b) of the Act provides that whoever commits any ' offence by "failing to comply with any direction lawfully given to him or any requisition lawfully made upon him" under any of the provisions of the Act, shall be punished with fine which may extend to the amount mentioned in the third column of the table following that section. Section 533 of the Act prescribes a period of limitation for filing prosecutions under the Act by providing that no prosecution for an offence under the Act shall be instituted "except within six months next after the commission of such offence". The narrow question for determination in this appeal is whether the prosecution was instituted in the instant case within six months next after the commission of the offence as required by section 533 of the Act. For a proper appreciation of this question it is necessary to advert briefly to the scheme of the Act because, without a proper appreciation and understanding of what in fact constitutes an offence for the present purposes, it will be impossible to resolve the question as to whether the prosecution is barred by limitation. Section 240(1) of the Act confers by its three clauses various powers on the Commissioners. Under clause (a) the Commissioners may, without giving a notice, remove any obstruction or encroachment which has been erected without obtaining the requisite permission. Clause (b), on its true reading, empowers the Commissioners to issue a notice requiring any person to remove an encroachment which has been erected without permission or which remains erected after the expiry of the period covered by a permission granted in that behalf. Clause (c) of section 240(1) confers upon the Commissioners the power to remove without notice any materials or goods which have been deposited in a public street without the requisite permission or which continue to be deposited after the permission has expired. The person to whom a lawful direction has been given or upon whom a lawful requisition has been made through notice under section 240(1)(b) has to carry out the 742 direction or comply with the requisition, as the case may be. Failure in that regard attracts penal consequences. Though clause (b) of section 240(1) does not expressly provide that the Commissioners may permit such time as they think fit for the removal of the encroachment, it is implicit in the power conferred by that clause that by a proper direction or requisition, the Commissioners can allow for the removal of the encroachment such time as they consider reasonable in the circumstances of the case. Section 500(1)(b) of the Act creates a somewhat artificial offence which, it must be remembered, does not consist in the original act of erecting the obstruction or encroachment but in "failing to comply with any direction lawfully given" to a person or "any requisition lawfully made upon him". Respondent having been allowed by the notice dated December 5,1967 a period of fifteen days for the removal of the encroachment alleged to have been erected by him, it is plain that within and during that period he could not have been prosecuted under section 500(1)(b) for failure to comply with the direction or requisition. The reason simply is that by the terms of the very notice which contained the direction or requisition, he was at liberty to remove the encroachment at any time within fifteen days after the receipt of the notice. In other words, failure to comply with the direction or requisition occurred for the first time, within the meaning of section 500(1)(b), on the expiry of fifteen days after December 5, that is to say, after the expiry of December 20. A proper appreciation of this scheme will facilitate the understanding of the true position, namely, that since the offence under section 500(1)(b) for which the respondent is being prosecuted consists of his alleged failure to comply with the particular direction or requisition, and since such failure occurred for the first time after December 20, the period of limitation prescribed by section 533 of the Act for instituting the prosecution will commence to run on the expiry of 20th December. It is impossible to accept the submission made by the respondent 's counsel that the offence must be deemed to have been committed when the obstruction or encroachment was erected, which of course would be prior to December 5, 1967, when the Municipality served the notice on the respondent. It may perhaps be that constructing an encroachment or obstruction on a public street may itself amount to an offence under some provision or the other of the Act, but we need not go into that question because the offence for which the respondent is being prosecuted does not consist in his erecting the encroachment or obstruction on a public street but in his failure to remove it within the 743 period allowed to him by the notice. The error into which the High Court fell was to hold that the offence was committed on December 5, being the date on which the Municipality gave the notice to the respondent to remove the encroachment. On that date no offence indeed was committed because, as stated above, the offence charged against the respondent consists in his failure to remove the encroachment within the time allowed by the Municipality by its notice. We must, therefore, proceed on the basis that the failure to remove the encroachment having occurred on the expiry of December 20, limitation began to run for the purpose of section 533 on that and not on any earlier date. The only question which then requires examination is whether the prosecution which was filed on June 19, 1968, was instituted as required by section 533, "within six months next after the commission" of the offence. An argument was raised in the High Court that "six months" must be construed to mean 180 days and not six calendar months. The High Court does not appear to have accepted that submission. There the High Court is right, because section 3(27) of the Bengal General Clauses Act, I of 1899, defines "a month" to mean a month reckoned according to the British calendar. The expression "six months" which occurs in section 533 of the Act must accordingly be construed to mean six calendar months and not 180 days. The offence, being alleged to have been committed on the expiry of December 20, 1967, and the prosecution having been instituted on June 19, 1968, the provisions of section 533 must be held to have been duly complied with. To sum up, we are of the view that the offence charged against the respondent consists, not in the erection of an obstruction by him, but in his failure to comply with the direction lawfully given to him to remove that obstruction; that the offence must be deemed to have been committed by the respondent, if at all, not on the date of the notice viz. December 5, 1967 nor on any anterior date but on the expiry of the period permitted to him for removing the obstruction viz. on the expiry of fifteen days after the receipt of notice; and that, the expression "six months" which occurs in section 533 of the Act means six calendar months and not 180 days. For these reasons we set aside the judgment of the High Court and send back the case to the learned Magistrate for disposal in accordance with law. S.R. Appeal allowed.

The appellant was a Muafidar of the disputed land, in the erstwhile Bhopal State, while the first respondent cultivated the said lands as his tenant. When the M. P. L. R. Code, 1959, came into force, the first respondent claimed that the appellant, as the occupant of the lands within the meaning of S.2 (15) of the Bhopal State Revenue Act, 1932, had become a Bhumiswami u/s 158(C) of the Code of l959, while he himself had become an occupancy tenant u/s 185(1)(iv)(b) and as such, was entitled to conferment of Bhumiswami rights u/s 190 of the same Code. He ' applied to the Tahsildar, Huzur, for mutation of his name as a Bhumiswarni in the Revenue records. and was directed to deposit compensation equivalent to 15 times of the land revenue. Thereafter his name was recorded as a Bhumiswami of the holdings, on the deposit of the compensation money. The Muafidar appellant 's appeal to the sub Divisional officer, against the Tahsildar 's order, and a second appeal to the additional Commissioner. were dismissed, but the Board of Revenue allowed his revision application holding that he was not an occupant within the meaning of section 2(15) of the Bop Act of ]932. and that consequently the first respondent was neither a Chime, nor did he become an occupancy tenant under the M.P. Code of 1959, and therefore conferment of Bhumiswami rights on him was erroneous in law. , The first respondent filed a writ petition against the Revenue Board 's order, which was allowed by the High Court. Dismissing the appeal by certificate, the Court ^ HELD: 1. Under section 2(15) of the Bhopal State Land Revenue Act 1932, a person who holds and direct under the Government would be an ` 'occupant", in whatever name the payment of money may be described such as premium, rent, quit rent etc. On a careful analysis of the definition, it is legitimate to conclude that a Jagirdar or Muafidar is an occupant. He holds lands under the Government. On the resumption of the Jagir or the Muafi rights by the Government, the land reverts back to it. Payment of land revenue or rent for holding land under the Government was not a sine qua non for making the holder of the land an revenue. [585 A D, 586 D] Begum Suriya Rashid and Ors. vs State of Madhya Pradesh [19691] 1 SCR 869 held inapplicable. The rights of Shikmis were enlarged by operation of tile Madhya Pradesh Land Revenue Code. Under section 185(l)(iv)(b) a Shikmi became an occupancy tenant, while u/s 190, as an occupancy tenant, he became entitled, under certain conditions, to conferment of Bhumiswami rights of the occupant of he holdings. A B] 583

Civil Appeal No. 544 of 1981. From the Judgment and Order dated 23rd December, 1980 of the Madras High Court at Madras in Election Petition No. 1 of 1980. Dr. Y.S. Chitale, P.N. Ramalngam and A.T.M. Sampath for the Appellant. M.C. Bhandare, K. Rajendra Chowdhary and K.S. Chowdhary for the Respondents. A.V. Rangam for the Respondent No. 7. 975 The Judgment of the Court was delivered by CHINNAPPA REDDY, J. 3, 26, 112 adult men and women voters of Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted the candidature of the first Respondent, B. Devarajan for the reserved seat, apparently considered him as a member of the Scheduled Castes, voted for him and elected him to the Lok Sabha, by a convincing majority of nearly sixty thousand votes at the election held in January 1980. And, it was not the first time. He was in fact a sitting member of the Lok Sabha having been elected from the same reserved constituency at the previous general election also, But the verdict of the people was not sufficient for the appellant, section Anbalagan, who secured 1,76,240 votes in the January 1980 poll and lost the election. He wanted the verdict of an Election Tribunal on the question whether the respondent was a Charistian and not a member of the Scheduled Castes, as claimed by him. So he filed an election petition questioning the election on that ground. The Election Tribunal on an eleborate consideration of the evidence held that the appellant belonged to the Scheduled Castes and, on that finding, upheld the election. Anbalagan has preferred this appeal. Dr. Chitale, learned counsel for the appellant, canvassed the finding of the Election Tribunal that the respondent was a Hindu Adi Dravida and, therefore, a member of the Scheduled Castes. He argued that the parents and the sisters of the respondent were shown to be Christians and the respondent though obviously a Christian himself was pretending to be, a member of the Scheduled Castes for the purpose of gaining some advantages. He invited our attention to the Baptismal certificate and certain other documents and urged that the Respondent was born a Christian and there was no way he could acquire a caste and become an Adi Dravida on conversion to Hinduism. In order to properly appreciate the questions involved, it is necessary first to understand the legal position in regard to caste status on conversion or reconversion to Hinduism. In Administrator General of Madras vs Anandachari & Others(1), a learned single Judge of the Madras High Court held that the conversion of a Hindu Brahmin to Christianity rendered him, according to Hindu Law, an out caste and degraded. It was also observed that the degradation might be atoned for and the convert readmitted to his status as a Brahmin, if he at any time during his 976 life renounced Christianity and performed the rites of expiation enjoined by his caste. In Muthusami Mudaliar & Anr. vs Masilamani & Others(1) Shankaran Nair, J. explained at length the process of formation of castes and also pointed out how simple the matter of reconversion to Hinduism was when a Hindu changed his religion and later reverted back to Hinduism. In Gurusami Nadar vs Irulappa Konar(2), Varadachariar, J. explained the observations made in certain cases by Ananta Krishna Iyer, J. about the necessity of expiatory ceremonies for reconversion to Hinduism and pointed out that in those cases, the alleged reconversion was into the Brahmin community of Hindus and it was possible to suggest that certain vedic rites would have been adopted in such cases. Expiatory ceremonies, it was further pointed out, would be necessary if such was the practice of the community and not otherwise. One had, therefore, only to look to the sense of the community and no more. In Ramayya vs Mrs. Josephine Elizabeth(3) Venkatasubba Rao, OCJ and Venkataramana Rao, J. approved the observations of Varadachariar, J. and thought it unnecessary to pursue the matter further. Mookett and Krishnaswami Ayyangar, JJ. in Goona Durgaprasad Rao vs Sudarsanaswami(4) observed that a convert from the Baliji caste to Christianity, on reconversion went back into the fold of the Baliji community and where there was no evidence about the necessity for expiatory ceremonies, it was hardly right for the court to erect a barrier which the autonomy of the caste did not require, simply because, in some other community expiatory ceremonies were thought necessary. In Rajagopal vs Armugam and others(5), the appellant was elected from a constituency reserved for members of the Schedule Castes and the election was questioned on the ground that he was not a Hindu but a Christian and that he was not qualified be elected from a constituency reserved for the Scheduled Castes. The 977 court found that the appellant had become a Christian in 1949 and that from about 1967 onwards he certainly started professing the Hindu religion. The court however, held that the appellant had lost his Adi Dravida Hindu caste on embracing Christianity and, on the evidence before the court, it was not possible to hold that he had regained his caste on reconversion to Cinduism. The general question whether membership of a caste could be acquired by conversion or reconversion to Hinduism was not decided in the case, Rajagopal, who succeeded at the election held in 1967, but whose election was set aside on the ground that he was a Christian and not a member of the Scheduled Castes and Armugam who lost the election in 1967, but successfully challenged the election of Rajagopal by way of an election petition (vide Rajagopal vs Armugam(1) referred to in the previous paragraph) were again contestants at the election held in 1972 from the same constituency reserved for members of the Scheduled Castes, Rajgopal was again Successful in the election. His election was once more impeached by Arumugam. But this time Rajgopal farred better. His election was upheld first by the High Court and then by the Supreme Court: ; The Supreme Court held that the Question whether Rajagopal embraced Christianity in 1949 and whether he was reconeverted to Hinduism was concluded by the earlier dectsion of the court. The view of the High Court ie the immediate case before them that on reconversion to Hinduism, he could revert to his original caste if he was accepted as such by the other members of the caste was accepted as correct On the evidence, it was found that after reconversion to Hinduism he was recognised and accepted as a member of the Adi Dravida Hindu caste by the other members of the community. The court consisting of Chandrachud, J. (as he then was), Bhagwati and Sarkaria, JJ. noticed that it was not an infrequent phenomenon in South India for a person to continue to be regarded as belonging to his original caste even after conversion to Christianity The decisions of the High Court of Andhra Pradesh in Kothapalli Narasayya vs Jammana Jogi and K. Narasimha Reddy vs G. Bhupatti were noticed. It was then observed: "It cannot, therefore, be laid down as an absolute 978 rule uniformly applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste. It is true that ordinarily that on conversion to Christianity, he would cease to be a member of the caste, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations. There are castes, particularly in South India, where the consequence does not follow on conversion since such castes comprise from Hindus and Christians". The learned Judges than proceeded to consider the question whether Rajagopal could once again become a member of Adi Dravida caste even if it was assume that he had ceased to be such on conversion to Christianity. After referring to the Madras cases already noticed by us earlier, it was held: "These cases show that the consistent view taken in this country from the time Administrator General of Madras vs Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he has born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the csste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged provided of course the community is willing to take him within the fold . " ". . A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) 979 order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the 1st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the cast." In Perumal Nader vs Ponnuswami,(1) the question arose whether Annapazham, daughter of an Indian Christian and herself a Christian by birth. could be converted to Hinduism without the performance of any expiatory ceremonies ? The court held that formal ceremony of purification or expiation was unnecessary. It was observed: "A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a persion born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism, But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. " All the cases so far considered are from South India. To conclude the discussion, we may also refer to Vermani vs Vermani(2) and Ghatturbhuj Vithaldas Jasani vs Moreshwer Parashram & others(3) both of which are cases from elsewhere. In Virmani vs Virmani, a Full Bench of the Lahore High Court following the decision of the Madras High Court in ILR 1940 MADRAS 653 held that it was not necessary for a Hindu convert to Christianity to undergo any expiatory ceremonies before he could revert to his original religion. His conduct and the circumstance that 980 he was received by his community were sufficient to establish his reversion to Hinduism. In Chatturbhnj 's case, a question arose whether a member of the Mahar caste which was one of the Scheduled Castes continued to be a member of the Mahar caste despite his conversion to the tenets Mahanubhava Panth, a sect, the founder of which repudiated the caste system and a multiplicity of Gods. Bose, J. after noticing the complexities brought in the train of conversion, observed: "Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order. If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legsl and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the old body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order. " Bose, J. found that whatever the views of the founder of the Mahanubhava sect night have been about caste, it was evident that there had been no rigid adherance to them among his followers in later years. They had either changed their view or they had not been able to keep a tight enough control over converts who choose to retain their old caste customs. On a consideration of the evidence it was 981 found that the convert from the Mahar caste retained his caste even after conversion. These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for conversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social science, is so deep rooted in the Indian people that its mark does not seem to disappear only conversion to a different religion. If it disappears, only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu, there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of Caste. There are Christian Reddies, Christian Kammas, Ceristian Nadars, Christian Adi Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the casts fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose fore fathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion. Now, what are the facts of the present case ? The birth extract of the first respondent, Devarajan shows that his parents as Hindu Adi Dravidas. Through out his educational career, he was treated as a Hindu student belonging to the Scheduled Castes and was 982 awarded scholarships on that basis. The school records relating to his children also show them as Hindu Adi Dravidas. On one occasion in the admission register of a school, he was wrongly shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back as in 1948. He never attended a church. On the other hand, there is acceptable evidence to show that he was offering worship to Hindu deities in Hindu temples and that his marriage was performed according to Hindu custom and rites. Our attention was however, drawn to the finding of the Tribunal that the sisters of the first respondent professed Christianity as revealed by their service registers. Our attention was further invited to certain evidence indicating that the parents of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old. Even assuming that the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, we see no difficulty in holding, on the evidence in the case, that the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There is not a scrap of acceptable evidence to show that he ever professed Christianity after he came of age. On the other hand, every bit of evidence in the case shows that from his childhood, he was always practising Hindism and was treated by everyone concerned as an Adi Dravidh. There is then the outstanding circumstance that the voters of the Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted his candidature for the reserved seat and elected him to the Lok Sabha twice. We have no doubt whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed no religion other than Hinduism. The case was rightly decided by the Election Tribunal and the appeal is accordingly dismissed with costs. H.S.K. Appeal dismissed.

The first respondent, Tej Singh, won in legislative assembly election defeating the appellant by 123 votes and also 3 other candidates including Ruplal. The appellant challenged the election of Tej Singh on the ground that he was guilty of committing corrupt practices. The main corrupt practice said to have been indulged in by Tej Singh was that he had got circulated pamphlets and posters among the voters of the constituency wherein he had mentioned that Ruplal had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Ruplal, and the said posters were printed not by Ruplal but at the instance of Tej Singh. Allowing the appeal, ^ HELD . The effect of the posters was to mislead the voters so as to make them believe that one of the candidates, viz., Ruplal, had withdrawn and any vote given to Tej Singh would be considered as a vote given to Ruplal. in other words the effect of the posters was that the voters who would have voted for Ruplal would now cast their votes in favour of Tej Singh. As the margin of votes between the defeated and the returned candidates was very small, viz., 123 votes, if such a misrepresentation was not made, in all probability the votes would have gone to the appellant (Avtar Singh) and, therefore, the result of the election would have been materially altered. On a perusal of the evidence both oral and documentary adduced by the parties and in the circumstances of the case, the irresistible inference and inescapable conclusion that can be arrived at is that Tej Singh had actually paid for the posters which were printed at his instance and Ruplal was not connected p with the printing of the posters. In these circumstances the appellant has proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej Singh has been clearly admitted by him. [417 D E; G; 418 B]

ivil Appeal No. 258 of 1974 From the Judgment and Order dated 22.9.1972 of the Andhra Pradesh High Court in Appeal No. 549 of 1969. T.S. Krishnamurthy. G. Prabhakar and G. Narsimhulu for the Appellant. P.P. Rao, T.C. Gupta and G.N. Rao for the Respondents. The Judgment of the Court was delivered by DUTT, J. The only point that is involved in this appeal by special leave is whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not. In order to consider the point it is necessary to state a few relevant facts. Two brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter being re spondents Nos. 2 to 7 herein, constituted a joint Hindu family governed by the Mitakshara School of Hindu Law. On May 4, 1959, Rami Reddy executed a deed of settlement (exhibit A 1) in favour of his brother, Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a fife interest to himself and also providing that after his death, his brother should maintain his wife. Rami Reddy died in January, 1965 and shortly 239 thereafter his brother Veera Reddy also died in March, 1965. It appears that after the death of Rami Reddy, differences arose between his widow and the respondent No. 1, as a result of which the widow of Rami Reddy (since deceased) demanded a partition of her husband 's share which was gifted by her husband to his brother Veera Reddy. Thereafter, she file.1 a suit out of which this appeal arises for partition and recovery of her husband 's share after cancelling the deed of settlement (exhibit A 1), inter alia on the ground that it was a void document under the Hindu Law. The suit was contested by the respondents Nos. 1 to 7. The respondent No. 3 filed a written statement denying the plaint allegations. The other respondents adopted the written statement of the Respondent No. 3. The Trial Court, on a consideration of the evidence adduced on behalf of the parties held, inter alia, that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparceners. Further, it was held by the Trial Court that even assuming that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property Act, as the plaintiff 's husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit. In that view of the matter, the Trial Court held that the plaintiff was entitled to a sum of Rs. 1,200 per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint. The suit was, accordingly, decreed by the Trial Court. The defendant respondents filed an appeal before the Andhra Pradesh High Court. The High Court, however, did not agree with the finding of the Trial Court that the deed of settlement was void. It was held by the High Court that the deed of settlement was valid. The judgment and decree of the Trial Court was set aside and the suit was dismissed in so far as it related to the cancellation of the deed of settle ment and recovery of possession of the suit properties by way of partition. But the decree passed by the Trial Court awarding maintenance to the plaintiff at the rate of Rs. 1,200 per annum, that is to say, at the rate of Rs. 100 p.m. from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court. The appeal was allowed in part. Hence this appeal by special leave. During the pendency of this appeal in this Court the plain tiff, the 240 widow of Rami Reddy, died and the present appellant, who is her heir and legal representative, has been substituted in her place. It is not disputed that the deed of settlement (exhibit A 1) is really a deed of gift. It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellant, that in holding that the gift in question was legal and valid, the High Court committed an error of law in the face of the legal position particularly prevail ing in the erstwhile State of Madras of which the present State of Andhra Pradesh was a part, as recognised in several judicial decisions that a gift of coparcenary property by a coparcener without the consent of the other coparceners is void. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. So far as alienations of coparcenary property are con cerned, it appears that such alienations were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer vs Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council ob served as follows: " . . it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his sepa rate debt. . . . . But it appears . . . that, in order to support the alienation by one coparcener of his share in undivided property, the alienation must be for value. The Madras Courts, on the other hand, seem to have gone so far as to recognise an alienation by gift. There can be little doubt that all such alienations, whether voluntary or compul sory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, rounded upon the equity which a purchaser for 241 value has to be allowed to stand in his ven dor 's shoes, and to work out his rights by means of a partition. " Thus, the Privy Council also noticed that in Madras alienations by gift were recognised. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consid eration even without the consent of other coparceners. As has been observed by the Privy Council in Suraj Bunsi Koer 's case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor 's shoes and to work out his rights by means of a partition. After the above Privy Council decision, there has been a gradual growth in Madras of a particular legal position in regard to alienations by way of gift. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer 's case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest in coparcenary properties as void. The leading decision on the point is the case of Baba vs Timma and Ors., ILR FB, where it has been held that a Hindu father, if unseparated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was made by the father to a stranger to the detriment of the sons ' right in the property gifted. In Ponnusami vs Thatha and Ors., ILR , the gift was made by a brother to the children of his daughter. It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text. Thus, the cumulative effect ,of Ponnusami 's case and Baba 's case (supra) is that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations. In Ramanna vs Venkata, ILR a Hindu made a gift of certain land which he had purchased with the income of ancestral property, and a suit was brought to recover the land on behalf of his minor son, who was born even seven months after the date of the gift. It was held that the gift was invalid as against the plaintiff, and that he was enti tled to recover the land from the donee. Thus, a son, who was born to the family after the gift was made, was held entitled to recover 242 the property from the donee. In other words, he would not be bound by such an alienation. Again, in Rottala Runganathan Cheuy v Pulicat Ramasami Chetti, ILR it has been held that it is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; ' and such ,an alienation, if made, is void in toto. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne 's Hindu Law, Eleventh Edition, Article 382: "It is now equally well settled in all the Provinces that a gift or devise by a coparcen er in a Mitakshara family of his undivided interest is wholly invalid . . . . . . . . . . . A coparcener cannot make a gift of his undi vided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts. " We may also refer to a passage from Mulla 's Hindu Law, Fifteenth Edition, Article 258, which is as follows: "Gift of undivided interest. (1) According to the Mitakshara law as applied in all the States, no coparcerer can dispose of his undivided interest in coparcenary pro perty by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners. " It is submitted by Mr. P.P. Rao, learned Counsel appear ing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparce nary property by way of gift. The reason is, however, obvi ous. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparce nary property. By an alienation of his undivided interest 19 the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against 243 alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has de veloped gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the . Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper ty. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary proper ty. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a copar cener can dispose of his undivided interest in the coparce nary property by a will, but he cannot make a gift of such interest. Again, it may be noticed in this connection that under the proviso to section 6 of the , if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succes sion, as the case may be, under the Act and not by survivor ship. The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative. The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a coparcenary property will devolve by survivorship upon the surviving members of the coparcenary and in accordance with the provisions of the Act. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con sent of all other coparceners. Such a gift would be quite legal and valid. The High Court has noticed most of the above decisions and also legal position that a gift by a coparcener of his undivided interest in 244 the coparcenary property without the consent of the other coparceners is void. The High Court has also noticed the provisions of sections 6 and 30 of the . The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryak antara vs G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012. In that case, it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is not binding on the other coparceners. No authority has, however, been cited in support of that proposition of law. On the contrary, there is a long series of decisions since the decision in Baba vs Thimma and Ors., ILR some of which have been referred to above, laying down uniformly that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparceners is void. In the circumstances, it is very difficult to accept the proposi tion of law laid down in G. Suryakantara vs G. Suryanara yanamurthy (supra) that a gift by a coparcener of his undi vided interest in the joint family property is not void, but is only not binding on the other coparceners. When a partic ular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances. It is for the Legislature to consider whether it should change such law or not. It may be legitimately presumed that before the passing of the Hindu succession Act, 1956, the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided inter est by section 30 of the , altered the law against making of gift by a coparcener of his undivided interest. While considering whether the strict rule against alienation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the . In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantarn 's case (supra). In the instant case, the High Court has also noticed a decision of this court in A. Berumalakkal vs Kumaresan Balakrishnan and Ors., AIR , that a gift of a coparcenary property is not valid under the Hindu Law except for specified purposes. That case has been distinguished by the High Court on the ground that the question 245 of validity of such a gift on the ground of consent of other coparceners did not arise for consideration. We do not think that it was a reasonable distinction that could be made of the law laid down by this Court merely because the question of consent of other coparceners did not arise. This Court, therefore, also has laid down against the validity of a gift of an undivided share in the coparcenary property. Coming back to the facts of the case, we find that Rami Reddy made the gift for the common benefit of the donee as well as his sons as held by the High Court. It is submitted on behalf of the respondents that really it is a ,case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons. It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the coparce nary property to his brother. There is some force in the contention of the learned Counsel for the respondents that the gift should be construed as relinquishment or renuncia tion of his undivided interest by the donor in favour of the other coparceners. Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant to relinquish his interest in the coparcenany in favour of Veera Reddy and his sons. In this connection, we may refer to the following passage from Mulla 's Hindu Law, Fifteenth Edition, Article 264 at page 357: "article 264. (1)Renunciation ,or relinquishment of his share. A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renuncia tion enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renuncia tion or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. " Assuming that it is a renunciation in favour of one of the coparceners, namely, Veera Reddy, such renunciation enures for the benefit of all other coparceners and. not for the sole benefit of the 246 coparcener in whose favour the renunciation was made. In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners. The gift was, therefore, valid construing the same as renunciation or relinquishment by Rani Reddy of his interest in the coparcenary and, accord ingly, the consent of other coparceners was immaterial. In the result, the conclusion arrived at by the High Court is affirmed though on a different ground. The appeal is dismissed. There will, however, be no order as to costs. H.S.K. Appeal dis missed.

The first Respondent who was discharging the functions of a Public Relations Officer in the Bihar Irrigation De partment when that post fell vacant in 1979, filed a writ petition claiming the post for himself when another person was appointed to that post for six months. At the time of hearing, it was represented on behalf of the State that the other person had been appointed only on ad hoc basis for a period of six months and that after the expiry of that period, the matter would be referred to the Public Service Commission and that, at that stage, the case of the first Respondent would also be considered. On this assurance, the petition was allowed to be withdrawn on 19th December, 1979. However, the assurance was not respected and no reference was made to the Public Service Commission for making a regular appointment to the post, and, in April, 1983, yet another person was appointed to the post, again on ad hoc basis, and the same was challenged by 'another writ peti tion. When that petition was heard, the Advocate General informed the High Court that the appointment was only ad hoc and gave the impression that a regular appointment would be made after the expiry of six months and, on that representa tion, the High Court disposed of the petition on May 4, 1983, directing inter alia, that the post should be filled up in a regular way, and that, in case the appointment was not made within a period of six months, the ad hoc appoint ment shall stand terminated. The six months ' period was to expire on October 17, 1983, and according to the State Government, the Irrigation Department had written to the Public Service Commission on April 4, 1983 to give concur rence to the appointment of the ad hoc incumbent since it was an ex cadre post and he had been selected by a Selection Committee but that the concurrence was given only on. April 2, 1985 and thereafter the matter was further examined with reference to the provisions of the Rules governing reserva tions and a decision was taken to send a requisition to the Public Service Commission for advertising the post. Accord ingly, the post was advertised on May 12, 1985, setting out the eligibility criteria for selection to the post. The 2 advertisement was challenged by yet another petition on the ground that the eligibility criteria had been so drafted as to suit only the ad hoc incumbent of the post. The High Court, which summoned the relevant records from the Govern ment, felt, on their examination, that the direction given by it while disposing of the earlier writ petition on May 4, 1983 had been disregarded, and, issued notices to the appel lants calling upon them to show cause why they should not be punished for contempt for ignoring the order dated May 4, 1983. The appellants expressed regret but contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files, wheth er they were right or wrong, did not amount to contempt of Court, as no order had been passed appointing the ad hoc incumbent after October 17, 1983. The officials of the Public Service Commission pleaded that the appointment of the ad hoc incumbent from October 18, 1983 should be treated as a fresh appointment, that they did not know about the order passed by the High Court, and that though concurrence was given, it had been withdrawn when the correct facts were made known to them. The High Court, after going through the relevant files of the State Government and the Public Service Commission came to the conclusion that, although the State of Bihar as a juristic person was not liable for contempt for the reason that the Chief Minister had minuted that its order must be obeyed and the Chief Secretary had noted that the ad hoc incumbent should not be granted further ad hoc appointment, the appellants, inspire of the advice of the Advocate Gener al that taking any step to appoint the ad hoc incumbent would amount to contempt of Court, were busy trying to find out how to ignore its earlier order. The High Court further observed that when its earlier direction was that regular appointment should be made through the Public Service Com mission, there was no occasion for seeking the concurrence of the latter for the appointment of the ad hoc incumbent. According to the High Court, the whole file gave the impres sion that the appellant Officers were not reconciled to the orders passed by it earlier. In these premises, the High Court convicted the appellants for contempt and the ad hoc incumbent of the post for abetting contempt sentencing each of them to a fine of Rs.50 in default to suffer simple imprisonment for two weeks. Allowing the appeals and discharging the contempt orders passed by the High Court, HELD: Notings made by officers in the files cannot be made the basis of contempt action against each such officer who makes the notings. [10D] 3 (i) A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned. Till then, conflicting opinions, views and suggestions would have emanated from various officers at the lower level. There should not be any fetter on the fearless and independent expression of opin ions by officers on matters coming before them through the files. The expression of opinion in internal files are for the use of the department and not for outside exposure or for publicity. To find officers guilty for expressing their independent opinion, even against orders of courts in de serving cases, would cause impediments in the smooth func tioning of the Government. [9H; 10A C] (ii) Officers of the Government are often confronted with orders of courts which are impossible of immediate compliance for various reasons. They may find it difficult to meekly submit to such orders. On such occasions, they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the Court would not have passed those orders if full facts were placed before them. The notings differ from officer to officer. It may well be that the notes made by a particular officer, technically speaking, is in disobedience of an order of the Court or may be in violation of such order, but a more experienced officer sitting above him can always correct him. We must guard against being over sensitive, when we come across objectionable notings made by officers, some times out of inexperience, some times out of over zealousness and some times out of ignorance of the nuances of the question of law involved. [11A B] (iii) The functioning of the Government in a State is governed by article 166 of the Constitution. A study of this Article makes it clear that the notings in a file get culmi nated into an order affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor and authenticated in the manner provid ed in article 166(2). Viewed in this light, it cannot be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under re view. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. The expression of opinion in notes file at different levels by concerned officers will not constitute Criminal Contempt; it would not constitute Civil Contempt either, for the reason that mere expression of a view or suggestion will not bring it within the vice of sub section (c) ors. 2 of the , [12A E] 4 Bachhittar Singh vs State of Punjab, [1961] Supp. 3 S.C.R. 713, relied on. (iv) The internal notes file of the Government, main tained according to the Rule of Business, enjoys quasi privilege and a disclosure in such communications cannot be made the basis of an action in contempt. The general princi ple on which confidentiality of State documents should be protected is that if a person is involved in litigation, the Courts can order him to produce all the documents he has which relate to the issues in the case. Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see, or, at any rate, for the Court to see. When the Court directs production of these documents there is an implied understanding that they will not be used for any other purpose. The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved. [10E F] Home Office vs Harman, ; Harman vs Secretary of State for the Home Department, and S.P. Gupta ' vs Union of India, [1982] 2 S.C.R. 365, referred to. (v) In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file. That way the Court would have enhanced its prestige. [18B C]

ivil Appeal No. 1263 of 1968. Appeal by special leave from the order, dated November 2, 1967 of the Government of India, Ministry of Finance, Department of Revenue & Insurance, New Delhi in Central Excise Revision Application No. 1323 of 1967. K. Sen, S.V. Gupte, Rameshwar Nath, Mahinder Netrain and Ravinder Nath, for the appellant. V.A. Seyid Muhammad and S.P. Nayar, for the respondents. [ SIKRI, J. delivered the majority Judgment on behalf of himself and BACHAWAT, J. HEGDE, J. gave a dissenting Opinion]. Sikri, J. I have had the advantage of reading the draft judgement prepared by Hegde, J., but, while I agree with him that there is no force in the plea of limitation advanced on behalf of the assessee, in my opinion the appeal should fail on the ground that the excise duty was levied correctly as determined by the Central Government in its order, dated November 2, 1967. The facts are fully set out in the judgment of Hegde, 21 '. It is only necessary to mention a few facts in order to make this judgment readable. The assessee manufactures iron and steel products. It manufactured wires out of steel rods, which had been imported by it prior to April 24, 1962. Item 26AA was added to the First Schedule of the (I of 1944) hereinafter referred to as the Excise Act by Finance Act (No. 2), 1962 (XX of 1962) with effect from April 24, 1962. This reads as under: "26 AA.IRON OR STEEL PRODUCTS, THE FOLLOWING, NAMELY : (i)Bars,rods,coils,wires,joi Five per cent. ad volorem pl sts, girders, angles,channa us excise duty for the time ls,tees,flats,beams,zeds,tr being leviable on pig iron ough,pilling and all other or steel ingots,as the case rolled forced or extruded may be. shapes and sections,not other wise specified. (ii) Plates and sheets, other Seven and a half per cent.ad than plates and sheets inten valorem plus the excise duty ded for for 485 tinning and hoops, and str the time being leviable on ipe, all sorts,including pig iron or steel ingots as galvanised or corrugated the case may be. and sheets. (iii) Uncoated plates and Seven and a half per cent. sheets intended for tin ad valorem plus the excise ning. duty for the time being le viable on pig or iron steel (iv) Pipes and tubes ingots, as the case may be. (including blanks there fore)all sorts, whether Five per cent.ad valorem rolled,forged,spun,cast plus the excise duty for drawn,annealed,welded or the time being leviable extruded. on pig iron or steel ingots as the case may be. (v) All other steel Five per cent.ad valorem castings,not otherwise sp plus the excise duty for ecified. the time being leviable on steel ingots. ' The short point that arises is this: What is the duty leviable on the wires manufactured by the assessee out of steel rods which had already been imported ? For the time being I will ignore notifications issued under r. 8 (1) of the rules made under the Excise Act, and the amendments made by the Finance Act (No. 2) of 1962, and Indian Tariff (Amendment Act) 1963 (III of 1963) to the Indian Tariff Act, 1934. ' "Wires". are mentioned in item No. 26AA(i).Therefore we have to scrutinize the third column of item 26AA(i) for the rate of duty. Three points need clarification: (a) What is the meaning of or inference derivable from the word 'plus '? (b) What iS the meaning of the formula "the excise duty for the time being leviable on pig iron or steel ingots"? (c) What is the import of the words"as the case may be"? The word 'plus ' in the context indicates that the rate of duty consists of 2 parts: one part is ad valorem duty and the other is the excise duty calculated according to the formula given. In other words, both duties have to be levied. I will presently discuss what the formula means but this is clear that the third column contemplates one duty, consisting of two parts, being levied. Before I discuss the meaning of the formula it will clarify matters if the import of the words "as the case may be" is first ascertained. These words indicate that a choice has to be made between two types of excise duties excise duty leviable on pig iron or excise duty leviable On steel ingots, Sub items (ii), (iii) and (iv) of item 26AA use the same set of words. In sub item (v) excise duty leviable on steel ingots is only mentioned. This sub item consists of steel casting. This indicates that the duty is being calculated thus because steel castings have been made 486 from steel ingots. Item 26AA deals with iron 'and steel products. It seems to me that the context indicates that the words "as the case may be" denote that the excise duty leviable on pig iron is to be charged of the product is an iron product; if it is a steel product then the excise duty leviable on. steel ingots is to be levied. In other words, this decides the choice whether item 25 (pig iron) or item 26 (steel ingots) is to be looked at. Although 1 was not enlightened on the point by counsel during the course of the hearing, I have no doubt that the Excise Department and the trade know how to distinguish a steel product from an iron product. If there is a dispute on the point it will have to be resolved in the future. Now to come to the formula "the excise duty for the time being leviable on pig iron or steel ingots. " Let me give a simple problem in order to illustrate the points which ' arise under this head of inquiry. "A" manufactures a steel ingot 'X ' in May 1961 in Jamshedpur. He pays excise duty on it in May 1961 as he removes it out of the factory. Its value is determined at the wholesale cash price at the time of removal in accordance with section 4 of the Excise Act. Steel ingot 'X ' is sold to a manufacturer "B" in Faridabad who manufactures steel rods ( 'Y ' & 'Z ') out of it in May 1962 and removes them in May 1962. What is the excise duty payable on steel rods ( 'Y ' & 'Z ') ? Ad valorem duty is easy to calculate. What about the additional duty ? We know that the steel ingot 'X ' has paid excise duty. But this does not make any difference. The additional duty has still to be calculated under the formula. It is also plain that no excise duty is strictly leviable under sections 3 and 4 of the Excise Act on steel ingot 'X ' as such. Not only that it does not exist any longer but duty on it has already been paid and further no duty would be leviable under section 4 for it was removed from the factory long time ago in May 1961. Therefore, it is clear that the formula cannot be concerned with the particular ingot 'X ' at all. ' It seems to me that what it is concerned with is the duty leviable on a hypothetical steel ingot if it had been manufactured or removed at the same time as the steel rods ( 'Y ' & 'Z ') were manufactured or removed. In the example given above, under the formula the excise duty leviable under item 26 in May 1962 would have to be charged, i.e., 39.35 per metric tonne. The weight to be taken into consideration would be the weight of steel rods 'Y ' & 'Z ', and not of the steel ingot 'X ' out of which they were made. It seems to me that this is the true interpretation of column 3 of items 26AA(i). It simply prescribes a rate of duty as the heading of column indicates. It is not concerned with actual ingots out of which other articles are made. It is not concerned with whether that steel ingot has paid excise duty or countervail 487 ing duty or not. It is a simple formula perhaps inartistically formulated. It is said that the item should be strictly construed, it being a taxing enactment. But no rule or principle ,of construction requires that close reasoning should not be employed to arrive at the true meaning of a badly drafted entry in an Excise Act. I believe I am not stretching the language of the entry against the subject, but it, appears to me that in the context of scheme of the Excise Act this is the only reasonable construction to give to the entry. If it is permissible to look at the notifications issued by the Central Government which have given reliefs of various kinds, they seem to me to proceed on the interpretation which I have given above. It will be noted that they do not exempt the article from the levy of duty; they give relief which may in a particular case be the excise duty or countervailing duty levied on the article out of which the assessed article has been manufactured. To revert to the example given by me above, notification No.70/62, dated April 24, 1962, would exempt manufacturer B '"from so much of the duty of excise leviable on steel rods as is equivalent to .the duty leviable under item 26." Therefore, reading entry 26AA(i) with this notification, manufacturer 'B ' does not pay the whole of the duty leviable on steel rods ( 'Y ' & 'Z ') under col. 3 (item 26AA) because the steel ingot which he has used had already paid the appropriate amount of duty. I am not able to appreciate how the insertion of item No. 63 (36) in the First Schedule of the Tariff Act or the subsequent amendment of the Indian Tariff Act, 1934, by Indian Tariff (Amendment Act) 1963 throw any light on .the interpretation of item 26 AA(i). Item No. 63(36) is in respect of the same iron and steel products as are mentioned in item 26AA. Column 4 (standard rate of duty) reads: "The excise duty for the time being leviable on like articles if produced or manufactured in India, and where such duty is leviable at different rates the highest duty; and the duty so leviable shall be in addition to the duty which would have been levied 'if this entry had not been inserted. " The effect of this entry is to levy an additional customs duty equivalent to the prevalent excise duty on like articles produced and manufactured. In other words, if the customs duty leviable under other entries in the Second Schedule on steel rods is 'D ', an additional duty 'E ' has to be levied equal to the excise duty leviable on steel rods, i.e., under item 26AA. This has been called countervailing duty. 488 The manufacturer India, who used steel rods made in India, and made wires from them was given a certain relief by notification No. 77 of 1962, but the manufacturer in India who used steel rods made abroad to make wires was not first given this exemption. Later by amendments he was given a similar exemption. The ' Central Excise Manual (Seventh Edition) at p. 123 states the position thus: "26AA(2) Iron or Steel products falling under item No. 26AA, if made from another article falling under the said item or item No. 63 36) of the First Schedule to the Indian Tariff Act, 1934 (32 of 1934) and having already paid the appropriate amount of excise or countervailing customs duty, as the case may.be, are exempt with effect from 24th April, 1962, from so much of the duty of excise as is equivalent to the excise or countervailing customs duty payable on the said article ' vide Government of India, Ministry of Finance (Department of Revenue) Notification No. 89/62 Central Excise, dated 10th May, 1962 (issued in supersession of Notification No. 77/62 Central Excises, dated 24th April, 1962, as further amended by Notifications No. 93/62 Central Excises, dated 26th May, 1962, and No. 225/62 Central Excises,dated 29th December, 1962. " The only light thrown by these amendments. and the notifications referred to above is that it is not the idea to levy excise duty at various stages of manufacture of certain articles and this is achieved by issuing notifications giving appropriate reliefs. But if there is no relief given by notifications the full duty at the rate mentioned in col. 3 of entry (i) of item 26 AA has to be paid. In the result the appeal fails and is dismissed with costs. Bachawat, J. I agree with Sikri, J. Hegde, J. This is an appeal by special leave. It is directed against the order of the Government of India in No. 1323 of 1967, dated November 2, 1967 rejecting the appellant 's application for refund of the excise duty paid by him under protest. In order to appreciate the controversy between the parties it is necessary to set out the material facts. The appellant is a Company having a factory at Rishara in the State of West Bengal. It manufactures, among other items, Iron and Steel Products such as Jute Baling Hoops, Wire Ropes, Cold Rolled Strips, Chain Pulley Blocks, Electric Hoists.etc. Between December 1961 and January 1962 the appellant received various consignments of imported High Carbon Steel Wire Rods. Its opening stock of imported High Carbon Steel Wire Rods on April 24, 1962 was 489 2,788.401 metric tons. As before, the appellant manufactured wires from those steel rods even after April 24, 1962. Finance (No. No. 20 of 1962) imposed for the first time excise duty on the Iron and Steel Products; and by sub el. (S) of sub section (2) of section 16 of the said Act an amendment was made to the First Schedule of the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act) incorporating after item 26A item 26AA. The relevant portion of that entry reads thus: Iron or Steel Products. The following namely: (1) Bars, rods,coils,wires 5% ad valorem plus the ex joists girders,angels,channels cise duty for the time tees,flats beam,zeds,trough, being leviable on pig iron piling and all other rolled and Steel Ingots as the forged or extruded shapes and case may be. section not otherwise specified. Pig Iron and Steel Ingots were already subject to excise duty under Items Nos. 25 and 26 in the First Schedule of the Act. The rate of duty in the case of the former at the material time was Rs. 10 per metric tonne and that of the latter Rs. 39/35 per metric tonne. The newly imposed duty under Item 26AA came into force on April 24, 1962. The Collector of Central Excise, West Bengal, Calcutta by a Trade Notice, Central Excise No. 32 Iron and Steel Products 2/62 dated Calcutta the 16th May 1962 notified the procedure to be followed. By Notification No. 70/62, dated April 24, 1962 issued in exercise of the powers conferred by rule 8 (1 ) of the rules framed under the Act (to be hereinafter referred to as the rules), the Central Government exempted Iron and Steel Products falling under Item 26AA, if made from Pig Iron or Steel Ingots on which the appropriate amount of excise duty has already been paid, from so much of the duty of the excise leviable thereon as is equivalent to the duty leviable under Item 25 or 26 as the case may be. On the same day as per Notification No. 77 of 1962, the Central Government exempted Iron and Steel Products falling under sub items (2), (3), (4) and (5) of Item 26AA, if made from articles which have already paid the appropriate duty of excise under sub item (1 ) of the said Item, from so much of the duty of excise as is equivalent to the duty payable under the sub item (1). Finance (Act No. 2) of 1962 by section 15 amended the First Schedule of the Tariff Act by adding Item No. 63 (36) which deals with imported Iron and Steel Products. The second column of that entry mentions the various Iron and Steel Products included therein. The items included therein are the very items set out in Sup CI/69 14 490 Item 26AA of the First Schedule to the Act. The third column of that Item which specifies the levy reads thus: "The excise duty for the time being leviable on like articles if produced or manufactured in India, and where such duty is leviable at different rates the highest duty so leviable shall be in addition to the duty which would have been levied if this entry had not been inserted." On May 10, 1962, the Government issued a fresh Notification (No. 89 of 1962) under rule 8(1) of the rules in supersession of the Notification No. 77/62 dated April 24, 1962. By that Notification, the Government exempted with effect from April 24, 1962, Iron and Steel Products falling under Item 26AA if made from another article falling under the said Item and having already paid the appropriate amount of duty from so much of the duty of excise as is equivalent to the duty payable on the ' said article. On the same day namely May 10, 1962, the Government issued yet another Notification (Notification No. 90 of 1962) under rule 8 (1) under which it exempted Iron and Steel Products falling under Item 26AA specified in column 2 of the table annexed to the Notification if made from Pig Iron or Steel Ingots on which appropriate amount of excise duty has already been paid, from so much of the duty of excise leviable on such products as in excess of the duty corresponding entry in column 3 of the said table. (Wire) the product with which we are concerned in this case is also included in the table. That Notification contains a proviso which says: "Provided that if the products are made from pig iron and steel ingots on which appropriate amount of duty has not been paid the excise duty for the time being leviable on pig iron or steel ingots as the case may be shall be payable in addition to the duties specified in the appropriate entry in column 3 of the table. " On December 29, 1962, the Government issued yet another Notification under rule 8(1) amending the Notification No. 89 of 1962 issued on May 10, 1962. In the place of words "if made from another article falling under the said item and having already paid the appropriate amount of duty from so much of the duty of excise as is equivalent .to the duty payable on the said article. ", the following was substituted: "if made from another article falling under the said Iterm or Item No. 63(36) of the First Schedule to the Indian Tariff Act 1934 (32 of 1934) and having already paid the appropriate amount of excise or court 491 tervailing custom duty as the case may be from so much of the duty of excise as is equivalent to the excise or countervailing custom duty payable on the said article." By Indian Tariff (Amendment Act 1963) (Act No. 3/63) effective from the 25th January 1963, the Indian Tariff Act 1934 was amended and after section 2, the following section was inserted namely: 2(a) (1). Any article which is imported into India shall be liable to custom duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. Explanation: In this sub sec. the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the ' imported article belongs and where. such duty is leviable at different rates, the highest duty. (2) The customs duty referred to in sub section (i) shall be in addition to any duty imposed under this Act or under any other law for the time being in force. " On or after April 24, 1962, the appellants cleared from their warehouse wires produced from the aforementioned imported Steel Rods after obtaining the required permission from the excise authorities and after paying the duty assesse. On those wires, duty was assessed without taking into consideration "the excise duty for the time being leviable on Pig Iron and Steel Ingots as the case may be. " At that time the Central Excise authorities proceeded on the basis .that on the stock of wire in question only ad valorem duty had to be levied and not "excise duty for the time being leviable on Pig Iron or Steel Ingots as the case may be." On March 21, 1963, the Inspector of Central Excise attached to M/s. J.K. Steel Ltd., Rishara issued the following notice: "COLLECTORATE OF CENTRAL EXCISE WEST BENGAL No. 6 Range RIS. I. Date: 21 3 1963. Circle CGR. Notice of Demand for duty under rule 9(2) of C.E. Rules, 1944. 492 To M/s. J.K. Steel Ltd., Rishara, Hooghly. Take notice that on behalf of the Central Government, I hereby demand payment by you of the sum of Rs. 4,18,801/30 N.P. (Rupees four lacs eighteen thousand eight hundred one and paise thirty only) within ten days from the date hereof. Particulars of Demands Quantity Rate of duty Amount of duty involved Steel Ingot Duty on 6932.964 Rs.39.36 NP Rs.2,72,812/13 M.T.Hoops Per M.T. Steel Ingot Duty on 921.937 Rs.39.36 NP Rs. 36,278/22 M.T.Strips Per M.T. Steel Ingot Duty on 2788.00 Rs.39.36 NP Rs.1,09,710/95 Wire. Total Rs.4,18,801/30 No. VI/5A/I&S/JKS/CE/63/183, dated 21 3 1963. Sd/ Inspector I/C Central Excise M/s. 1. K. Steel Ltd., Rishara. " The appellants objected to the demand in question as per their letter of March 24, 1963. They contended that they had not contravened rule 9(2) of the rules nor was there any short levy. As per his letter of August 26, 1963, the Assistant Collector of Central Excise Calcutta 4th Division confined the demand to that made under serial No. 3 of the notice. The appellants paid ' the same under protest and thereafter took up the matter in appeal to the Collector of Central Excise who dismissed their appeal as per his order of March 19, 1964, with these observations: "The crucial point of this appeal is whether counter vailing import duty was paid by the appellants on the imported steel rods from which steel wires were manufactured. The appellants could not produce any documents in support of their argument that either import duty or countervailing duty equivalent to steel ingot rate was paid by them on the iron rods from which steel wires were drawn. Such duty is leviable on steel rods under tariff item No. 26AA. As no such duty on steel rods was paid by the appellants, countervailing 493 duty equivalent to steel ingot duty has, therefore, to be paid. " As against the order of the Collector, the appellants went up in revision to the Central Government. The Central Government allowed the revision petition to some extent. This is what the Central Government ordered: "The Government of ' India have carefully considered all the points raised by the petitioners but see no reason to interfere with the Collectors stated that the Steel Wires manufactured out of steel wire rods imported prior to 24 4 1962 on which no countervailing duty was paid, and cleared during the period, from 24 4 1962 to 10 8 1963 were subject to full duty as then leviable under Item 26AA (1) of Central Excise Tariff. However the demand for differential duty initially made on 2 3 1963 and subsequently amended vide the Asstt. Collector 's order, dated 26 8 1963 shall be restricted to the clearance effected during the 3 months period prior to the initial service of demand on 21 31963 that is to say, up to 21,12 1962 only as per the provisions of Rule 10 of Central Excise Rules, 1944 which was applicable to this case. The demand in respect of clearances effected prior to 21 12 1962 is hereby set aside and consequential refund shall be granted to the petitioners. Subject to the above modifications, the revision application is otherwise rejected. " Aggrieved by that order, the appellants have brought this appeal. The questions that arise for decision in this appeal are: (1) What is the true scope of entry No. 26AA of the First Schedule to the Act ? (2) In considering the scope of the said entry, can the Notifications issued by the Government on or after April 24, 1962 be taken into consideration? (3) Is the demand barred by limitation under rule 10 of the rules ? One other question had been raised in the grounds of appeal namely that the order of the Central Government is vitiated as it had contravened the principles of natural justice. That contention was not pressed at the hearing. In the context of this case that contention loses much of its significance If we accept the appellant 's contention as regards the scope of entry 26AA then ' the fact that the Government 's illegal is immaterial illegal is immaterial. If 494 on the other hand we accept the interpretation placed by the Revenue on that entry remand of the case to Central Government serves no purpose. I shall now proceed to consider the questions earlier formulated for decision. According to the assessee the true import of the clause in column 3 of entry 26AA is that goods mentioned in column 2 of that entry are dutiable at 5 per cent ad valorem plus the excise duty for the time being leviable under the Act on pig iron or steel ingot used in the production of those goods. Shri A.K. Sen, the learned Counsel for the assessee urged that the expression leviable in that clause means leviable under the Act; in other words dutiable under the Act; the words 'Pig Iron ' and 'Steel Ingots ' referred to therein is the Pig Iron or the Steel Ingot used in manufacture of the articles on which duty is sought to be levied; otherwise the word leviable becomes inappropriate. In other words according to him the second limb of the levy under that clause is attracted only when any pig iron or steel ingot dutiable under the Act is used in the manufacture of any article dutiable under sub cl. (1) of entry 26AA. As the steel bars used in manufacturing the 'wires ' with which we are concerned in tiffs case were not made out of steel ingot dutiable under the Act, as they were imported bars, that part of the levy is not attracted on those wires. The contention for the Revenue is that the expression "the excise duty for the time being leviable on Pig Iron or Steel Ingot as the case may be" sets out only a measure; the rate at which the duty is leviable; it has no reference to any particular material; it is merely a yardstick. The argument of Dr. Syed Muhammad, learned Counsel for the Revenue proceeded thus: The entry in question deals with two classes of products i.e., iron products and steel products. The assessing authority has first to decide whether a particular article is an iron product or steel product. If he comes to the conclusion that it is a steel product then he should assess the duty payable firstly by determining the ad valorem duty payable on it, thereafter he must find out its weight in metric tons and add to the ad valorem duty the amount payable as excise duty under entry 26 of the First Schedule on steel ingot of that weight. If the intention of the Parliament was as suggested by the learned Counsel for the Revenue then column 3 should have read thus: "5 per cent ad valorem plus excise duty at the rate for the time being leviable on pig iron or steel ingots as the case may be. " 495 It is difficult to interpret the words "for the time being leviable" as indicating a rate. The expression "leviable on pig iron and steel ingots as the case may be" in my opinion has reference to pig iron or steel ingots dutiable under the Act. In fiscal legislation the terms "rate" is a familiar term. In fact entry 5 of the First Schedule dealing with salt speaks of "rate fixed annually by a Central Act". Therefore it would have been the easiest tiring for the Parliament to convey its intention without ambiguity. At this stage it may also be noted that the clause in question refers to "the excise duty" and not excise duty in general. The definite article "the" has considerable significance. It refers to some particular excise duty. If the second part of the clause merely refers to a rate than the article "the" has no place in that context. It was urged on behalf of the Revenue that to accept the contention of the assessee and to hold that the second part of the. clause refers to the steel ingot used in the production of the "wires" is .to read into the clause the words "used in the production of the article in question. " It was said that such a construction is impermissible. Therefore we should not accede to that contention. I am not prepared to accept that reasoning. In fact in my opinion to accept the construction contended for on behalf of the Revenue, it would be necessary for us to include the words "at the rate" after the words "excise duty" and before the words "for the time being". No such difficulty arises if we accept the interpretation placed by the assessee on that clause. The expression "the excise duty for the time being leviable" by necessary implication refers to an. article dutiable under the Act. That must necessarily be the article which is one of the components ' of the article on which duly is sought to be levied. In the instant case that must be the steel ingot used in the production of the "wires" with which we are concerned in this case. As laid down by this. Court in C.A. Abraham vs I.T.O., Kottayam and Anr.(1) "In interpreting a fiscal statute the Court cannot proceed to make good deficiencies if there may be any; the court must interpret the statute as it stands and in case of doubt in a manner favourable to the tax payer. " This Court also laid down in Commissioner of Income Tax vs Karamchand Premchand Ltd., Ahmedabad(2) that if there is any ambiguity of language in a fiscal statute, benefit of that ambiguity must be given to the assessee. At this. stage I am tempted to recall to my mind the well known observations of Lord Russel of Killowen in Inland Revenue Commissioners vs Duke of Westminister(3) viz.: (1) ; S.C.607,612 (2) ; , 742. (3) [1936] A.C.1, 24. 496 "I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a Court 's view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. " About a century ago Lord Cairns in Partington vs The Attorney General(x) observed: "As I understand the principle of all fiscal legislation it is.tiffs: If the person sought to be taxed comes within the letter of the law he must be taxed however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax cannot bring the subject within the letter of the law, the subject is. free, however apparently within the spirit of the law the case might otherwise appear to be. " Unless I am satisfied that the only reasonable interpretation that can be placed on the clause in col. 3 of entry 26AA is that placed by the Revenue, it is not possible to justify the impugned levy. There is yet another difficulty in accepting the interpretation tried to be placed by the Revenue on entry 26AA. According to books on steel making pig iron is the intermediate form through which almost all iron must pass in the manufacture of steel (see "The Making, Shaping and Treating of Steel" edited by Harold E. Mcgannon at p. 384). Therefore every steel product is also. an iron product. If the second part of the clause in column 3 of entry 26AA refers to .a rate and not the duty leviable on the material used in the manufacture of the dutiable article under that entry then the question arises whether the rate in question is that at which duty is leviable on steel ingot or that leviable on pig iron. That part of the clause refers to two different materials dutiable at different rates. If on the other hand it refers. to the material from which the article on which duty is sought to be levied is made the proximate raw material and not the material from which that raw material is made, then there is no difficulty in finding out the amount. Dr. Syed Muhammad was not able to tell us how the assessing authorities classify articles into iron products and steel products. It is not his case that there is any recognised basis for doing so. It is also not his case that there is any prescribed procedure for deciding that question. His explanation that it is done on the basis of the practice prevailing in the trade is far from satisfactory. (1) , 122. 497 He was not able to tell us how we can ascertain that practice or what that practice is. If his contention is correct then the power of the assessing authorities to determine the nature of an article is an arbitrary power. It is undefined and unguided. The determination may vary from officer to officer. It is doubtful whether such a power is a valid power. That apart legislature is not likely to have conferred such an arbitrary power on the authorities. That difficulty will not arise if the duty under the second limb of the levy in column 3 of entry 26AA is determined on the basis of the actual material used. For the purpose of interpreting the clause in question, reference may also be made to entry 63(36) in the First Schedule to the Tariff Act. It may be remembered that entry as well as entry 26AA in the First Schedule of the Act were enacted simultaneously under Finance (No. Both these entries came into force on the same day namely on 24th April 1962 The Act and the Tariff Act are cognate legislations. In other words they are legislations which are pari materia. They form one code. They must be taken together as forming one system and as interpreting and enforcing each other. It is proper to assume from the surrounding circumstances, that these two entries were introduced in pursuance of a common purpose, that purpose being that the articles listed in entry 26AA whether produced out of indigenous Pig Iron or Steel Ingot or made out of imported Pig Iron or Steel Ingot must bear the same amount of duty. If the interpretation placed on entry 26AA by the learned Counsel for the assessee is accepted then it would be seen that entry by itself would not impose the duty contemplated by the second part of the clause in col. 3 of entry 26AA on imported Pig Iron or Steel Ingot. Evidently in order to equalise the duty on articles made out of indigenous material as well as imported material entry 63 (36) of the First Schedule to the Tariff Act was enacted. In other words that entry imposes countervailing duty and not additional duty. It was conceded by the learned Counsel for the Revenue that the duty levied under entry 63(36) of the First Schedule of the Tariff Act is only a countervailing duty. If that be so, that duty cannot be considered as an additional duty over and above the duty imposed under entry 26AA of the First Schedule of the Act. But it would be an additional duty if the interpretation of entry 26AA canvassed on behalf of the Revenue is accepted because according to the Revenue the rate prescribed in that entry is equally applicable to all articles mentioned therein whether manufactured from indigenous or imported material. If that be so the duty collected under entry 63(36) of the First Schedule under the Tariff Act will be an additional duty and not a countervailing duty. It is true that despite entry 26AA of the First Schedule to the Act and entry 63(36) of the First Schedule 498 of the Tariff Act if pig iron or steel ingot imported before April 24, 1962 is used in the manufacture of an article dutiable under entry 26AA only the ad valorem duty prescribed under that entry can be levied on that article. It may be that the legislature intended it to be so or there is a lacuna in the provision. In either case the effect is the same. I now come to the question whether in interpreting a taxing entry I can take any aid from the various steps taken by the Department in implementing that levy, I have earlier referred to a large number of Notifications issued under rule 8 (1 ) of the rules. The parties have also produced before us the instructions issued by the Department on May 16, 1962 in the matter of implementation of entry 26AA. I have now to see whether any aid can be taken from these instructions as well as the Notifications for finding out the true scope of entry 26AA. So far as the instructions issued by the Department are concerned there is hardly any doubt that the same are wholly irrelevant. In Craies on Statute Law Sixth Edn. at page 131 it is stated: "Explanatory notes regarding the working of an Act issued by a government department for the assistance of their officials are inadmissible for the purpose of construing the Act." . The same conclusion was arrived at by this Court in Commissioner Income ' Tax, Madras vs K. Srinivasan and K. Gopalan.(1) At pages 502 503 of that report it is observed: "He,(learned Counsel for the assessee), however, drew our attention to the directions contained in the Income tax Manual in force for a number of years and contended that the department itself placed on sub sections (3) and (4) of section 25 the same construction as was placed on them by the senior Judge in the High Court and that was the true construction of these two sub sections. This argument in our opinion, has no validity. The department changed its view subsequently and amended the manual. The interpretation placed by the department on these sub sections cannot be considered to be a proper guide in a matter like this when the construction of a statute is involved. " Therefore I have to exclude from consideration the instructions issued by the Government. This takes me to the Notifications issued by the Government under rule 8(1) of the rules. Under section 38 of the Act all rules (1) , 502 503. 499 made and notifications issued under the Act shall be made and issued by publication in the official Gazette. All such rules and notifications shall thereupon have effect as if enacted in the Act. The rules made have to be placed on the table of the Parliament. The Parliament can amend those rules. Section 3 8 is of no assistance. to us in the present case because the notifications referred to earlier are not those issued under the Act. They are notifications issued under rule 8 (1) of the rules. Therefore their relevance has to be considered without taking any assistance from section 38. In Halsbury 's Laws of England 3rd edn. 36 at page 401 it is observed: "Where a statute provides that subordinate legislation made under it is to have effect as if enacted in the statute, such legislation may be referred to for the purpose of construing a provision in the statute itself. Where a statute does not contain such a provision, and does not confer any power to modify the application of the statute by subordinate legislation, it is clear that subordinate legislation made under the. statute cannot alter or vary the meaning of the statute itself where it is unambiguous, and it is doubtful whether such legislation can be referred to for the purpose of construing an expression in the statute, even if the meaning of the expression is ambiguous. " No decision of this Court or of any of the High Courts in this country dealing with tiffs aspect has been brought to my notice. Even the Counsel for the parties were not definite about the stand that they should take. They were changing their position again. and again. On this question the opinion in English courts is not unanimous. That question came up for consideration as early as in 1871 in Ex Parte Wier In re Wier.(1). Sir G. Mellish L.J. delivering the judgment of the Court observed: "We do not think that any other section of the Act throws any material light upon the proper construction of this section,. and if the question had depended upon the Act alone we should have had great doubt what the proper construction was; but we are of opinion that, where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have been made by the Lord Chancellor under the authority of the Act, and if we find that in the rules any particular construction has been put on the Act, that it is our duty to adopt and follow that construction. " (1) Ch. Appeal Cases (Vol. 6) p. 879. 500 In Re: Normal Ex parte Board of Trade (1) Lord Esher,M.R.Observed: "It was urged that we ought to hold the Act to be retrospective by reason of the rules and forms which have been made under it, and which have a statutory force; and it is said that shew that that the trustee must go back in his accounts to matters which happened before the Act came into operation. But, when we look at the forms, we see that they are in express terms headed so as to relate to transactions taking place after the coming into operation of the Act; and, therefore, they supply no reason why we should depart from the ordinary rule that an Act is not retrospective. " From these observations, it is clear that Lord Esher did take into consideration the subordinate legislation in considering the principal Act. In Billings vs Reed,(2) Lord Greene stated that: "The fact that the object .of this Act was in substance what I have suggested can be seen from a consideration of the way in which the scheme has been framed pursuant to the Act itself and with the tacit approval of Parliament as provided in the Act. At any rate, we are entitled to look at the scheme for the purpose of seeing the kind of practical treatment of these questions which Parliament has authorised. " From this observation, it is seen that the learned Judge did look into the subordinate legislation in finding out the object of the Act. In Hale vs Bolton Leathers Ltd.,(8) Somervell L. J. observed: "The county court judge was referred, as we were, to various paragraphs in the regulations made under the Act of 1946. He took the view that these regulations could not affect the construction of the Act. The regulation making power is conferred by section 89, sub section 1, proviso (b), and is as follows: 'regulations may make such transitional 'or consequential provisions as appear to the Minister to be necessary or expedient, having regard to the repeal of the said enactments in relation to diseases and to injuries not caused by accident, including provision for modifying or winding up any scheme made thereunder. ' We agree that these regulations could not contradict the Act. (1) , 373:. (2) (3) , 505. 501 They might, we think, properly be referred to as working out in detail the provisions of the Act consistently with its terms. " In Howgate vs Ganall and .Anr.(1) Barry J. observed: "I cannot, of course, have recourse to these schemes as a guide to the correct interpretation of the Act under which they were made, but I am, I think, entitled to consider them for certain limited purposes. In Billings vs Reed(1) Lord Greene H.R., .said, in reference to a scheme made under the Act: 'The fact that the object of this Act was in substance what I have suggested can be seen from a consideration of the way in which the scheme has been formed pursuant to the Act itself and with the tacit approval of Parliament as provided in the Act. At any rate we are entitled to look at the scheme for the purpose of seeing the kind of practical treatment of these questions which Parliament has authorized. It is abundantly clear from the wording of the various schemes made under the Act that the Minister, with the tacit consent of Parliament has throughout considered that 'war injuries ' may be sustained outside the United Kingdom . . " The decision in Hales vs Bolton Leathers Ltd.(a) to which references has been made earlier was taken in appeal to the House of Lords. The judgment of the House of Lords is reported in [1951] A.C.p. 531. Dealing with the question whether subordinate legislation could be taken into consideration in interpreting the principal Act lord Simonds said: "I much doubt whether I am entitled. to look to the regulations for guidance on the eaning of the word in sub section (1), but I will say something on this point later. " Reverting back to that topic again (at p. 541 of the report) the learned Judge observed: "First, if I may look at the regulations made under section 55, sub section (4), to assist in the interpretation of the word, I agree with my noble and learned friend Normand, in thinking that they assist or at least are consistent with this interpretation." Lord Normand one of the other Judges who heard the appeal observed: "The National Insurance (Industrial Injuries) (Prescribed Diseases) Regulations, 1948, were made under (1) , 274. (2) (3) 505. 502 section 55, sub section 4, and though in my opinion they cannot control the construction of the Act, it is yet of some importance to consider whether they fit into the construction which I think the Act properly hears." Lord Oaksey in the same case was positive that the regulations could be looked into for certain limited purposes. This is what observed: "I agree with your Lordships in thinking that the regulations themselves (National Insurance) (industrial Injuries) (Prescribed Diseases) (Regulations 1948) cannot alter the meaning of the words of the statute, but they may, I think, be looked at as being an interpretation placed by the appropriate Government department on the words of the statute." Therein Lord MacDermott also took the assistance of the regulations while considering the statute. Lastly we come to the decision of the Chancery Division in London County Council vs Central Land Board(1). Danckwerts J. in that case referred to the regulations made under the Housing Act, 1936 while construing the provisions of the Act. From the above decisions, it is clear that several judges in England have referred to the subordinate legislation made under a statute for the purpose of interpreting that statute though for the limited purpose of know how the department which was entrusted with the task of implementing that statute had understood that statute. In the case of fiscal statutes, it may not be inappropriate to take into consideration the exemptions granted in interpreting the nature and the scope of the impost. In the matter of fiscal legislation the initiative is in the hands of the executive. Under article 112(1) of our Constitution, the President shall in respect of every financial year. cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure for that year. Under sub article (3) of article 113 no demand for a grant shall be made except on the recommendation of the President. In the matter of taxation very large powers are left in the hands of the executive. Generally speaking the question of exemption is left to the discretion of the Government. It ought to be so because the exercise of that power depends on various circumstances some of which cannot be anticipated in advance. But yet the levy and exemptions are parts of the same scheme of taxation. The two together carry into effect the purpose of the legislation. For finding out the true scheme of a taxing measure we have to take into consideration not merely the levy but also (1) 503 the exemptions granted. This Court in Kailash Nath and another vs State of U.P. and ors. (1) held that the exemption granted in pursuance of a notification issued under the. U.P. Sales Tax Act must be considered as having been contained in the parent Act itself. This is what this Court stated therein: "This notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption is as if it is contained in the parent Act itself. " I do not think it is necessary for me to decide in this case the general question whether subordinate legislation can be used for interpreting a provision in the parent Act. I am not unaware of the danger in accepting that it could be so done. But for the present purpose, it is sufficient to hold that for finding out the scope of a particular levy, notifications issued by the executive Government providing for exemption from that levy can be looked into as they disclose the overall scheme. Even according to the learned Counsel for the Revenue the notifications referred to earlier were issued with a view to avoid double taxation. If that is so, the exemption granted under those notifications provide a clue as to the scope of the levy made under Item 26AA. We have earlier seen that on the very day, the levy came into force the Government had issued two notifications i.e., Notifications Nos. 70 and 77 of 1962. Under Notification No. 70 it exempted Iron and Steel Products falling under item 26AA if made from Pig Iron or Steel Ingots on which the appropriate amount of duty has already been paid, from so much duty of the excise leviable thereon as is equivalent to the duty leviable under Item 25 or as the case may be under Item 26. Under Notification. No. 77, it exempted Iron and Steel Products falling under subitems Nos. 2, 3, 4 and 5 of Item 26AA, if made from articles which have already paid appropriate duty of excise under subitem (1) of the said item from so much of the duty of excise as is equivalent to the duty payable under the said sub item (1). These Notifications clearly indicate that under Item 26AA, there was no intention to levy double excise duty on the same material. The intention appears to be that if one article is made out of another article both of which are subject to excise duty, the excise duty paid on the raw material should be deducted in putting the excise duty payable on the finished product. In addition these Notifications clearly show that the Pig Iron and Steel Ingot mentioned in el. 3 of entry 26AA are those used in the manufacture of the article on which duty is sought to be levied under that entry. (1) A.I.R. 1957 S.C.790. 504 In this connection we may also refer to Notification No. 89/62. Notification No. 77/62 referred merely to Iron and Steel Pro,ducts falling under sub items 2, 3, 4 and 5 of item 26AA manufactured out of articles falling under sub item (1) thereof. That Notification by itself was not all comprehensive. It did not take in other articles made out of Pig Iron or Steel Ingot. It is that reason Notification No. 89/62 was issued on May 10, 1962 under which exemption was given with effect from April 24, 1962 to all Iron and Steel Products falling under Item 26AA if made from another article falling under the said item and having already paid appropriate amount of duty from so much of the duty of excise as is equivalent to the duty payable on the said article. Notifications Nos. 70, 77 and 89 exempted payment of excise duty on an article to the extent duty had been paid on the raw material used in the manufacture of the article dutiable under entry 26AA. All these Notifications proceeded on the basis that the second limb of the levy in column 3 of entry 26AA refers to the duty payable on the Pig Iron or Steel Ingot, as the case may be used in the manufacture of an article dutiable under 26AA. But the above Notifications do not deal with the countervailhag duty levied under entry 63(36) of the First Schedule to the Tariff Act. This was clearly an omission. To make good that omission the Government amended Notification No. 89/62 by its order, dated December 29, 1962. The amended Notification in addition to the exemption already given under Notification No. 89/62 also exempted from the payment of duty any article falling Within any of the sub items in item 26AA if made from an article on which countervailing duty has been paid under item 63(36) of the First Schedule to the Tariff Act from so much ,of the duty of excise as is equivalent to the countervailing custom .duty payable on the said article. This Notification clearly shows that the countervailing duty in question was levied on the basis that the excise duty contemplated by entry 26AA will not apply to articles made out of imported Pig Iron or Steel Ingot. Further if the legislature intended the duty under entry 63(36) to be an additional duty, the exemption granted would nullify the legislative mandate. To summarise the effect of the Finance (No. 2) Act of 1962 and the various Notifications issued for the purpose of implementing the scheme under that Act is that excise duty is leviable at the rate mentioned in column 3 of Item 26AA on pig iron or steel ingot used in the production of the article on which duty under entry 26AA is sought to be levied but to the extent .any excise duty or countervailing custom duty had been paid on any of the material used in the manufacture of any of that article, the ,same is exempt. From this scheme it is clear that when Item 26AA 505 speaks of , 'the excise duty for the time being leviable on Pig Iron or Steel Ingots: as 'the case may be" it refers to the excise duty payable on ' the Pig Iron or Steel Ingots used in the production of the article dutiable under that item. From the above discussion, it follows that the wires which are the subject matter of the levy impugned in this case are not liable to pay the duty in dispute in this case. At one Stage it was contended on behalf of the assessee that the levy under sub item (1) of Item 26AA comes into effect only when an article is made directly from out of Pig Iron or Steel Ingot as the case may be and not otherwise. It is not necessary to examine the correctness of this contention because at no stage the assessee had challenged his liability to pay ad valorem duty .under Item 26AA. He paid the same without objection nor had he claimed refund of the same. I shall now take up the question of limitation. The written demand made on March 21, 1963 purports to have been made under rule 9 (2) of the rules. Therein the assessing authority demanded steel ingot duty which according to it the assessee had failed to pay. Quite clearly rule 9(2) is inapplicable to the facts of the case. Admittedly the assessee had cleared the goods from the warehouse after paying the duty demanded and after obtaining the permission of the concerned authority. Hence there is no question of any. evasion. Despite the fact that the assessee challenged the validity of the demand made on him both the Assistant Collector as well as the Collector ignored that contention; but when the matter was taken up to the Government it treated the demand in question as a demand under rule 10. The Government confined the demand to clearances effected after December 21, 1962. The demand so modified is in conformity with rule 10. But the contention of the assessee is that the demand having been made under rule 9 (2) and there being no indication in that demand that it was made under rule 10, the Revenue cannot now change its position and justify the demand under rule 10; at any rate by the time the Government amended the demand, the duty claimed became barred even under rule 10. We are unable to accept this contention as correct. There is no dispute that the officer who made the demand was competent to make demands both under rule 9(2) as well as under rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercise under a different power does not vitiate the exercise of the power in question. This is a well settled proposition of law. In this connection reference may usefully be made to the decisions of this Court in B. Balakotaiah vs The Union of India and Ors. (1) and (1) ; 3sup. CI/69 15 506 Afzal UIlah vs State of U.p.(1). Further a common form is prescribed for issuing notices both under rule 9(2) and rule 10. The incorrect statements in the written demand could not have prejudiced the assessee. From his reply to the demand, it is clear that he knew as to the nature of the demand. Therefore I find ass suesseeance in the plea of Limitation advanced on behalf of the For the reasons mentioned above, this appeal is the Revenue is directed to refund the excess duty paid under protest. ORDER In accordance with the opinion of the appeal is dismissed with costs.

A hire purchase agreement was entered into between the appellants and respondent No. 1 Under that agreement a motor transport truck was made available to respondent No. 1 for doing transport business. The agreement contained an arbitration clause for settlement of disputes When disputes arose reference was made to an arbitrator. Respondent No. 3 a praetising lawyer was named as the arbitrator. During the pendency of the arbitration proceedings respondents Nos. 1 and 2 filed a civil suit in which they claimed a declaration that the hire purchase agreement was brought about by fraud and was not binding on them on various grounds. The suit was registered and the court ordered summons to be issued to the two appellants. A notice was also issued by respondent No. 1 to the appellants and the arbitrator with a copy of the plaint. When the arbitrator made an award after recording the evidence of the appellants respondents Nos. 1 and 2 filed an application under section 3 of the Contempt of Courts Act on the allegation on that the appellants and respondent No. 3 had committed contempt of court in proceeding with the arbitration reference in spite of the notice under section 35 of the Arbitration Act being given and in spite of the knowledge of the suit which was filed by respondents 1 and 2. The application was contested by the appellants as well as the arbitrator. The appellants contended that in obeying the orders of the arbitrator to produce evidence they did not commit any contempt. Respondent No. 3 denied that he conducted the arbitration proceedings in order to defeat the object of the suit. The High Court found the appellants and respondent No. 3 guilty of contempt of court on the view that their conduct had a tendency to bring into contempt the proceedings before the Civil Court. In appeal to this Court by certificate, HELD: The High Court was in error in holding that in the circumstances of the case the appellants and respondent No. 3 were guilty of contempt of court. Section 35 of the Arbitration Act does not expressly prohibit the arbitrator from continuing the hearing of the reference. Its only effect is that "all further proceedings in a pending reference shall, unless a stay of proceedings is granted under section 34, be invalid". For this consequence to follow, however. two important and distinct conditions must be satisfied, namely, (1) that such legal proceedings must be upon the whole and not merely part of the subject matter of the reference and (2) that a notice of such legal proceeding must be given to the arbitrator. Even on the assumption that these conditions were satisfied the only effect is that the further proceedings before the arbitrator after the receipt of the notice are rendered invalid and there is no prohibition under section 35 requiring the arbitrator not to carry on the arbitration proceedings after the receipt of the notice. [672 G 673 B] 669 It is well established that an authority holding an enquiry in good faith in exercise of the powers vested in it by a statute is not guilty of contempt of court, merely because a parallel enquiry is imminent or pending before a court. To constitute the offence of contempt of court there must be involved some 'act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority ' or 'something calculated to obstruct or interfere with the due course of justice or the lawful process of the court '. [673 C] Reg. vs Gray , Arthur Reginald Perera vs The King, , Tukaram Gaokar vs S.N. Shukla, ; and Rizwan ul Hasan vs State of Uttar Pradesh, ; , 588, applied. It followed therefore that even if the action of the appellants and respondent No. 1 in the present case was assumed to be improper it would not justify the finding that they were guilty of contempt of court when their action was in no way calculated to obstruct the course of justice or to prejudice the trial of the civil suit.

Civil Appeal No. 2222 of 1979. Appeal by Special Leave from Judgment and order dated 4 7 1979 of the Kerala High Court in CMP (Transfer) No. 5069/79. F. section Nariman and K. R. Nambiar for the Appellants. 251 V. M. Tarkunde, P. P. John and N. Sudhakaran for RR 18 and 20. The Judgment of the Court was delivered by KRISHNA IYER, J. The Malankara Sabha, on the Kerala Coast, is an ancient Church with a legendary past, and has a phenomenal following of a million and a half Orthodox Syrian Christians with over a thousand parish churches to nourish the spiritual life of the flock. Schismatic pathology which ordinarily afflicts secular institutions struck this ecclesiastical organisation resulting, inter alia in bitter litigative battles of several years standing. Some 250 suits, manifesting this litigious syndrome, are stated to be pending in the several courts of Kerala. The members of this church are not new to forensic struggles and have, on earlier occasions, fought right up to the Supreme Court. The prolongation of such plurality of court cases in a community at once influential, important and numerous, has many deleterious social consequences and it was wise of the High Court and the Government of Kerala to have thought in terms of selecting eight of the most significant suits out of the spate of cases and constituting an 'Additional District Court ' specially for disposal of these socially sensitive cases. Thanks to this imaginative measure the eight suits which were made over to the specially appointed District Judge made headway steadily forwards. An Additional District Judge, by name, Shri N. Vishwanath Iyer was first put in charge of these suits and he examined several witnesses. When he was transferred from Ernakulam, which is the venue of the District Court, another judicial officer by name, Shri section Ananthasubramanian was posted in his place. The latter kept up the progress of the case and actually finished recording the entire evidence. Hardly had the arguments commenced when an application for transfer was made to the High Court under Section 24(1) of the Civil Procedure Code praying for making over the suits to some other court for disposal. Certain aspersions suggestive of bias were made therein, but the High Court (Mr. Justice Bhaskaran) eventually and rightly dismissed the petition. A petition to appeal by special leave was filed to this court but, after making some submissions, counsel withdrew that petition when we indicated our reaction. Another petition had been filed under Section 24(1)(b) of the Code for withdrawal of the suits to the file of the High Court, which was heard by another Judge of the High Court (Mr. Justice Khalid). The learned Judge dismissed that petition, and against that order the present petition for special leave to appeal has been moved. 252 We are deeply disturbed that an important community in the State of Kerala should be locked in litigation for long years and if amity can be restored by an early end of the crop of cases which drive a wedge between sections of the same community it is 'a consummation devoutly to be wished '. But all that courts can do is to adjudicate cases with the utmost speed and that has apparently been attempted successfully in the present instance. The short point is whether, at this stage and in these circumstances, the eight suits concerned should be called up to the High Court and disposed of. The learned Judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court, nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed Judge and so the High Court felt that it would be "proper for the court that recorded the evidence to hear the arguments also". We are not inclined to fault the learned Judge in the view he has adopted. But there are many buts to any general proposition. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division Bench of that court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Article 136 of the Constitution. A single appeal, as of right, would be taken away, was his apprehension. Shri Nariman, appearing for the petitioners, having prudently though belatedly withdrawn the Special Leave Petition which made reference to bias, focussed on the advantage both sides would derive by an early determination of the litigation at the High Court level. He also submitted that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Supreme Court, as of right, both under Article 133 and Section 110 C.P.C., was a certainty. He further emphasised that Section 24(1) (b) would become a dead letter if Shri Tarkunde 's objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted. We agree with the learned Judge of the High Court that some of the grounds put forward for withdrawl of the suits to the High 253 Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper psychic sensitivity is more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of these quasi public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of Justice in the State. It is indubitable that after the decision by the District Court appeals will inevitably be carried to the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from the records, that the case involves questions of public moment and are likely to spiral up to the Supreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of law bearing on transfer of cases. We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws ' delays are important to social justice. We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, pro 254 ceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage post haste, since expeditious termination is the driving force behind this order for transfer. A last thought before we part with this case. When sacerdotal institutions are litigious fights double disaster threatens society because of the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation. We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now locked in long years of suits and appeals, sincerely hunger for. We allow the appeal as indicated above. P.B.R. Appeal allowed.

Section 91 of the Code of Criminal Procedure, 1973 confers power on the court or an officer in charge of a police station to issue a summons or written order to any person in whose possession or power a document the production of which the court or the officer considers necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under D. the Code calling upon him to produce the document. Section 93 of the Code contemplates three situations in which the court may issue a search warrant: (a) where the Court has reason to believe that a person to whom the summons or order under section 91 has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition or (b) where such document or thing is not known to the court to be in the possession of any person or (c) where the court considers that the purposes of any enquiry, trial or other proceeding under this code will not be served by a general search or inspection, then it may issue a search warrant; and the person to whom such warrant is directed may search or inspect in accordance therewith and the provisions contained in the code. The complainant (respondent No. 1 ) made an application before a magistrate for the issue of a warrant for the search and seizure of certain books and documents of a Sabha of which the accused were office bearers. After the seizure of the books and documents, on the application of one of the accused persons, the magistrate directed their return to the persons from whom they were recovered. In the respondent revision petition the High Court held that the provisions contained in section 93(1) of the Cr. P.C. were not hit by article 20(3) of the Constitution. Dismissing the appeal, ^ HELD: The High Court was right in sustaining the general search warrant under section 93(1)(c) of the Code. [682 H] 1. The immunity against self incrimination extends to any incriminating evidence which the accused may be compelled to give but does not extend to cover a situation where evidence which may have tendency to incrinate 674 the accused is being collected without compelling him to be a party to the collection of the evidence. The search of the premises occupied by the accused, without compelling the accused to be party to such search, would not be violative of article 20(3) of the Constitution. [682C] 2. A search and seizure pursuant to a search warrant under section 93 ( 1 ) (c) 8 of the Code would not have the remotest tendency to compel an accused to incriminate himself. He is not required to participate in the search. He may remain a passive spectator or may even be absent. Merely because the accused is occupying the premises to be searched it cannot be said that by such search and consequent seizure of documents, including the document which may contain statements attributable to the personal Knowledge of the accused and which may have a tendency to incriminate him, would violate the constitutional guarantee against self incrimination because he is not compelled to do anything. A passive submission to search cannot be styled as compulsion on the accused to submit to search. If anything is recovered during the search which may provide incriminating evidence against the accused it cannot be called a compelled testimony. [681 G H] 3. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. Therefore, power of the court under this clause cannot be cut down by importing some of the requirements of cl. (b) of the section 93(1). [682 F G] In the instant case although the order of the magistrate was laconic certain important aspects could not be over looked. The objects of the Sabha were of a general charitable nature. An earlier search warrant was quashed by the High Court. When the complainant made more serious allegation a search warrant was issued to conduct a search of the institution. The office premises, the books and other documents of the Sabha could not be said to be in possession of any individual accused. They were in the possession of the institution. A search of such a public place under the authority of a general search warrant can easily be sustained under section 93(1)(c). Viewed this way there was no illegality in the Magistrate 's order. Shyamlal Mohanlal vs State of Gujarat, , M. P. Sharma & others vs Satish Chandra District Magistrate, Delhi & ors., [19541 SCR 1077, The State of Bombay vs Kathi Kalu Gohad & Ors. ; explained.

Civil Appeal No. 2603 2605 of 1987. From the Judgment and order dated 8.12.1986 of the Rajasthan High Court in D.B. Special Appeal No. 889, 975 and 1135 of 1986. G.L. Sanghi and Mrs. Rani Chhabra for the Appellants. Shanti Bhushan and S.K. Jain for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. Special Leave granted. Appeals are disposed of by this order. The three appellants had been granted permits on a route from Bhadra to Hissar via Adampur. This route lay both in the State of Rajasthan and in the State of Haryana and was thus an inter State route. When the permits were about to expire the petitioners filed applications for their renewal in accordance with the provisions of section 58 of the Motor Vehicles Act (hereinafter called 'the Act '). At the same time, the Rajasthan State Road Transport Corporation (hereinafter referred to as 'the Corporation ') also moved applications before the Regional Transport Authority, Bikaner, for the grant of fresh permits to it on the same route. The applications for renewal of permits made by the petitioners as well as the applications for the grant of permits by the Corporation were heard together by the Re gional Transport Authority, Bikaner (R.T.A.) on several dates, the 643 last of which was the 6th of November, 1981. On that date, orders were reserved by the R.T.A. The R.T.A., however, passed its order only on 27th November, 1982, about a year after the date of the hearing. It rejected the renewal applications of the petitioners and granted permits to the Corporation in respect of the above route. Aggrieved by the orders of the R.T.A., the petitioners filed appeals before the State Transport Appellate Tribunal (S.T.A.T.) The STAT dismissed the appeals preferred by the petitioners and confirmed the order of the R.T.A. The petitioners filed writ petitions in the High Court of Rajasthan, which were dismissed by a Single Judge on 2 1st July, 1986. Further appeals preferred by the petitioners and certain other operators were dismissed by a Division Bench of the High Court of Rajasthan by its judgment and order dated 8th December, 1986. These Special Leave Petitions have been preferred against the order of the Division Bench dated 8th December, 1986. We have come to the conclusion that the order of the R.T.A. (and consequently the orders of the STAT and the High Court) should be set aside and the matter should be remitted back to the R.T.A. for fresh consideration on the short ground that the petitioners have not had a fair opportunity of putting forward and being heard on their contentions relevant to the issue before the R.T.A. The principal issue that had to be considered by the R.T.A. was whether the claims of the Corporation for the grant of a permit had precedence over the claims of the petitioners for renewal. This issue had to be decided in the context of two statutory provisions. The first is section 47( 1H) of the Act which reads as follows: Notwithstanding anything contained in this section, an application for a stage carriage permit from a State transport undertaking for operating in any inter State route shall be given preference over all other applications: Provided that the authority shall not grant a permit under this sub section unless it is satisfied that the State transport undertaking would be able to operate in the inter State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route as is referred to in subsection (3) of section 68D where the undertaking operates the service. 644 Explanation For the purposes of this sub section, "inter State route" means any route lying contiguously in two or more States. The second relevant provision is the third proviso inserted in section 58(2) of the Act by an amendment applicable to the State of Rajasthan. This sub section, in so far it is material for our present purposes, reads: . "(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: Provided further that, other conditions being equal, an application for stage carriage permit by a State transport undertaking as defined in section 68(A), shall be given preference over applications from individual owners and cooperative societies. " The arguments before the R.T.A. primarily ranged round the question whether the terms of the proviso to section 47(1H) were fulfilled in the present case or not. The petitioners (as well as operators on several other routes whose requests for renewal had also been countered by applications for permits by the Corporation) con tended that the Corporation was not in a position to operate in the inter State routes in question without detriment to its responsibility for providing efficient and adequate road transport service in routes which had already been nationalized under Chapter IV A of the Act. The R.T.A. has applied its mind to this contention in what may be described as a piecemeal manner. This was because applications made by several private operators and the corporation in regard to various routes came up for consideration by it in separate meetings held at different places on different occasions. In fact it is this which also explains the delay in the passing of its order by the R.T.A. in the present case. In course of the hearing before us, we called upon the respondents to produce the original records. These show that the mat ter relating to renewal of permits of six operators (including the preG sent petitioners) was heard on 6.11.1981 and orders reserved. On 30 .11.8 1, the counsel for the Corporation made a request to the R.T.A. that certain other matters pertaining to renewals of permits in the Bikaner region were coming up for consideration on 16.12.81 and that, therefore, the orders in the instant cases may be deferred till after the other matters were also heard by the R.T.A. This request of the counsel for the Corporation was accepted by the R.T.A. The other 645 matters referred to could not be heard on 16.12.1981 but got adjourned from time to time. The order sheet of the R.T.A. in the present case shows that the decision in the present cases was deferred on three subsequent occasions upto 22.03.1982. The records do not indicate what happened thereafter but it appears that the decision was postponed on subsequent occasions also for the same reason and ultimately announced by the R.T.A. On the 27th of November, 1982, after the connected matters had been heard. This is clear from the order of the R.T.A. which, in arriving at its final decision, has followed the orders passed by it on 15.9.82 & 24.11.82 in certain other matters and the orders passed by the R.T.A., Jaipur on 7.4.82 & 10.9.82 in relation to two routes falling within its jurisdiction. The short grievance of the petitioners was that, by adopting the above procedure, the R.T.A. has imported into its final decision and order various transactions, facts, events and arguments of which they had no notice and which they had not been given a proper opportunity to rebut. The STAT dealt with the argument by simply observing that "for considering the obtainable facts a fresh opportunity to appellants in my opinion was not very much required, as there would not be any end to it." The learned Single Judge in the High Court recognised that: "If such long spell time has lapsed and such new material has come into existence the proper course for the RTA should have been to get the case listed back for comments of both the parties but did not think that "the case warranted any interference on this aspect. " The Division Bench observed: "It was urged on behalf of the appellants that the Regional Transport Authority took into account events after hearing and closing the cases without giving any opportunity to the appellants to rebut that material. It was also urged that out of 83 documents filed by the appellants before the Regional Transport Authority in rebuttal of this material, only 2 were accepted, while remaining 81 were rejected. There is no merit in this contention. The mere fact that the appellants filed these documents out of which two were taken into account shows that they had the knowledge of the subsequent material being used for the purpose of deciding these cases and it is for this reason that they filed these documents out of which two were also taken into account. Moreover, the subsequent events relate only to matters of record pertaining to operation of the existing routes by the 646 State Transport Undertaking. There is thus no prejudice to A the appellants. This argument is, therefore devoid of any merit. In our opinion the approach of the STAT as well as the High Court was erroneous. There is no doubt that the R.T.A. in deciding the present case has been influenced not merely by the discussions which took place during the hearing of the applications of these petitioners and the Corporation but also the facts circumstances, and arguments that surfaced at the meetings held by it in relation to various other permits in the State. It is true that the point that arose for consideration viz. whether the Corporation had placed sufficient material on record to satisfy the R.T.A. concerned that the grant of a further permit or further permits to it would not prejudicially affect the nationalised services already run by it was, in a sense, a point common to all the meetings. Nevertheless, the grant of a permit in each case is a separate issue to be decided on the facts and circumstances placed on record in relation to that case. In support of their claims for permits, the petitioners had placed some material before the R.T.A. and so also the Corporation. If, in reaching its decision, the R.T.A. desires to take into account circumstances and facts placed by other petitioners or by the Corporation at other meetings, the petitioners should atleast have had an opportunity of knowing what that material was. This could have been done either by allowing the petitioners to participate at the other meetings or by giving the substance of that material to the petitioners, and giving them an opportunity of rebutting it before passing the final order. In this context it is important to remember that the Corporation was a party at all the meetings and was aware of all the materials that had been placed on record by other operators as well as by themselves thereat. On the contrary, the petitioners were handicapped in that they had no knowledge of the material placed at the other meetings. In our opinion, the requirements of natural justice were flouted by the failure of the RTA to apprise the petitioners, atleast broadly, of what had transpired at the other meetings. The High Court has observed that the petitioners had not been prejudiced as is seen from the fact that they had placed several documents on record in rebuttal of the Corporation 's case. It may be, as pointed out by the High Court, that the petitioners were vaguely aware of the nature of the general contentions urged as well as the evidence placed by the Corporation and also tried to put in some documents to controvert the material placed on record by the Corporation but they 647 had no direct knowledge of such material. Further, the petitioners ' grievance is that out of 83 documents placed by the petitioners only two were considered. We are not able to appreciate the High Court 's answer to this contention in the extract we have quoted above. We could have understood it if the other 81 documents which the petitioners relied upon had been found to be irrelevant. The R.T.A. has not discussed this evidence. Nor does the STAT appear to have considered the material or given the petitioners an opportunity, atleast at the appellate stage to attempt to substantiate its contentions by reference to these documents. In the Special Leave Petitions before us, the petitioners have catalogued several circumstances to substantiate a contention that the Corporation was not in a position to undertake the plying of buses on the routes in question without prejudice to the efficiency of the nationalised services already being run by it. We express no opinion on the correctness of these averments or the effect they can have on the satisfaction to be reached by the Regional Transport Authority but it appears manifest that the impugned order rejecting the renewal applications of the petitioners has been passed without there being reasonable opportunity given to the petitioners to counter the case put forward by the Corporation. On this short ground that the procedural requirements of natural justice have not been complied with, we think, the impugned order should be set aside and the R.T.A. directed to pass a fresh order after giving the opportunity to the Petitioners to put forward their contentions. Shri Shanti Bhushan, learned counsel for the Corporation, raised two contentions. He urged, firstly, that the present case was governed by section 58(2) and not by section 47( 1H) and that the Corporation was rightly granted precedence over the private operators. We are unable to accept this contention for two reasons. In the first place the grant of a permit for an inter State route is governed by the special provision contained in section 47( lH) and not by section 58 which is a general provision. Secondly, even under Section 58, the Corporation is not entitled to a permit automatically by reason of the fact that it is a State Road Transport Undertaking. It is entitled to a priority over private operators only on "other things being equal". In other words, even if section 58 is to apply, the RTA has to apply its mind to the relative merits of the private operators on the one hand and the Corporation on the other and it is only if both of them stand on the same footing that the Corporation would be entitled to a preference. This would necessarily involve a hearing by the RTA of the merits of both the contending parties. 648 The second contention of counsel is based on an interpretation of A section 47(1 H). The principle and ratio of this provision has been discussed and approved by this Court in Sher Singh vs Union of India, A.I.R. 1984 SC 209. This provision no doubt enables the Corporation to have a preference over private operators and individuals but this is subject to a condition precedent that it should satisfy the Authority that it E3 would be able to operate the inter State route for which permit is sought without detriment to the efficiency and adequacy of the nationalised services it is already running in the State. Shri Shanti Bhushan would contend that this is a matter on which the Regional Transport Authority has to reach a subjective satisfaction in the light of such material as it may be able to gather and that it is not necessary that it should be arrived at after giving an opportunity to all the persons appearing before the Authority. We cannot accept this interpretation. Like analogous provisions contained in several statutes which require or permit certain action to be taken on the satisfaction of a particular specified authority, the provision in section 47( lH) also requires the R.T.A. to arrive at its satisfaction not subjectively but on an objective consideration of the various facts and circumstances placed before it. It will at once be obvious that such a satisfaction cannot be reached by the Authority without hearing the various operators. The matter comes up before the Authority on a contest between an application for a permit or a renewal application of a private operator and an application for permit by the Corporation. Naturally, the Corporation will place before the Authority some material to satisfy the Tribunal that the condition mentioned in the proviso to section 47(1H) is satisfied. The R.T.A. On its own can have no method of assessing the merits of this plea. It is only the private operators, who are seeking permits for themselves that may be in a position to place material which would show that the Corporation does not have the capacity to take up this additional responsibility of running buses on the inter State route for which it seeks a permit. It is clearly the duty of the R.T.A. to consider the evidence placed by both the parties, allow each party an opportunity to rebut the material placed by the other and arrive at its satisfaction one way or the other. The satisfaction contemplated under section 47( lH) is a satisfaction to be arrived at on the basis of such a quasi judicial enquiry conducted by the R.T.A. It is, therefore, not possible to accept the contention that the petitioners were not required to be heard before the R.T.A. reached its conclusion in favour of the Corporation. For the reasons discussed above, we hold that the petitioners ' applications for renewal of permits as well as the Corporation 's appli 649 cation for fresh permits on the inter State route Bhadra to Hissar via Adampur require to be considered afresh. We, therefore, set aside the order of Regional Transport Authority dated 27.11.1982, the order of the State Transport Appellate Tribunal dated 20.1. ]983 as well as the order of the Single Judge of the High Court dated 21st July, 1986 and the order of the Division Bench of the High Court dated 8.12.1986. The matter will stand remanded to the file of the R.T.A., Bikaner, for being disposed of afresh in the light of the above observations. The appeals are allowed but in the circumstances we make no order as to costs. S.L. Appeals allowed.

% The appellants filed applications for renewal of their stage carriage permits on a route in Rajasthan, under section 58 of the Motor Vehicles Act. At the same time, the Rajasthan State Road Corporation(Corporation) moved applications for the grant of fresh permits to it for the same route. Both the applications for renewal of permits and the applications for fresh permits, were heard together by the Regional Transport Authority (R.T.A.) which reserved its orders thereon. The R.T.A. passed orders in the matters after a year of the hearing, rejecting the renewal applications of the appellants and granting fresh permits to the Corporation. The R.T.A. had, during the intervening period of one year, held several other proceedings and meetings in connected matters of which no notice and no opportunity had been given to the appellants whereas the Corporation was a party to all those meetings and discussions before the R.T.A. Against the orders of the R.T.A., the appellants filed appeals before the State Transport Appellate Tribunal (S.T.A.T.). The S.T.A.T. dismissed the appeals. The appellants moved the High Court by writ petitions against the order of the S.T.A.T. The High Court (Single Judge) dismissed the writ petitions. Further appeals by the appellants to the Division Bench of the High Court were also dismissed. The appellants moved this Court by special leave. Allowing the appeals, the Court, ^ HELD: The principal issue to be decided by the R.T.A. was whether the claims of the Corporation for fresh permits had precedence over the claims of the appellants for the renewal of their permits. [643E] 642 The appellants have not had an opportunity of putting forward their contentions and of being heard before the R.T.A. in the various proceedings meetings held by the R.T.A. during the period of one year following the reservation of orders by it on the applications of the Appellants and the Corporation. The principles of natural justice were flouted by the R.T.A. by its failure to apprise the appellants of what had transpired at the meetings/discussions held in their absence. [646D F] The appellants ' applications and the applications of the Corporation require to be considered and disposed of afresh by the R.T.A. in the light of the observations made by the Court. [648H, 649A] Sher Singh vs Union of India, AIR 1984 SC 200, referred to.

No. 205 of 1971. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus. 518 V. Mayakrishnan, for the petitioner. section P. Mitra, G. section Chatterjee for Sukumar Basu, for the respondent. The impugned order states that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order as provided by section 3(1) of the Act. According to the affidavit in reply of the District Magistrate, he reported under section 3 (4) of the Act to the State Government On March 3, 1971 regarding the fact of his having passed the order of detention together with the grounds of detention and all other. particulars having a bearing on the name. It is further stated that the. petitioner was arrested on March 5, 1971 and was served on the same day with the order of detention together with the, grounds for passing the order of detention. The petitioner was also informed that he is entitled to make a representation to the State Government against the order of detention and that such representation is to be addressed to the Assistant Secretary Home (Special) DEpartment, Government of West Bengal and forwarded through the Superintendent of Jail. He was further informed that his case will be placed under section 10 of the Act before, the Advisory Board within 30 days from the date of the order of detention. He was also informed that under section 11 of the Act, the; Advisory Board shall, if so desired by him, hear him in person and that the petitioner must intimate the said desire to be heard in the representations that he may make to the State Government. The State Government considered the report of the District Magistrate together with other materials placed before it and approved, on March 11, 1971 as required by section 3 (4) of the Act, the order of detention passed by the District Magistrate. On the same day, as required,by section 3(5) the State Government sent the necessary report to the Central Government. The State Government on April 3, 1971 placed the case of the petitioner before the Advisory Board. 519 The petitioner sent two representations dated March 17, and April 19, 1971 denying the allegations made in the grounds for passing the order of detention and pleaded that he was innocent. He has admitted in these representations that he was arrested on March 5, 1971. In neither of these representations did the petitioner make a request that he should be provided an opportunity of being heard in person by the Advisory Board. The State Government rejected the representations of the petitioner, but forwarded them to the Advisory Board for being considered. The Advisory Board after considering the, materials placed before it relating to the detention of the petitioner including the represen tations made by him on March 17, 1971 and April 19, 1971, submitted its report on May 11, 1971 to the State Government stating that it is of opinion that there is sufficient cause for the detention of the petitioner. The State Government passed an order on July 12, 1971 under section 12(1) of the Act confirming the order: of detention dated March 2, 1971 passed by the District Magistrate and directed that the petitioner 's detention shall be continued till the expiration of twelve months from the date of his detention. The petitioner has challenged the order of detention on the ground that he has never committed any offence nor has he been involved in any illegal activities as alleged in the grounds of detention. He has further stated that the various allegations mentioned against him are false and that he never participated in any of the incidents referred to in the grounds of detention. The petitioner has further stated that he is innocent and that he has been illegally detained. It Will be noted from his averments in the writ petition that except denying that the allegations are false and that he has never participated in any of those incidents referred to in the grounds of detention, he has not alleged any mala fides nor challenged the jurisdiction of the officer who, passed the order of detention or the various proceedings connected therewith. Under section 3 (1) of the Act, *hat is required is the satisfaction of the State Government or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order. In the order of detention dated March 2, 1971, the District Magistrate has stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary to detain the petitioner and that the order was being passed in exercise of the powers conferred on the District Magistrate by sub section (1) read with subsection (3) of section 3 of the Act. In the grounds of detention 520 . furnished to the petitioner on March 5, 1971 along with the order dated March 2, 1971 the following particulars have been given: "(1) That, on 26 1 71 between 11.00 and 12.31 hours, you along with your associates being armed with bombs, ballasts, pipe guns, lathis etc., assembled at Piali Railway Station and created terror among the passengers by charging bombs and showering ballasts indiscriminately and also moving from compartment to compartment of train Nos. SC 193 UP and SC 195 UP in search of your rivals, shouting that "if I get the Rascal, I will kill them" and in doing so you caused injury to some innocent passengers and broke the glass panes of driver 's cab of SC 195 Up. You created disturbance of the public order thereby. (2)That, on 2 2 71 at about 17.39 hours, you along with your associates, being armed with bombs, daggers etc., attacked and assaulted the guard of train No. SC 199 Up at Champahati Railway Station and also created terror among the passengers by charging a bomb. You created disturbance of the public order thereby. (3) That on 9 2 71 at about 13.15 hours you and your associates charged bombs and ballasts on duty Police party at Jadavpur Railway Station as they seized 10 bags of rice weighing about 3 quintals from SC 195 Up, while you were taking the said stock to Calcutta rationing area illegally by train. Your attack grew so violent that the Police party had to open fire upon you in self defence. Your violent activities created serious panic in the Station area and the public order was disturbed thereby. " In the two representations dated March 17 and April 19, 1971 made to the State Government, the petitioner after referring to the fact that he was arrested on March 5, 1971 has denied that he was involved in any of the types of violent activities referred to in the grounds for detention. He has further stated that he is leading a very honest life doing the work of mason and that the allegations made against him are false. As we have already mentioned, the petitioner did not ask for an opportunity of. being heard,in person by the Advisory Board. He has not also alleged in these representations and mala fides in passing the order of dention. The District Magistrate who passed the order of detention has filed a counter affidavit. The District Magistrate has stated that the petitioner is rice smuggler operating in Subarban Railway 521 trains in Southern Section of Eastern Railway and that he along with his associates armed with bombs and other deadly weapons attacked the passengers and the guard of railway trains and created terror by hurling bombs in Champahati and Piali Railway Stations. The District Magistrate further proceeds to state that the petitioner was detained for acting in a manner prejudicial to the security of the State or the maintenance of public order in the Jadavpur area of the district of 24 Parganas for his having taken a leading and active part in violent activities. It is further stated in the counter affidavit that the activities of the petitioner disturbed the public order and were so persistent and violent that he became a terror to the residents of the locality and the railway traveling public and that but for his detention he could not have been prevented from acting in a manner prejudicial to the security of the State ,or maintenance of public order. It is further stated that the deponent after receiving reliable information relating to the anti social and prejudicial activities of the petitioner and after carefully considering these materials, he was fully satisfied that the petitioner was engaged and was indulging in activities which were prejudicial to the security of the State or the maintenance of public order, and that his detention was essential. On being thus satisfied, the District Magistrate proceeds to state that he bona fide passed the order of detention on his own satisfaction, judgment and reasoning. The counter affidavit then proceeds to state about the order of confirmation passed by the State Government and other matters resulting finally in the order passed by the Government on July 12, 1971. It may be pointed out that in paragraph 6 of the counter affidavit it has been mentioned that the Advisory Board submitted its report on May 11, 1971 "after hearing the petitioner. " This statement is obviously wrong because the petitioner never asked for being heard in person. The Advisory Board also does not say that the petitioner was heard in person. The counsel appearing for the State has expressed his regret regarding this mistaken averment made in the counter affidavit. But that does not in any manner advance the case of the petitioner, as we will presently show. We have already referred to the fact that the petitioner has merely denied his being associated with the incidents. referred to in the grounds of detention. We are satisfied from the averments made by the District Magistrate in the counter affidavit, which have not been further controverted by the petitioner by filing any rejoinder that the order of detention has been validly and properly passed. Mr. V. Mayakrishnan, Amicus Curiae, appearing on behalf of the petitioner has urged that every one of the grounds has referred to the activities of the petitioner having resulted in disturbance of 522 public order. But the order of detention refers to the fact that the District Magistrate was of the view that the petitioner should be detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. No ground showing as to how any activity of the petitioner is prejudicial to the security of the State justifying the order Of detention has been furnished to the petitioner. Therefore, according to the learned counsel, the order of detention is illegal inasmuch as the petitioner has not been informed of any grounds as to how his activities are prejudicial to the security of the State. Inasmuch as both the matters have been mentioned in the order of detention, it must be that the detaining authority has taken into account extrenuous and irrelevant matters in passing the order of detention. In particular, according to the learned counsel, it is only the matters referred to in sub cl. (1) of cl. (a) of section 3 (2) of the Act that will relate to the activities adversely affecting the security of the State. None of those matters have been mentioned in the grounds furnished to the petitioner. Therefore, it is not clear whether the detaining authority passed the order to prevent the petitioner from acting in any manner prejudicial to the Security of the State or for maintenance of public order. For all these, reasons, the counsel urged, the order of detention is illegal. Mr. section P. Mitra, learned counsel appearing for the State drew our attention to the provisions contained in section 3(2) of the Act and pointed out that the various acts mentioned in the grounds of detention come within the expressions "acting in any manner prejudicial to the security of the State or the maintenance of public order." In particular he relied upon cl. (d) of section 2 and pointed out that the petitioner has committed an offence under the , (Act No. 6 of 1908) and, therefore, his detention was legal. We are not inclined to accept the contention of the learned counsel for the petitioner. As already mentioned, under section 3(1) of the Act, what is required is the satisfaction of the State Government or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order. As defined by sub section (2) of section 3, the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order means : lm15 "(a)using or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon (i) to promote or propagate any cause or ideology the promotion or propagation of which affects 523 or is likely to affect, adversely the security of the State or the maintenance of public order. or (ii)to overthrow or to overawe the Government established by law in India. Explanation In this clause, "lethal weapon" includes fire arms, explosive or corresive substances. swords, spears, daggers, bows and arrows; or (b)committing mischief, within the meaning of section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government or any local authority or any corporation owned or controlled by Government or any University or other educational institution or on any public building, where the commission of such mischief disturbs, or is likely to disturb, public order; or (c)causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. Explanation In this clause, "object of public veneration" includes any portrait or statute of an eminent Indian, installed in a public place as a mark of respect to him or to his memory; or (d)committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the or the , where the commission of such offence disturbs, or is likely to disturb, public order; or (e)in the case of a person referred to in clause (a) to (f) of section 110 of the Code of Criminal Procedure, 1898, committing any offence punishable with imprisonment where the commission of such offence disturbs or is likely to disturb, public order. It will be seen that the Act itself furnishes a dictionary meaning. for the two expressions and a perusal of cls. (a) to (e) clearly shows that any of the matters referred to therein will be both " prejudicial to the security of the State or the maintenance of public order". We are not inclined to accept the contention on behalf of the petitioner that it is only sub cl. (1) of cl. (a) of section 3(2) which 524 deals with the matters, which adversely affect the security of the ,State. In fact that very sub clause refers to the 'matters mentioned therein as affecting the security of the State or the maintenance of public order. Therefore, in this case the grounds of detention .cannot be held to be vague nor can the order of detention be held to be invalid on the ground that the petitioner must have been detained only to prevent him from acting in any manner prejudicial to the maintenance of public order and not to the security of the State. In particular, under cl. (d) of section 2, a person will be considered to be acting in a manner prejudicial to the security of the State or the maintenance of public order, if he commits any offence under the . The various incidents mentioned in the grounds of detention may also come under cl. (b) of sub section (2) of section 3 Section 3 of the , is as follows : "Sec. 3 : Any person who unlawfully and mali ciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added." ' The various grounds mentioned in the order of detention clearly bring the activities of the petitioner under section 3 quoted above. The date and the place as well as the time when the incidents occurred, and also the train numbers which were affected, as well as the association of the petitioner with those incidents, have been fully given in the grounds of detention. No doubt the names of the persons, who are stated to be his associates have not been given. For all the above reasons, we are satisfied that the order of detention is valid. In the result, rule nisi is discharged and this writ petition dismissed. G.C. Petition dismissed.

Section 15(4) of the Forward Contracts (Regulation) Act, 1952 is conceived in the larger interest of the public to protect them against the malpractices indulged in by members of recognised associations in respect of transactions in which their duties as agents come into conflict with their personal interest. Parliament had made a writing, evidencing or confirming the consent or authority of a non member, as a condition of the contract if the member has entered into a contract on his own account. So long as there was no such writing there was no enforceable contract. Under the Act, there is not only an express prohibition but also punishment for contravention of that prohibition. The assessee, a registered firm, was a member of the Saurashtra Oil and Oilseeds Association, and was carrying on the business of commission agency and general merchants. It was also doing forward business. During the assessment year 1958 59 it incurred a loss in certain transactions. Those transactions were in contravention of the provisions of section 15(4) of the Forward Contracts (Regulation) Act. The assessee claimed that the loss was allowable under section 10(1) of the Income tax Act, 1922, as a deduction against its other business income even if the losses were incurred in illegal transactions. The Income tax Officer rejected the contention of the assessee, and also held that the losses incurred in illegal business could not be deducted from speculative profits under section 24 of the Income tax Act. The Appellate Assistant Commissioner confirmed the order. The Tribunal held that the assessee could not set off the loss against the other income under section 10(1) of the Income tax Act but was entitled to do so under section 24. On the questions referred to the High Court namely : (1) Whether the loss was in respect of illegal contracts, (2) Whether the loss was a result of speculative transactions and therefore could be set off under section 24 of the Income tax Act, and (3) whether even if the loss was as a result of illegal transactions the assessee was entitled to set off the loss under section 10(1) of the Income tax Act, the High Court did not answer the first question but held that the losses could be set off both under section 10 and section 24 of the Income tax Act. In appeal to this Court, HELD:(1) It is well settled that contracts which are prohibited by statute, the prohibition being either express or implied, would be illegal and unenforceable if they are entered into in contravention of the statute. Therefore, the contracts in the present case, were illegal contracts and the loss was in respect of such illegal contracts. [955 C D] Sunder Lal vs Bharat Handicrafts ; , followed. 951 (2)Under Explanation 2 of section 24 a speculative transaction means a transaction in which a contract for purchase and sale of any commodity is periodically or ultimately settled otherwise than by actual delivery etc.; but the contract has to be an enforceable contract and not an unenforceable one by reason of any taint or illegality. In the present case, the contracts were illegal and unenforceable on account of the contravention of section 15(4) of the Forward Contracts (Regulation) Act. The High Court was therefore in error in considering that set off could be allowed under section 24(1) of the Income tax Act. [959 D F] (3)While section 10(1) of the Income tax Act imposes a charge on profits or gains of a business it does not provide how those profits are to be computed. Section 10(2) enumerates various items which are admissible as deductions but they are not exhaustive. The profits and gains which are liable to tax under section 10(1) are what are understood to be such under ordinary commercial practice. The loss for which the deduction is claimed must be one that springs directly from the carrying on of the business and is incidental to it, that is, the profit was earned and the loss was sustained in the same business. If this is established the deduction must be allowed provided that there is no provision against it. If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law but that does not take the profits out of the taxing statute. Simi larly, the taint of illegality of the business cannot detract from the loss being taken into account for computation of the amount which can BE subjected to tax as profits. Cases which deal with payment of a penalty for infraction of law or the execution of some illegal activity stand on a different footing, because, an expenditure is not deductible unless it is a commercial loss in trade and such a penalty cannot be described as such. [956 G H. 957 A B, D E, G H; 959 H; 960 A B] [Since in the present case no finding was given by the High Court that the two businesses in which profits were made and losses were sustained were the same, the matter was remanded to the High Court for decision on this point.] Raj Woollen Industries vs C.I.T., Simla, , Chandrika Prasad Ram Swarup vs C.I.T., U.P. & C.P., 7 I.T.R. 269, Badridas Daga vs Commissioner of Income tax, 34 I.T.R. 10, Haji Aziz & Abdul Shakhor Bros vs C.I.T., Bombay City, and Allen vs Fraquharson Bros. , referred to.

Appeals Nos. 1682 1683/ 71. (From the Judgment and Order dated the 14th May 1969 of the Calcutta High Court in I.T. Ref. No. 60 of 1968) G.C. Sharma and R.N. Sachthey, for the appellant B. Sen, S.K. Banerice and P.K. Mukherjee, for respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. The fiscal not the philosophical implications of Jesus ' pragmatic injunction 'Render to Ceasar the things that are Caesar 's, and to God the things that are God 's fall for jural exploration in these appeals by special leave, the appellant being the Union of India represented by the Commissioner of Income tax, West Bengal, and the Respondent, Sree Jagannathji and the subject matter the taxability of the deity Jagannathji by the State under the Income tax Act, 1922, beyond the admitted point. To appreciate the exigibility issue, we have to flash back to 19th Century Bengal and the then prevailing societal ethos of affluent Hindu Piety, and we find ourselves in the spir itual legal company of Raja Rajendra Mullick, at once holy and wealthy, who, in advancing years, executed a comprehen sive will to promote his cherished godly wishes and to provide for his secularly dear cause and near relatives. The construction of this testamentary complex of disposi tions and the location of its destination are the principal exercises in these appeals. 485 Raja Rajendra Mullick Bahadur of Calcutta executed his last will and testament on 21 February 1887. While the author of the will was a Bengali brahmin of the last cen tury, the draftsman of the document was John Hart, an Eng lish solicitor. While the author 's wishes are usually transmitted into the deed by the draftsman, the diction and accent are flavoured by the draftsman 's ink. So it happens that this will represents pious Bengali wishes and disposi tions but draped in an English Solicitor 's legalese. The Court 's function in such an ambiguous situation is to steer clear of the confusion imparted by the diction and to reach the real intendment (of the testator). Such an essay in ascertaining the true intent of Raja Rajendra Mullick if fraught with difficulties and our guideline has to be to pick it up from the conspectus of clauses rather than from particular expressions or isolated features. Only the totality tells the story of the author 's mind as he unbur dened himself of his properties for causes and purposes dear to his heart. The Court 's discerning loyalty is not to the formalistic language used in drawing up the deed but to the intentions which the disponer desired should take effect in the manner he designed. This hack drop of observations made, we proceed to a broad delineation of the actual provi sions. The munificent testator had enormous estates, lavish charity, piety aplenty and a large family. So he trifurcat ed his assets as it were, provided for religious objects, eleemosynary purposes and members of his family. The last was distinctly and separately dealt with and we are not concerned with the bequests so made. But the first two were more or less lugged together and ample properties earmarked therefore. How did he engineer into legal effect these twin purposes ? Did he create an absolute debutter of these properties, totally dedicating them to the deity whose devotees he and his father were, coupled with several direc tions, addressed to the shebaits, for application of the income for performance of stated pujas, execution of public charitable projects and payment of remuneration for sheba plus liberal grants and facilities to the sons and widows of sons who were objects of his bounty? Or did he really create a trust in the sense of the English law vesting the whole estate in trustees saddled with obligations to expend the income for enumerated items, godly and philantrophic, creating but a partial debutter? This is the key question calling for adjudication but an alternative but interlaced issue also arises. Assuming that a total debutter had been created, did the will contain directions for expenditure which siphoned off the income, as it accrued, for specified objects and entities in such manner that by such over riding diversion at the source, such income did not get into the hands of Lord Jagannath qua His income but reached Him merely as collector of. those receipts to be disbursed for meeting those paramount claims and charged for those des tined uses ? Or could it be the true meaning of the clauses that the whole income was to be derived by the deity but later to be applied by the human agencies representing Him for fulfiling objects, secular and sacred? A skeletal picture of the complex of provisions of the will has to be projected now for a better understanding of the pros and cons of 486 the controversy. The will opens with the words: 'I hereby dedicate and make debutter my Thakoorbaree ' and mentions a mansion which is to be the abode of his God. 'I hereby give, dedicate and make dabuttar all the jewels. hereto fore used, for the worship of the Thakoors. is another racital whereby valuables are dedicated. These are for direct use and both the Lord 's mansion and the Lord 's adorn ments yield great spiritual bliss but no secular income. Prima facie, the language is unmistakable and a full dedica tion and, argues Shri Sharma for the Revenue, the creation of absolute debutter is an unchallengeable inference. Equally indisputable is the character of the last of be quests to his sons (save one who has been disinherited) and widows of deceased sons and these are admittedly out of the area of dispute before us. But in between lies the estate (including securities) which yields high income and is disposed of in terms which lend themselves to contrary constructions, marginal obscurity and conceptual mix up of ideas borrowed from English and Hindu law. 'I do hereby give, dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties ' so run the. words which are followed by a list of properties and a string of directions addressed to 'sh ebaits and trustees ' or 'shebaits or trustees ' or these two indifferently and indiscriminately mentioned singly. He even directed a board of trustees to be constituted in the event of male heirs failing, to take over shebaitship and execution of the trusts and here and there referred to trusts under the deed. Nor were all the incomes to be devot ed to pooja. His cultivated and compassionate mind had many kindly concerns and finer pursuits. The enlightened donor appears to have had an aristocrat ic and aesthetic flair for promoting the joy of life and a philanthropic passion to share it, even posthumously, with the public at large. His charitable disposition seems to have overpowered his love of castemen and his kindness for living creatures claimed a share of his generosi ty. These noble and multiple instincts persuaded him to make an art collection which could be reckoned as among the best an individual could be proud of anywhere in the world and these paintings and sculptures, he directed, shall be kept open for public delight, free of charge. He main tained a glorious garden which he wished should be kept in fine trim and be hospitable for any member of the public who liked to relax in beautiful surrounds. His compassionate soul had, in lofty sentiment of fellow feeling, collected birds and non carnivorous animals. But, after him, the aviary and meanagerisa were to be taken care of and lovers of birds and animals were, according to his testamentary direction, permitted to seek retreat and pleasure among there natural environs. Of course, he rewarded his sons and widows sumptuously, the lay out on the rituals of wor ship consuming but a portion of the total income. At this stage, the litigative journey may be sketched to indicate how the dispute originated, developed and gained access to this Court, The story of this tax entanglement began nearly two decades ago with the I.T.O. issuing notices and the assessee deity responding with 'nil ' returns under section 22(2) of the Indian Income tax Act, 1922 for the 487 assessment years 1956 57 and 1957 58. A portion however was, by legitimate concession of the Income Tax Department, carved out of the total income as non taxable. According to the High Court. "When the proceedings for the assessment year 1955 56 were pending before the Income Tax Officer, the assessee had flied an applica tion under article 226 of the Constitution of India and had obtained an interim stay against the said proceedings. It appears that on the 9th October 1961 in terms of the settlement arrived at between the Income Tax Department and the assessee the interim stay of proceed ings was vacated. It was recorded in the said order that part of the income of the assessee which would be proved before the Income Tax Authorities to have been applied in connection with (a) feeding of the poor, (b) subscription to other charities enuring for the benefit of the public would be exempt ed under section 4(3)(i) of Indian Income tax Act, 1922. " We regard this stand of the Revenue as correct in the light of the provisions of s.4(3) (i) and hold, in limine, that whatever the outcome of the contest, the amounts spent on poor feeding and other public charitable purposes are out side the reach of the tax net and are totally exempt. We may, in fairness, state here that counsel for the Revenue, Shri Sharma, rightly agreed that the correct legal position, on a sound understanding of s.4(3) (i) of the Act, was that these charitable expenditures were totally deductible from the computation for fixing the tax. Let us continue the later developments. For assessment for the year 1956 57 the Income tax Officer was of the opinion, on the construction of the said will, that besides directions for spending amounts on charitable objects, the will had also provided for payment of certain fixed allow ances to the acting shebaits as well as the widows of the deceased shebaits, maintenance of horse drawn carriages and motor cars for the use of the shebaits, medical aids to the shebaits, and the members of their families, expenses on account of Srardh caremony of the ancestors of the shebaits and other private charities. On behalf of the assessee it was claimed before the ITO that the remuneration the trustees and the allowances to the widows of the deceased trustees as provided in the will created a charge on the income of the Trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hands of the trustees. The ITO rejected that contention. lie held that reading the will as a whole it was clear that the remuneration to the shebaits and the allowances to the widows were merely applications of the trust income and as such not deductible. According to the ITO, under the will, the shebaits and trustees were to, collect the income of the whole debutter property in the first instance and after paying the government revenues and taxes and rates and other outgoings, perform the puja and the other ceremonies for the worship of the family deity and therefore spend amounts on charitable and public purposes and lastly to pay the remuneration, allowances and 1546SCI/76 488 private donations. The ITO therefore determined the income of the trust estate under sections 9 and 12 of the Indian In come. Tax Act, 1922 and computed income from property at Rs. 1,94,377/ and income from other sources at Rs. 97,248 making a total of Rs. 2,91,625/ . From the above he deducted the amounts spent on charitable objects such as feeding of the poor, maintenance of art gallery and manager ie for birds and non carnivorous animals. A sum of Rs. 1,32,023/ was subjected to tax for the assessment year 1956 57. The ITO followed the same principle for the assessment year 1957 58 and determined the assessable income at Rs. 1,06,067/ . The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order on November 25, 1963 dismissing the assessee 's appeals on all the grounds. On appeal to the Tribunal, a full legal debate followed and, while the Revenue won substantially, some items more were held exempt on the holding that the direction contained in the will for the expenditure on the performance of Sradh and other ceremonies for the spiritual benefit of the testa tor and his ancestors must also be held to be obligations created by the testator which the trustees or the shebaits were obliged to discharge before applying the income for the benefit of the deity. Both parties moved the Tribunal for referring certain questions of law under section 66( 1 ) and the sequel was a reference of two questions at the instance of each. The four questions may be set out as the starting point of the discussion: "( 1 ) Whether on a proper construction of the will of the late Raja Rajendra Mullick dated 21St February 1887, the Tribunal was fight in rejecting the assessee 's claim that the only incomes which could be subjected to income tax in the hands of the deity Sri Sri Jagannath Jee are the beneficial interests of the said deity under the terms of the will as represented by the expenses incurred by the shebaits for the daily Seva Puja of the deity and the performance of the various religious ceremonies connected with the said deity as mentioned in the will ? (2) If the answer to the above question be in the positive, whether on the facts and in the circumstances of the ease and on a proper interpretation of the terms of the will of the late Raja Rajendra Mullick Bahadur, the Tribu nal was right in holding that the expenses incurred for payment of remuneration to the shebaits, and the monthly allowances paid to the widows of the deceased shebaits, as also the expenditure incurred for maintaining horses, carriages or motor cars for the use of shebaits concerned and the annual value of such part of the debutter property as is being used by the shebaits and their families for the purpose of their residence, all in terms of the aforsaid will, could be included in the total income of the assessee in this case ? (Questions referred by assessee) 489 (3) Whether, on the facts and in the circum stances of the case and on a proper construc tion of the will of Raja Rajendra Mullick executed on the 21st February 1887 the Tribu nal was right in holding that the surplus of the income of the estate after defraying the expenses mentioned in the said will was held in trust for charitable purposes and was thus exempt from taxation under s.4(3) (i) of the Indian Income tax, Act 1922 ? (4) Whether, on the facts and in the circum stances of the case and on a proper construction of the aforesaid will the tribunal was right in holding that the amounts spent for performing Sradh and other ceremonies for the Spiritual benefit of the testator as well as subscriptions and dona tions to charitable societies and for charitable purposes were diverted by an over riding title and was accordingly to be exclud ed from the total income of the Deity ?" Questions referred by the CIT) The High Court, on a meticulous considera tion of the entire will, decided against the Revenue on the spinal issue and took the view that "reading the will as a whole we are of the opinion that the entire beneficial interest in the properties did not vest in the assessee deity. The assessee deity was not the owner of the properties. Therefore the only income which could be subjected to income tax in the hands of assessee would be the beneficial interest of the said deity under the will, which would be expenses incurred for the seva puja of the deity and for the various reli gious ceremonies connected with the said deity and the value of the residence of the deity in the Temple. " The back of the State 's contention was thus broken but, even though vanquished, by special leave it.sought to agitate in appeal the case that the testator had created an absolute debutter of the whole estate, and not a trust with estate vested in the trustees, that the directions given to the 'shebaits and trustees ' were mere mandates for application of the income in the hands of the deity and not over tiding diversion at the source and so all the receipts, save what had been excluded by the. officer, were exigible to tax. Although it may not be strictly pertinent as a circum stance to spell out the intention of the testator, it may be of value as background material to have a sample break up of the figures of expenditure laid 490 out in fact in one of the assessment years. We give the actuals for 1956 57: Rs. (1)Expenses incurred for the poojas specified for the will 4,637/ (2)The money laid out on feeding the poor 78,295/ (3)The cost of maintaining the art gallery 36,963/ (4) Upkeep of the aviary and menagerie 13,263/ (5) Cost of keeping the garden trim 2,979/ (6) Other miscellaneous charges 4,014/ (7) Expenses laid out on the shebaits and trustees, their residence and main tenance of the horse drawn carriages etc 66,254/ It is fair to comment that, even making allowance for annual variations, price fluctuations and change in circum stances, the pujas consume but a small fraction, that public charitable purposes bulk prominently in the budgeted ex penditure and that the sums spent on the 'shebaits and trustees ' are liberal enough to exceed prudent reward for services. To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable causes like poor feeding, art gallery, aviary, menagerie and keeping a garden. Together with the cost of the rituals the budget was dominently religion charitable. These facts have no bearing on the construc tion of the will but invests the perspective with a touch of realism. We may now tackle the crucial problem in the case the decoding of the will to discover the repository of the gift. Did the testator create an absolute or partial debutter? Or was there no dedication to the idol but a vesting of the legal estate in the trustees (in the sense of the English law) with figuciary obligations to expend for specific purposes. Shree Jagannathjee ranking as one among the recipients of his benefactions ? The use of words like 'trusts ', 'shebaits and trustees ' has lent muscle to this logomachic exercise but we have to push aside the English hand to reach at the Indian heart. The principles governing the situation are those which rulings of courts, imbibing the Indian ethos, appreciating the Hindu sacred sentiments and applying the law of reli gious and charitable trusts gathered from ancient texts, have crystallised into an informal code. The passage of decades after the enactment of the Constitution has not succeeded in persuading Parliament into legislative action for making a secular code except of some limited extent governing the subject of Indian charitable trusts. And this unnoticed parliamentary procrastination has com pelled the courts to dive into hoary books and ' vintage case law to ascertain the current law. We will therefore navigate, with this ancient mariner 's compass, although we have the advantage of an authoritative work in B.K. Mukher jea on Hindu Law Religious and Charitable Trusts, relied on by counsel on both sides. 491 Two paramount background considerations of assistance to decipher the intention of the testator, which have appealed to us, may be mentioned first. We are construing the will of a pious Hindus aristocrat whose faith in ritual perform ances was more than matched by his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced by a universal love and compassion. Secondly, the sacred sentiment writ large in the will is his total devotion and surrender to the family deity Sree Jagannath Jee. It is easy to see that, in formal terms, the author makes a dedication to Sree Jagsmath Jee and calls the properties debutter. But Shri B. Sen, for the respondents,.contests the finality of such a verbal test and counters it by reliance on expressions like 'shebaits and trustees ' and 'trusts ' and urges that there are no clear words of vesting so far as the second category of properties is concerned. It is trite but true that while the label 'debutter ' may not clinch the legal character, there is much in a name, fragrant with profound sentiment and expressive of inner dedication. It looks like doing violence to the heart of the will if we side step Sree Jagannath Jee as the divine dedicatee, down grade him to the status of but one of the beneficiaries and; by judicial construction, transmit the sanctified estate into human hands as the legal owners to distribute the income, one of the several objects being doing pujas prescribed. The will, right in the forefront, declares: 'I hereby dedicate make debutter ', 'I do hereby dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties. ' 'I hereby give, dedicate and make debutter all the jewels . to the said Thakoor Sree Sree Jagannathjee '. These solemn and emphatic dedicative expressions cannot be wasted words used by an English Solicitor but implementatory of the intention of the donor whose inmost spiritual commitment, gathered from the many clauses, appears to be towards his family Thakoor. Of course, if there are the clearest clauses striking a contrary note and creating but a partial debut ter, this dedicative diction must bow down. The law is set down thus by B.K. Mukerjea: "The fact that property is ordinarily de scribed as Debutter is certainly a piece of evidence in favour of dedication, but not conclusive. In Binod Behari vs Manmatha (21 C.L.J. 42) Cox J. observed as follows : "The fact that the property is called Debutter is a doubtless evidence in the plain tiff 's favour but it does not relieve them of the whole burden of proving that the land was dedicated and is inalienable." (p. 131) Though inconclusive it carries weight in the light of what we may call the mission of the disposition which is inspired by devotion to 'my Thakoor ' and animated by a general reli gious fulfilment. It must be 492 remembered that the donor was not tied down by bigotry to performance of pujas, important though they were. A more cosmic and liberal view of Hinduism informed his soul and so in his declaration of dedication to Sree Jagannathjee he addressed to the managers many directions of a broadly religious and charitable character. His injunction to feed the poor was Narayana Seva, for worship of God through service of man in a land where the divinity in daridra narayana is conceptually commonplace and, while it is overt ly secular, its motive springs from spiritual source& It is religion to love the poor. Likewise, his insistence on the aviary and the menageries and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots. Hinduism worships all creation: (peace be unto all bipeds and even so to all quadrupeds)). Indeed, the love of sub human brethren. is high religion. For "He prayeth best, who loveth best All things both great and small, For the dear God who loveth us, He made and loveth all." (Coleridge, in Ancient Mariner) From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation. The sublime mind of Mullick was obvi ously in religious sympathy with fellow beings of the lower order when he should this tenderness to birds and beasts and shared it with the public. The art gallery too had link with religion in its wider connotation although it is plainer to regard it as a gesture of aesthetics and charitable disposition. God is Truth, Truth is beauty, beauty Truth. A thing of beauty is a joy for ever. In fact, for a highly elevated Indian mind, this conceptual nexus is not far fetched. The garden and the 1love of flow ers strike a psychic chord at once beautiful and religiously mystical, as any reader of Wordsworth or other great poet in English or Sanskrit will agree. The point is that the multiform dispositions had been united by a spiritual thirst and, if read in their integrality, could be desig nated religions cum charitable. In sum, the primary in tendment was to dedicate as debutter and to direct fulfil ment of uplifting religions and para religious purposes, the focus being on worship of Sree Jagannathjee and the fall out some subsidiary, yet significant, charitable items. The finer note struck by the felt necessities of his soul was divinised and humanised, the central object being Sree Jagannathji, the Lord of the Universe. Of course Sri Sen submits that verbalism cannot take us far and the description of debutter cannot be decisive because the magnitude of the expenses on the various items, apart from other telling clauses 493 which will presently advert to, was indicative not of a dedication to the idol but of the general charitable bunch of dispositions to be carried out through the agency of trusteeship in the sense of the English Law. For instance, he argues that feeding the poor, maintenance of the art gallery, menagerie, aviary and gardens and fulfilment to the other ' charities have little to do with idol qua idol. Moreover, making a substantial margin for the remuneration of the Shebaiti, there is some clear excess in favour of donor 's family members in the amounts to be paid or spent on behalf of the shebaits cum trustees. These are strongly suggestive of a non debutter character, especially because the cost of the poojas makes but a small bite on the total income. He reinforces the submission by many other points which may be mentioned at this stage. He states that the donor, if he meant a straightforward case of debutter, would have confined himself to the expression 'shebaits ' but there was a sedulous combination of 'shebaits ' and or 'trustees ' and there was also reference to trusts in some places. Provision for the heirs, for the residence of the shebai tee 's families, the norse carriages and the like also do not smack of debutter. A specification of the minimum age of 18 to become shebaits and trustees also savours of trusteeship rather than shebaitship. Appointment of a Board of Trus tees on shebaits failing in succession throws clear light on the creation of a trust in the English sense rather than a debutter in the Hindu sense. Again, shebaitship is property and if what is created is only shebaitship, not trustee ship, how can the testator exclude females, insist on 18 years of age and prescribe a course of succession not quite consistent with Hindu law? Does this not also point towards trusteeship and away from debutter? In any case, a fair conclusion, according to Sri Sen, would be to regard the appointees as shebaits for purposes of pooja and management of the shrine and as trustees for the other substantial purposes. Which means that there is a partial debutter and the vesting of the estate in the trustees. There if other evidence to be gleaned from the tenor of the will to which our attention has been drawn by Sri Sen with a view to emphasize that public charities of a secular character, construction of buildings for residence, for feeding the poor, repairs and maintenance of a miscellaneous sort plus detailed directions towards all shebaits and trustees are telling against absolute debutter. Since the expenses for the poojas cover only a small part of the total income, a correct reading of the will may be to hold that the corpus vests in the trustees, subject to an interest being created in the deity to the extent of the share of the income reasonably necessary for the pooja and residence of the Lord. We see force in these submissions and shall deal with them presently. Before that we may state the correct legal approach as set out by Mukherjea in his Tagore Law lectures: "Even when a deal of dedication is not ficti tious or benami the provisions of the deed might show that the benefit intended for the deity was very small or of a nominal charac ter. If the gift to the deity is wholly illu sory there is no Debutter 494 in the eye of law, but there are cases where a question arises on the construction of the document itself, whether the endowment created was only a partial one meaning thereby that the dedicated property did not actually vest in the idol, but the latter enjoyed a charge upon the secular property of the founder, given to his heir or other relations, for the expenses of its worship. I will discuss this matter separately under the second head. I may only state here that where there is an out and out dedication to an idol, the reservation of a moderate portion of the income of the endowed estate for the remuneration of the shebait would not invalidate the endowment either as a whole or to the extent of the income so served. In Jadu Nath vs Thakur Sitaramji (44 I.A. 187) there was a dedication of the entire property of the founder to the idol, and the direction given was that half of the income was to be applied for the worship of the idol and repairs of the temple, and the other half was to go for the upkeep of the managers. Their Lordships of the Judicial Committee in holding the gift as a valid Debutter observed as follows : "The deed ought to be read just as it appears, and there is no reason why it should not be so construed as meaning simply what the language say% a gift for the maintenance of the idol and the temple, under which the idol is to take the property, and for the rest, the family are to be the administrators and manag ers and to be remunerated with half the income of the property. If the income of the proper ty had been large a question might have been 'raised, in the circumstances as throwing some doubt upon the integrity of the settlor 's intentions, but as the entire income is only 800 rupees a year, it is obvious that the payment to these ladies is of the most tri fling kind and certainly not an amount which one could expect in a case of this kind. " Following this decision it wag held by the Calcutta High Court in Chandi vs Dulal (30 CMN 930) that a provision for remuneration of the Shebaits with half of the income of the Debutter property (which proved to be small sum)as well as their residence in the Thakur bari were quite compatible with an absolute endowment. You should bear in mind in this connection, that when a property is absolutely dedicated to a deity, it is not necessary that every farthing of the income should be spent for the worship of the idol itself. It is quite within the competence of a settlor to provide that the surplus income should be spent for the charitable objects e.g. feeding o] the poor. Sadavart or entertainment of pilgrims and guests is often found to be an adjunct of a public Debutter. In the case of Monohar Mukherji vs Bhupendra Nath Mukherjee FB) there was a provision in the deed of dedication that the surplus income of the endowment should be spent upon maintenance of childless widow 495 of the family and construction of roads and excavation of the tanks for public use, and these directions, it was held, did not make the dedication incomplete. (pp. 129 130) (Underscoring supplied with a pur pose) The demarcating line between absolute and partial debutter is drawn by the author thus: "Where the dedication made by settlor in favour of an idol covers the entire benefi cial interest which he had in the property, the Debutter is an absolute or complete Debutter. Where however, some proprietary or pecuniary right or interest in the property is either undisposed of or is reserved for the settlor 's family or relations, a case of partial dedication arises. In a partial dedication the deity does not become the owner of the dedicated property but is in the posi tion of a charge holder in respect of the same. A charge is credited on the property and there is an obligation on the holder to apply a portion of the income for the reli gious purposes indicated by the settlor. The property does not become extra commerci um like Debutter property, strictly Speaking so called, but is alienable subject to the charge and descends according to the ordinary rules of inheritance. It can be attached and sold in execution of decree against the holder. Whoever gets the property however takes it burdened with the charge or reli gious trust. In Dasaratha Rami Reddy vs Subba Rao ; it was observed by the Supreme Court that the question whether a dedication was complete or partial must depend on whether the settlor intended that his title should be completely extinguished and transferred to the trust, that in ascer taining that intention regard must be had to the terms of the document as a whole and that the use of the word 'trust ' though of some help in determining such intention was not decisive of the matter. It sometimes happens that the settlor merely provides for the perfomance of certain religious services or charities from out of the income of properties specified, and the, question arises whether in such cases the specified properties themselves form the subject matter of dedication. Where the entire income from the properties or a sub stantial portion thereof is directed to be applied, or is required for such purposes, then the property itself must be held to have been absolutely dedicated for those purposes. Where, however, after applying the income for the purposes specified, there still remains a substantial portion thereof undisposed of, then the dedication must be held to be partial and the properties 496 will continue to be held in private ownership, subject to a charge in favour of the charities mentioned? ' (p. 134 135) Mr Sen cited several decisions which are more appropriate to a contest between shebaits and heirs and do not directly bear on rival considerations decisive of the absolute or partial nature of a debutter and so we do not burden this judgment with those many citations but may refer to a few. In Har Narayan(1) the Judicial Committee was dealing with a case where a dispute was between the heirs and the shebaits and it was held that "although a will provides that the property of the testator 'shall be considered to be the property of a certain idol, the further provi sions such as that the residue after defraying the expenses of the temples 'shall be used by our legal heirs to meet their own expenses ', and the circumstances, such as that in the ceremonies to be performed wore fixed by the will and would absorb only a small proportion 01 the total income, my indicate that the intention was that the heirs should take the property subject to a charge for the perform ance of the religious purpose named. " Granting the creation of a debutter, the telling tests to decide as between an absolute and partial debutter cannot necessarily be gathered from this ruling. On the other hand, this very ruling emphasized that a substantial part of the income was to go to the legal heirs to meet their own expenses and that circumstances deflected the decision. Moreover. Lord Shew of Dunfermline, there observed: "The case (jadu Nath Singh: 44 I.A. 187) merely illustrates the inexpediency of laying down a fixed and. general rule applicable to the construction of settlements varying in terms and applying to estates varying in situation." (p. 149) The observations of this Court in Charusila Dasi(2) a case dealing with the question of legislative competency on the constitutionality of the Bihar Hindu Religions Trusts Act seem to suggest that the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed were consistent with the creation of a religious and charitable trust. The crux of the matter, agitated before us, is the determination of the true intention of the testator and this has to gathered from the name used, the recitals made and the surrounding circumstances. From a bestowal of reflec tion on the subject and appraisal in the light (1) L.R. 48 I.A. 143. (2) [1959] Supp.2 S.C.R. 601. 497 of the then conditions, sentiments and motivations of the author, we are inclined to the view that Raja Mullick, the maker of the will, dedicated as debutter to his Maker and Thakoor the entire estate, saddling the human agents or shebaits with duty to apply the income for godly and near godly uses and for reward of the shebaits and for their happily living. Of course, he had horses and carriages and other items to make life enjoyable. Naturally, his behest covered the obligation to keep these costly things in good condition and regular use. The impact on the mind, if one reads the provisions reclining in a chair and lapsing into the mood of the maker of the will, is that he gave all he did to his Thakoor, as he unmincingly said, and thus dedicated to create an absolute debutter. The various directions are mostly either religious or philanthropic but not so remote as to be incongruous with dedication to an idol or creation of a debutter. The quantum of expenditure on the various items is not so decisive of the character of the debutter as absolute or partial as the accent on and subjective importance of the purposes, in the setting of the totality of commands and cherishments. His soulful wishes were for the religious and charitable objects and the other directions were secondary in his estimate. Not counting numbers nor computing eXpenses, marginally relevant though they are, but feeling the pulse of his passion to do godly good and promote public delight, that delights the spirit of his testament. Essentially, Raja Rajendra Mullick gave away his estate to his Thakoor and created an absolute debutter. He obligated the managers of the debutter with responsibility to discharge certain secular but secondary behests including benefit to family members, their resi dence and transportation. How then do we reconcile such a conclusion with the many points forcefully urged by Shri B. Sen and averted to earlier ? We think that the expressions 'shebaits and trustees ', 'shebaits or trustees ', 'shebaits ' 'trustees ', and 'trusts ' were indiscriminately used, indifferent to sharp legal semantics and uncertain of the precise import of these English legal terms in the Indian context. More, an English solicitors familiar legal diction super imposed on an unfamiliar Indian debutter, rather than an exercise in ambiguity or deliberate dubiety, explains the odd expres sions in the will. The author merely intended to dedicate to Sree Jagannathji and manage through shebaits. Of course, the reference to the Board of Trustees, the majority vote and the like, strike a discordant note but the preponderant intent is what we have held it is. The magnitude of the expenditure on the items, secular and sacred, may vaguely affect the conclusion but cannot conclusively decide the issue. The religious uses related to Sree Jagannathji, the Lord of the Universe, cannot be narrowly restricted to rituals but must be spread out to embrace universal good, especially when we read the mind of a Hindu highly evolved and committed to a religion whose sweep is vasudhaiva kudumbakam (All creation is His family). The blurred lines between the spiritual and the secular, in the context of this ease, do not militate against our con struction. We are not unmindful of the stress Shri B. Sen placed on the passage in B.K. Mukherjea which we may extract: 498 "But it happens in some cases that the property dedicated is very large, and the religious ceremonies which are expressly prescribed by the founder cannot and do not exhaust the entire income. In such cases some portion of the beneficial interest may be construed as undisposed of and cannot but vest as secular property in the heirs of the founder. There are cases again where although the document purports, on the face of it, to be an out and out dedication of the entire property to the deity, yet a scrutiny of the actual provisions reveals the fact that the donor did not intend to give the entire inter est to the deity, but reserved some portion of the property or its profits for the benefit of his family relations. In all such cases the Debutter is partial and incomplete and the dedicated property does not vest in the deity as a juridical person. It remains with the grantees or secular heirs of the founder subject to a trust or charge for the reli gious uses. The earliest pronouncement of the law on the subject is to be found in the decision of the Judicial Committee in Sonatun Bysack vs Juggutsoondaree (8 M.I.A. 66) which was followed and applied in the subsequent case of Ashutosh vs Durga (L.R. 6 I,A. 182) ." Sonatun Bysack, referred to by the learned author, dealt with a case where a Hindu, by his will, gave his whole estate to the family, deity; he directed that the properties should never be divided but that the sons and grandsons in succession would enjoy 'the surplus proceeds only '. There were other kindred directions. The Judicial Committee held that the bequest to the idol was not an absolute gift: "*A reference to the second, third and fifth clauses of the will ' so runs the judg ment 'leads us to the conclusion that 'al though the will purports to begin with an absolute gift in favour of the idol, it is plain that the testator contemplated that there was to be some distribution of the, property according as events might turn out; and that he did not intend to give the proper ty absolutely to the idol seems to their Lordships to be clear from the directions which are contained in the third clause, that after the expenses of the idol are paid, the surplus shall be accumulated; and still more so from the fifth 'clause by which the testa tor has provided for whatever surplus should remain out of the interest of the property, the expenses of the idol being first deducted. It is plain that the testator looking at the expenses of the idol was not contemplating an absolute and entire gift in favour of the 'idol '. On a construction of the entire will it was held that there was a gift to the/our sons of the testator and their offspring in the male line as a joint family, and the four 'sons were entitled to the surplus of the property after providing for the performance of the ceremonies and festivals of the idol and the provisions in the will for mainte nance. " (p 136 137, Mukherjea) 499 The cardinal point to notice is what Pande Har Narayan (48 I.A. 143 emphasized: "The question whether the idol itself shall be considered beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a ques tion which can only be settled by a conspectus of the entire provisions of the will." (p. 137, Mukherjea) If, on a consideration of the totality of terms, on sifting the more essential from the less essential purposes, on sounding the depth of the donor 's wishes to find whether his family or his deity were the primary benefici aries and on taking note of the language used, if the vesting is in the idol an absolute debutter can be spell out. So considered, if the grant is to the heirs with a charge on the income for the performance of pujas, the opposite inference is inevitable. Before us, there is no dispute between the heirs and the idol. The point mooted is about the creation of an English trust, an unconventional legal step where the dedication is to a deity. On a full study of the will as a whole, we think that this benignant Bengalee 's testament, draped though in Victorian verbal haberdasho ry, had, on legal auscultation, the Indian heart beats of Hindu religious culture, and so scanned, his will intended vasting the proper ties in absolute debutter. The idol was, therefore, the legal owner of the whole and liable to be assessed as such. The respondent, however, has a second string to his bow. Assuming an absolute debut ter, there is still many a slip between the lip and the cup, between the income and exigi bility to tax. For, while, ordinarily, income accrues in the hands of the owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income. By an over riding charge, sums of money the balance of income may legally be received by the donee as his income. The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Jogen dra Nath(1) still all the amounts meant to be spent on the shebaits and the members of the family, on the upkeep of horses and carriages and repair of buildings etc., were charged on the income and by, paramount provisions, directed to these uses. These sums did not and could not come into the hands of the deity as its income and could not be taxed as such. If the 'shebaits and trustees ' collected the income by way of rents and interests, to the extent of these other disbursements they received the amounts merely as collectors of rents etc; not as receivers of income. Such amounts were free from income tax in the hands of the idol. (1) ; 500 The principle we have set out above has been blessed by a uniform catena of cases. The leading ruling on the sub ject is by the Judicial Committee in Bejoy Singh Dudhuria(1). Lord Macmillan there observed as follows: "When the Act by section 3 subjects to charge 'all income ' of an individual it is what reaches the individual an income which it is intended to charge. In the present case the decree of the court by charging the appel lant 's whole resources with a specific payment to his stepmother has to that extent diverted his income from him and has directed it to his step mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands." (p. 138 139) A case in contrast is P.C. Mullick vs Commis sioner of Income tax(2). There "The testator died in October, 1931. By his will he appointed the appellants (and another) his executors. He directed them to pay his debts out of the income of his proper ty, and to pay Rs. 10,000/ out of the income of his property on the occasion of his 'Addya Shradh ' for expenses in connection therewith to the person entitled to perform the Shradh. He also directed his executors to pay out of the income of his property the costs of taking out probate of his will After conferring out of income benefits on the second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after providing for the payment out of income 'gradually ' of divers sums to some persons, and certain annuities to others, he be queathed all his remaining property (in the events which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh who is still a minor. " The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursu ance of an obligation imposed by their testa tor. It is not a case like the case of Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Calcutta in which a portion income was by an overriding title diverted from the person who would otherwise have received it. It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand." (1) (2) 501 In Commissioner of Income tax vs Sitaldas Tirath das(1) this Court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374): "in our opinion, the true test is whether the amount sought to he deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obliga tion income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence in law does not follow. It is the first kind of payment which can truly he executed and not the second. The second payment is merely an obliga tion to pay another a portion of one 's own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. in our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another 's income. " The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to he accepted. We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes. We may quote to illus trate: "I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the Shebaits and the execution of the Trusts of this fund as and by way of remuneration for their serv ices the sum of Rupees Five hundred a month . " (1) 502 "I direct that the widows of my three deceased sons Greendro, Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distri bution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund. " So the shebaits first got the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion. These conclusions we have drawn mean that the appeals have to be allowed and the reference answered in favour of the Revenue and against the assessee. Accordingly we answer Questions Nos.1 and 2, referred at the instance of the assessee, against him and the other two questions referred at the request of the Revenue, affirmatively. While answer ing the above questions we may state that all income ear marked for religious and charitable purposes conforming to section 4(3)(i) read with Explanation to section 4(3) of the 1922 Act shall not be included in the total income. It is also clear that whatever income was agreed to be excluded in terms of the concession made by the Revenue in the High Court shah remain excluded. The fluctuating fortunes of this litigation have been occa sioned by the discordant notes struck by the different clauses of the will and the inevitable element of confusion injected by the religious, charitable and secular wishes of the Hindu testator being translated into formal, legal terms by an English solicitor in the latter half of the last century. He, therefore, direct that the parties do bear their own costs throughout. P.H.P. Appeal allowed.

Raja Rajendra Mullick Bahadur of Calcutta executed his last will on 21 2 1887. The author of the Will was a religious minded Indian, the draftsman of the document was John Hart, an English Solicitor. The Will open with the words 'I hereby dedicate and make debutter my Thakurbaree '.The Income Tax Officer issued notices requiring filing of the returns against the Deity Thakurbaree. On b:half of Deity, a nil income return was filed under section 22(2) of the Indian Income Tax Act, 1922 for the assessment years 1956 57 and 1957 58. In connection with the writ petition filed in the High Court for the proceedings in respect of assessment years 1955 56 it was conceded by the Revenue that a part of the income of the assessee which would be proved before the Income Tax authorities to have been applied in connection with feeding of the poor, sub scription to other charities enuring for the benefit of the public would be exempted under section 4(3)(i) of the Income Tax Act, 1922. The Revenue contended that on a true construction of the said will there was a complete dedication of the property to the Deity and, therefore, the income arising from the said property was taxable in the hands of Deity. It was, however, contended by the assessee that the remuneration of the trustees and the allowances to the widows of the de ceased trustees as provided in the Will created a charge on the income of the trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hand of the trustees. The Income Tax Officer taxed the income of the Deity deducting therefrom such amounts as were conceded before the High Court in respect of the prior year. The appeal preferred by the assessee was dismissed by the Appellate Assistant Commissioner. Before the Tribunal, the Revenue substantially succeeded. Thereafter, the Tribunal referred 4 questions of .law to the High Court, two at the instance of the assessee and. two at the instance. of the Revenue. , The High Court on a metic ulous consideration of the entire Will decided against the Revenue and took the view that reading the Will as a whole the entire beneficial interest in the properties did not vest in the assessee Deity. Assessee Deity was not the owner of the properties and, therefore. the only income which could be subjected to income tax in the hands of the asses see would be the beneficial interest of the said Deity under the Will which would be the expenses incurred for Seva Puja of the Deity and for the various religious ceremonies con nected with the said Deity and the value of the residence of the Deity in the temple. Allowing the appeal, HELD: 1. The Will represents pious Bengali Wishes and disposition but drafted in the hands of an English Solici tor. The court 's function in such an 484 ambiguous situations to steer clear of the confusion impart ed by the diction and to read the real intention of the testator. The courts discerning loyalty is not to the formalitistic language used in drawing up the deeds but to the intentions which the disponer desired should take effect in the manner he designed. The real question is whether the testator created an absolute or partial debutter or was there no dedication to the idol but a vesting of the legal estate in the trustees. The use of the words like trust, trustees and Shebaits can lend support to the conten tion that the legal estate vested in the trustees. However, the court has to push aside the English hand to reach at the Indian heart. We are construing the Will of a pious Hindu aristocrat whose faith in ritual performances was more than matched by his ecumenical perspective. Secondly, the sacred sentiment writ large in the Will is his total devotion and surrender to the family Deity Shri Jagannathjee. It looks like doing Violence to the heart of the Will if one side steps the Deity to the status of but one of the benefici aries. The Will in the forefront declares the dedication to the Deity. The expression trust, trustees and shebaits were indiscriminately used. The expressions are uncertain of the precise import of these English legal terms in the Indian context. The idol was, therefore, the legal owner of the whole and liable to be assessed as such. , 491B, C D, 497D, 499E] 2. The court negatived the contention that even if the property vested in the Deity, all the amounts to be spent on the Shebaits and the members of their family on the upkeep of horses and carriages and repair of buildings etc. were charge on the income and, therefore, the same did not and could not come into the hands of the Deity as his income and could not be taxed as such. If the Shebaits received rent and interest to the extent of these other disbursements they received the amounts merely as collectors of rents etc. and not as receivers of income. The terms in which the direc tions are couched do not divest the income at the source but merely direct a Shebait to apply the income received from the debutter properties for specified purposes. [499E H, 501F G]

Tax Reference No. 1A of 73. Tax Reference under section 257 of the Income Tax Act 1961 made by the Income Tax Appellate Tribunal, Ahmedabad in R.A. No. 66 (AHD) of 1971 72 arising out of I.T.A. No. 1697 of 1967 68 decided on 10 9 71 Assessment year 1962 63. 86 AND Tax Reference Nos. 10 14 of 1975 Tax Reference under section 257 of the Income Tax Act, 19(1 made by the Income Tax Appellate Tribunal, Ahmedabad in R.A. Nos. 140 144/AHD/73 74 arising out of I.T.A. Nos. 2098 2102/AHD/7172 for assessment years 1963 64 to ]97 68. V.S. Desai (in T.R. No. 1A/73), B.B. Ahuja and Miss A. Subhashini for the Appellant. Sanat P. Mehta, Ravinder Narain, A.N. Haskar and Shri Narain for the Respondent. Dr. Devi Pal, P.V. Kapur, S.R. Agarwal, Praveen Kumar and R.K. Chaudhary for the Intervener (Indian Sugar Mills). Dr. Devi Pal and D.N. Gupta for the Intervener (Bengal Chamber). R.N. Bajoria, S.R. Agarwal and Praveen Kumar for the Intervener (Indian Chamber, Calcutta). F.S. Nariman, N. Nettar, A.K. Sanghi and O.P. Vaish for the Intervener (Indian Chamber, New Delhi). The Judgment of P.N. Bhagwati, N. L. Untwalia and V. D. Tulzapurkar, JJ. was delivered by Bhagwati, J. R.S. Pathak, J. gave a separate opinion and A.P. Sen, J. gave a dissenting opinion. BHAGWATI, J. These tax references have been made by the Tribunal directly to this Court under Section 257 of the Income Tax Act, 1961 (hereinafter referred to as the Act), since there is a conflict of opinion amongst different High Courts as to the interpretation of the words "not involving the carrying on of any activity for profit" occurring at the end of the definition of "charitable purpose" in clause (15) of Section 2. Originally these references came up for hearing before a Bench of three Judges but having regard to the great importance of the question involved and the serious repercussions, which an adverse decision might have on a large number of public trusts in the country, the Bench thought it desirable to refer the cases to a larger Bench and that is how these references have now come before us. Though the references are six in number. they relate to the same assessee and raise the same question, only the assessment years being different. The assessee is the Surat Art Silk Cloth Manufacturers Association, a company incorporated under the Indian. 87 Companies Act, 19]3. The original Memorandum of Association set out the objects for which the assessee was incorporated, but we are not concerned with it since vital amendments were made in the Memorandum with effect from 14th July, 1961 at the time when the assessee was permitted under section 25 of the to omit the word "limited" from its name by order of the Central Government and it is the amended Memorandum which governed the assessee during the relevant assessment years. The amended objects, so far as material, were as follows: (a) To promote commerce and trade in Art ilk Yarn, Raw Silk, Cotton Yarn, Art Silk Cloth. Silk Cloth and Cotton Cloth. (b) To carry on all and any of the business of Art Silk Yarn, Raw Silk, Cotton Yarn as well as Art Silk f loth, Silk Cloth and Cotton Cloth belonging to and on behalf of the members. (c) To obtain import Licences for import of Art Silk Yarn, Raw Silk, Cotton Yarn and other Raw Mate rials as well as accessories required by the members for the manufacture of Art Silk, Silk and Cotton Fabrics. (d) To obtain Export Licences and export cloth manu factured by the members (e) To buy and sell and deal in all kinds of cloth and other goods and fabrics belonging to and on behalf of the Members. (f) X X X (g) X X X (h) X X X (i) X X X (j) X X X (k) X X X (l) X X X (m) X X X (n) To do all other lawful things as are incidental or conducive to the attainment of the above objects. Clause 5 of the Memorandum provided in sub clause (1) that the income and property of the assessee wheresoever derived shall be applied solely for the promotion of its objects as set forth in the 88 Memorandum and sub clause (2) directed that no portion of the income or property shall be paid or transferred, directly or indirectly, by way of dividend, bonus or otherwise by way of profit, to persons, who at any time are or have been members of the assessee or to any one or more of them or to any person claiming through anyone or more of them. What should happen to the assets in case of winding up or dissolution of the assessee, was set out in clause 10 of the memorandum and it provided that the property remaining after satisfaction of all the debts and liabilities shall not be distributed amongst the members of the assessee but shall be given or transferred to such other company having the same objects as the assessee, to be determined by the members of the assessee at or before the time of the dissolution or in default? by the High Court of Judicature that has or may acquire jurisdiction in the matter. The income and property of the assessee were thus liable to be applied solely and exclusively for the promotion of the objects set out in the memorandum and no part of such income cr property could be distributed amongst the members in any form or under any guise or utilised for their benefit either during the operational existence of the assessee or on its. winding up and dissolution. The assessee carried on various activities for promotion of commerce and trade in Art Silk Yarn, Silk Yarn, Art Silk Cloth and Silk Cloth. The income of the assessee was h derived primarily from two sources. One was annual subscription at the rate of Rs. 3/ per power loom collected by the assessee from its members and the other was commission calculated on the basis of a certain percentage of the value of licences for import of foreign yarn and quotas for purchase of indigenous yarn obtained by the assessee for the members. There was no dispute between the parties in regard to the first category of income derived from annual subscription collected from the members and it was conceded by the Revenue to be exempt from tax but the real controversy centered round the taxability of the second category of income. The amount collected by the assessee from the members in respect of licences for import of foreign yarn was credited in an account styled "Vahivati Kharach" while the amount collected in respect of quotas of indigenous yarn was credited in another account called "Building Fund". The assessee constructed a building out of the amount credited to the "Building Fund" during the accounting year relevant to the assessment year 1965 66 and it was let out to various tenants and the rent received . from them augmented the income of the assessee. The assessee claimed in the course of assessment to income tax for the assessment year 1962 63 that it was an 89 institution for a charitable purpose and its income was, therefore, exempt from tax under Section 11 sub section ( 1 ) of the Act. This claim was rejected by the Income tax officer on the ground that the objects of the assessee were not charitable within the meaning of sec. 2 clause (15). The assessee carried the matter in appeal and, in the appeal, the view taken by the Appellate Assistant Commissioner was that the purpose of the assessee was pre dominantly development of Art Silk Industry which was an object of general public utility, but since the Income tax officer had not examined whether the object involved the carrying on of an activity for profit and had also not considered whether the other conditions of section 11 sub section (1) were satisfied, the Appellate Assistant Commissioner set aside the order of assessment and remanded the case to the Income tax officer with a direction to make a fresh assessment after considering these issues. The Tribunal on further appeal at the instance of the Revenue did not agree with the procedure adopted by the Appellate Assistant Commissioner and taking the view that the Appellate Assistant Commissioner should not have set aside the order of assessment and made an order of remand for making a fresh assessment but instead, if he wanted any further facts, he should have called for a remand report from the Income tax officer and then disposed of the appeal by deciding whether the assessee was entitled to exemption from tax under section 11 sub section (1), the Tribunal directed the Appellate Assistant Commissioner to submit a remand report on the question "whether the objects for which the assessee company has been established are for charitable purposes within the meaning of section 2(15) and whether it satisfies the other conditions laid down under section 11." The Appellate Assistant Commissioner in his remand report found in favour of the assessee on both the points referred to him and after considering the remand report, the Tribunal confirmed the view taken by the Appellate Assistant Commissioner that the primary purpose for which the assessee was established was to promote commerce and trade in Art Silk and Silk Yarn and Cloth as set out in sub clause (a) of Clause (3) of the Memorandum of Association and the other subjects set out in sub clause (b) to (e) of clause (3) were merely subsidiary objects and since the primary purpose was plainly advancement of an object of general public utility, the first part of the requirement for falling within the last head of "charitable purpose" in sec. 2 clause (15) was satisfied. The Tribunal also agreed with the Appellate Assistant Commissioner that this primary purpose for which the assessee was constituted did not involve the carrying on of any activity for profit, because whatever activity was carried on by the assessee in fulfil 90 ment of the primary purpose was for advancement of an object of general public utility and not for profit. The Tribunal pointed 1 out that there was no dispute in regard to the fulfillment of the other conditions mentioned in section 11 and held that, in the circumstances, the income of the assessee was entitled to exemption under sub section (1) of section 11. The Revenue, being aggrieved by the decision of the Tribunal, made an application for a reference and since there was a conflict of decisions between the Calcutta and y Mysore High Courts on the one hand and Kerala and Andhra Pradesh High Courts on the other in regard to the true interpretation of the words "not involving the carrying on of any activity for profit", the Tribunal referred the question "whether on the facts and in the circumstances of the case, the assessee is entitled to exemption under sec. 11 (1) (a) of the Income tax Act, 1961" directly to this Court. So far as the assessment years 1963 64 to 1967 68 are concerned, the assessment proceedings followed the same pattern and the Tribunal, following its earlier decision for the assessment years 1962 63, held the assessee to be exempt from tax in respect of its income under section 11 sub section (1) and thereupon, at the instance of the Revenue an identical question of law for each assessment year was referred by the Tribunal directly to this Court. Now before we proceed to consider the true meaning and connotation of the words "not involving the carrying on of any activity for profit" occurring at the end of the definition of "charitable purpose" in section 2 clause (15), it will be convenient to dispose of a short contention raised on behalf of the Revenue in Tax Reference Nos. 10 to 14 of 1975. The Revenue urged that the objects for which the assessee was incorporated did not fall within the Category denoted by the words "advancement of any other object of general public utility" since the objects set out in sub clauses (b) to (e) of clause (3) of Memorandum of Association were for the benefit only of the members of the assessee and not for the benefit of a section of the public. It was contended that in order that a Purpose may qualify for being regarded as an object of general public utility, it must be intended to benefit a section of the public as distinguished from specified individuals. The section of the community sought to be benefitted must be sufficiently defined and identifiable by same common quality of a public or impersonal nature and where there is no such common quality uniting the potential beneficiaries into a class, the purpose would not be liable to be regarded as a "charitable purpose". The argument was that since the members of the assessee did not constitute a section of the 91 public, but were merely specified individuals, the objects set out in sub clauses (b) to (e) of clause (3) which were meant to benefit only the members of the assessee could not be regarded as objects of general public utility and hence the assessee could not be said to be an institution for a "charitable purpose" within the meaning of section 2 clause (15). We do not think it is open to the Revenue to urge this contention in the present References. These References having been made under section 257 on account of a conflict of decisions amongst different High Courts in regard to the true interpretation of the words "not involving the carrying on of any activity for profit" in section 2 clause (15), it is only that particular question which can be decided by this Court in these References. Section 257 provides that if, on an application made under section 256, the Tribunals of the opinion that, on account of a conflict in the decisions of High Courts in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme Court, the Tribunal may draw up a statement of the case and refer it through its President direct to the Supreme Court. It is only the particular question of law on which there is a conflict of decisions in the High Courts that can be referred by the Tribunal directly to this Court. Here in the present case the conflict of decisions amongst the different High Courts was as to what is the true scope and meaning of the words "not involving the carrying on of any activity for profit" in section 2 clause (15) and whether on account of the presence of these words, the purpose for which the assessee was constituted, though falling within the words "advancement of an object of general public utility" would not be a charitable purpose within the meaning of section 2 clause (15) and it was on account of conflict of decisions on this question that a direct reference was k made to this Court by the Tribunal. This Court cannot travel beyond the particular question of law which has been referred to it by the Tribunal on account of conflict in the decisions of the High Courts. It cannot in a direct reference deal with a question of law on which there is no conflict of decisions amongst the High Courts because such a question would be outside the jurisdiction of the Tribunal to refer under section 257. It is possible that a situation may arise where there may be two questions of law arising from the order of the Tribunal, one in respect of which there is a conflict of decisions amongst different High Courts and the other in respect of which there is no such conflict of decisions and in such a situation it may become necessary to consider whether one single reference comprising both questions should be made to 92 the High Court or two references can be made, one to the High Court and the other to this Court. We do not wish to express any opinion on this rather intriguing question but one thing is clear that a question of law in respect of which there is no conflict of decisions amongst different High Courts cannot be referred to this Court under section 257. The contention that the objects of the assessee did not fall within the category "advancement of any other object of general public utility" and were, therefore, not charitable within the meaning of section 2 clause (15) cannot, in the circumstances, be allowed to be raised in these References. But even if such a contention were permissible, we do not think there is any substance in it. The law is well settled that if there are several objects of a trust or institution, some of which are charitable and some non charitable and the trustees or the. managers in their discretion are to apply the income or property to any of those objects, the trust or institution would not be liable to be regarded as charitable and no part of its income would be exempt from tax. In other words, where the main or primary objects are distributive, each and everyone of the objects must be charitable in order that the trust or institution might be upheld as a valid charity Vide Mohd. Ibrahim vs Commissioner of Income tax and East India Industries (Madras) Ltd. vs Commissioner of Income tax. But if the primary or dominant purpose of a trust or institution is charitable, another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent the trust or institution from being a valid charity: Vide Commissioner of Income tax, Madras vs Andhra Chamber of Commerce(3) The test which has, therefore, to be applied is whether the object which is said to be non charitable is a main or primary object of the trust or institution or it is ancillary or incidental to the dominant or primary object which is charitable. It was on an application of this test that in Commissioner of Income tax vs Andhra Chamber of Commerce (supra), the Andhra Chamber of Commerce was held to be a valid charity entitled to exemption from tax. The Court held that the dominant or primary object of the Andhra Chamber of Commerce was to promote and project trade, commerce and industry and to aid stimulate and promote the development of trade, commerce and industry and to watch over and protect the general commercial interests of India or any part thereof and this was clearly an object of general 93 public utility and though one of the objects included the taking of steps to urge or oppose legislation affecting trade, commerce or manufacture, which, standing by itself, May be liable to be condemned as non charitable, it was merely incidental to the dominant or primary object and did not prevent the Andhra Chamber of Commerce from being a valid charity. The Court pointed out that if "the primary purpose be advancement of objects of general public utility, it would remain charitable even if an incidental entry into the political domain for achieving that purpose e.g. promotion of or opposition to legislation concerning that purpose, was contemplated." The Court also held that the Andhra Chamber of Commerce did not cease to be charitable merely because the members of the chamber were incidentally benefitted in carrying out its main charitable purpose. The Court relied very strongly on the decisions in Commissioner of Inland Revenue vs Yorkshire, Agricultural Society and Institution of Civil Engineers vs Commissioner of Inland Revenue for reaching the conclusion that merely because some benefits incidentally arose to the members of the society or institution in the course of carrying out its main charitable purpose, it would not by itself prevent the association or institution from being a charity. lt would be a question of fact in each case "whether there is so much personal benefit, intellectual or professional, to the members of the society or body of persons as to be incapable of being disregarded". It is this criterion which has to be applied in the present case and if we do so, it is clear that the dominant or primary purpose of the assessee was to promote commerce and trade in Art Silk Yarn, law Silk, Cotton Yarn, Art Silk Cloth, Silk Cloth and Cotton Cloth as set out in sub clause (a) of clause (3) of the Memorandum and the objects specified in sub clauses (b) to (e) of clause (3) were merely incidental to the carrying out of this dominant or primary purpose. The objects set out in sub clauses (b) to (e) of clause (3) were, in fact, in the nature of powers conferred upon the assessee. for the purpose of securing the fulfillment of the dominant or primary purpose. The Revenue, it may be conceded, is right in contending that these objects or powers in sub clauses (b) to (e) or clause (3) would benefit the members of the assessee, but this benefit would be incidental in carrying out the main or primary purpose forming the basis of incorporation of the assessee. If, therefore, the dominant or primary purpose of the assessee was charitable, the subsidiary objects set out in sub clauses 94 (b) to (e) of clause (3) would not militate against its charitable character and the purpose of the assessee would not be any the less charitable. Now having regard to the decision of this Court in Commissioner of Income tax vs Andhra Chamber of Commerce (supra), there can be no doubt that the dominant or primary purpose to promote commerce and trade in Art Silk Yarn, Raw Silk, Cotton Yarn, Art Silk Cloth, Silk Cloth and Cotton Cloth fell within the category of advancement of an object of general public utility. It is true that according to the decision of the Judicial Committee of the Privy Council in All India Spinners Association vs Commissioner of Income tax, the words "advancement of any other object of general public utility" would exclude objects of private gain, but this requirement was also satisfied in the case of the assessee, because the object of private profit was eliminated by the recognition of the assessee under section 25 of the and clauses 5 and 10 of its Memorandum. It must, therefore, be held that the income and property of the assessee were held under a legal obligation for the purpose of advancement of an object of general public utility within the meaning of section 2 clause (15) . But the question still remains whether this primary purpose of the assessee, namely, to promote commerce and trade in Art Silk ; Yarn, Raw Silk, Cotton Yarn, Art Silk Cloth, Silk Cloth, and Cotton Cloth could be said to be "not involving the carrying on of any activity for profit." This question arises on the terms of section 2 clause (15) which gives an inclusive definition of "charitable purpose". It provides that "charitable purpose" includes "relief of the poor, education, medical relief and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. " It is now well settled as a result of the decision of this Court in M/s. Dharamdipti vs Commissioner of Income tax that the words "not involving the carrying on of any activity for profit" qualify or govern only the last head of charitable purpose and not the earlier three heads. Where therefore the purpose of a trust or institution is relief of the poor, education or medical relief, the requirement of the definition of "charitable purpose" would be fully satisfied, even if an activity for profit is carried on in the course of the actual carrying out of the primary purpose of the trust or institution. But if the purpose of the trust or institution is such that it cannot be regarded as covered by the heads of "relief of the poor, 95 education and medical relief", but its claim to be a charitable purpose rests only on the last head "advancement of any other object of general public utility", then the question would straight arise whether the purpose of the trust or institution involves the carrying on of any activity for profit. The last head of "charitable purpose" thus requires for its applicability, fulfillment of two conditions (i) the purpose of the trust or institution must be advancement of an object of general public utility; and (ii) that purpose must not involve the carrying on of any activity for profit. The first condition does not present any difficulty and, as we have already pointed out above, it is fulfilled in the present case, because the primary purpose of the assessee, namely, promotion of commerce and trade in Art Silk Yarn, Raw Silk Cotton Yarn, Art Silk Cloth, Silk Cloth and Cotton Cloth is clearly advancement of an object of general public utility. But the real difficulty arises when we turn to consider the applicability of the second condition. What do the words "not involving the carrying on of any activity for profit" mean and what is the nature of the limitation they imply, so far as the purpose of advancement of an object of general public utility is concerned ? It would be convenient at this stage to refer briefly to the legislative history of the definition of "charitable purpose in the Income tax law of this country, as that would help us to understand the true meaning and import of the words "not involving the carrying on of any activity for profit". These restrictive words, it may be noted, were not to be found in the definition of "charitable purpose" given in sub section (3) of section 4 of the Indian Income tax Act, 1922 and they were added for the first time when the present Act was enacted. What were the reasons which impelled the legislature to add these words of limitation in the definition of "charitable purpose" is a matter to which we shall presently advert. but before we do so, we may usefully take a look at the definition of "charitable purpose" in Section 4 sub section (3) of the Act of 1922. There, "Charitable purpose" was defined as including "relief of the poor, education, medical relief and the advancement of any other object of general public utility" without the additive words "not involving the carrying on of any activity for profit". Now it is interesting to compare this definition of "charitable purpose" with the concept of "charity" under English Law. The English Law of charity has grown round the Statute of Elizabeth, the Preamble to which contained a list of purpose regarded as worthy of protection as being charitable. These purposes have from an early stage been regarded merely as examples and have through the centuries been considered as guide 96 posts for the courts in the differing circumstances of a developing and fast changing civilization and economy. Whenever a question has arisen whether a particular purpose is charitable, the test has always been whether it is or is not within the spirit and intendment of the Preamble to the Elizabeth Statute. The law has been developed by analogy upon analogy and it is to be found in the large case of case law that has been built up by the courts in over the years. The result is that the concept of charity in English Law is as vague and undefined as it is wide and elastic and every time there has to be a search for analogy from the Preamble to the Statute of Elizabeth or from decided cases. An early attempt to simplify this problem by a classification under main heads was made by Sir Samuel Romilly when he tried to subsume charitable purposes under four heads in the following summary submitted by him in the course of arguments in Morice vs Bishop of Durham "relief of the indigent, the advancement of learning, the advancement of religion and the advancement of objects of general public utility". This classification was adopted in substance by Lord Macnaghten in his classic list of charitable purposes in Special Commissioners vs Pemsel where the learned Law Lord pointed out that charity in its legal sense comprises four principal divisions: trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion and trusts for other purposes beneficial to the community not falling under any of the preceding heads. " It will be noticed that the first head inn the definition of "charitable purpose" both in the Act of 1922 and in the pursuant Act is taken from the summary of Sir Samuel Romilly; the second from the classification of Lord Macnaghten after omitting the word "advancement"; the third is a new head not to be found either in the summary of Sir Samuel Romilly or in the classification of Lord Macnaghten while the fourth is drawn from the last head in the summary of Sir Samuel Romilly. The definition of "charitable purpose" in Indian Law thus goes much further than the definition of charity t be derived from the English cases, because it specifically includes medical relief and embraces all objects of general public utility. In English Law it is not enough that a purpose falls within one of the four divisions of charity set out in Lord Macnaghten 's classification. It must also be within the spirit and intendment of the Preamble to the Statute of Elizabeth if it is to be regarded as charitable. There is no such limitation so far as Indian Law is concerned even if a purpose is not within the spirit and intendment 97 of the Preamble to the Statute of Elizabeth, it would be charitable if it falls within the definition of "charitable purpose" given in the Statute. Every object of general public utility would, therefore, be charitable under the Indian Law, subject only to the condition imposed by the restrictive words "not involving the carrying on of any activity for profit" added in the present Act. It is on account of this basic difference between the Indian and English law of charity that Lord Wright uttered a word of caution in All India Spinners ' Association vs Commissioner of Income tax (supra) against blind adherence to English decisions on the subject. The definition of "charitable purpose" in the Indian Statute must be construed according to the language used there and against the background of Indian life. The English decision may be referred to for help or guidance but they cannot be regarded as having any binding authority on the interpretation of the definition in the Indian Act. With these prefatory observations, we may now turn to examine the crucial words "not involving the carrying on of any activity for profit". One question of semantics that was posed before us was and that is a question which we must first resolve before we can arrive at the true meaning and effect of these words whether these words qualify "advancement" or "object of general public utility". What is it that must not involve the carrying on of any activity for profit in order to satisfy the requirement of the definition; "advancement" or "object of general public utility ? The Revenue contended that it was the former and urged that whatever be the object of general public utility, its 'advancement ' or achievement must not involve the carrying on of any activity for profit, or in other words, no activity for profit must be carried on for the purpose of achieving or attaining the object of general public utility. The argument was that if the means to achieve or carry out the object of general public utility involve the carrying on of any activity for profit, the purpose of the trust or institution, though falling within the description "any other object of general public utility" would not be a charitable purpose and the income from business would not be exempt from tax. Now, if this argument is right it would not be possible for a charitable trust or institution whose purpose is promotion of an object of general public utility to carry on any activity for profit at all. Not only would it be precluded from carrying on a business in the course of the actual carrying out of the primary purpose of the trust or institution, out it would also be unable to carry on any business even though the business is held under trust or legal obligation to 98 apply its income wholly to the charitable purpose or is carried on by the trust or institution by way of investment of its monies for the purpose of earning profit which, under the terms of its constitution, is applicable solely for feeding the charitable purpose. The consequence would be that even if a business is carried on by a trust or institution for the purpose of accomplishing or carrying out an object of general public utility and the income from such business is applicable only for achieving that object, the purpose of the trust or institution would cease to be charitable and not only income from such business but also income derived from other sources would lose the exemption. This would indeed be a far reaching consequence but we do not think that such a consequence was intended to be brought about by the legislature when it introduced the words 'not involving the carrying on of any activity for profit" in section 2 clause (15). Our reasons for saying so are as follows: It is clear on a plain natural construction of the language used by the Legislature that the ten crucial words "not involving the carrying on of any activity for profit" go with "object of general public utility" and not with "advancement". It is the object of general public utility which must not involve the carrying on of any activity for profit and not its advancement or attainment. What is inhibited by these last ten words is the linking of activity for profit with the object of general utility and not its linking with the accomplishment or carrying out of the object. It is not necessary that the accomplishment of the object or the means to carry out the object should not involve an activity for profit. That is not the mandate of the newly added words. What these words require that The object should not involve the carrying on of any activity for profit. The emphasis is on the object of general public utility and not on its accomplishment or attainment. The decisions of the Kerala and Andhra Pradesh High Courts in Commissioner of Income tax vs Cochin Chamber of Commerce and Industry and Andhra Pradesh State Road Transport Corporation vs Commissioner of Income tax in our opinion lay down the correct interpretation of the last ten words, in section 2 clause (15). The true meaning of these last ten words is that when the purpose of a trust or institution is the advancement of an object of general public utility, it is that object of general public utility and not its accomplishment or carrying out which must not ll involve the carrying on of any activity for profit. 99 It is true that the consequences of a suggested construction cannot alter the meaning of a statutory provision where such meaning is plain and unambiguous, but they can certainly help to fix its meaning in case of doubt or ambiguity. Let us examine that would be the consequence of the construction contended for on behalf of the Revenue. If the construction put forward on behalf of the Revenue were accepted, then, as already pointed out above, no trust or institution whose purpose is promotion of an object of general public utility, would be able to carry on any business, even though such business is held under trust or legal obligation to apply its income wholly to the charitable purpose or is carried on by the trust or institution for the purpose of earning profit to be utilised exclusively for feeding the charitable purpose. If any such business is carried on, the purpose of the trust or institution would cease to be charitable and not only the income from such business but the entire income of the trust or institution from whatever source derived, would lose the tax exemption. The result would be that no trust or institution established for promotion of an object of general public utility would be able to engage in business for fear that it might lose the tax exemption altogether and a major source of income for promoting objects of general public utility would be dried up. It is difficult to believe that the legislature could have intended to bring about a result so drastic in its consequence. If the intention of the legislature were to prohibit a trust or institution established for promotion of an object of general public utility from carrying on any activity for profit, it would have provided in the clearest terms that not such trust or institution shall carry on any activity for profit, instead of using involved and obscure language giving rise to linguistic problems and promoting interpretative litigation. The legislature would have used language leaving no doubt as to what was intended and not left its intention to be gathered by doubtful implication from an amendment made in the definition clause and that too in language far from clear. Moreover, another consequence of the construction convassed on behalf of the Revenue would be that section 11 sub section (4) would be rendered wholly superfluous and meaningless. Section 11 sub section (4) declares that for the purpose of section 11 'property held under trust" shall include a business undertaking and, therefore, a business can also be held under trust for a charitable purpose and where it is so held, its income would be exempt from tax, provided of course, the other requisite conditions for exemption are satisfied. It may be pointed out that section 11 sub section (4) where it provides that a 100 business may also be properly held under trust, does not bring about any change in the law, because even prior to the enactment of that provision, it was held by the Judicial Committee of the Privy Council in the Tribune 's case that property in the corresponding section 4(3) (i) of the Act of 1922 included business and this principle was affirmed by the pronouncements of this Court in J. K. Trust vs Commissioner of Income Tax and Commissioner of Income Tax vs Krishna Warrier. (3) Section 11 sub section (4) merely gave statutory recognition to this principle. Now section 13(1) (bb), introduced in the Act 1961 with effect from 1st April, 1977, provides that in the case of a charitable trust or institution for the relief of the poor, education or medical relief which carries on any business, income derived from such business would not be exempt from tax unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution. Where therefore, there is a charitable trust or institution falling within any of the first three categories of charitable purpose set out in section 2 clause (15) and it carries on business which is held by it under trust for its charitable purpose, income from such business would not be exempt by reason of section 13(1)(bb). Section 11 sub section (4) would, therefore, have no application in case of a charitable trust or institution falling within any of the first three heads of 'charitable purpose '. Similarly, on the construction contended for on behalf of the Revenue, it would have no applicability also in case of a charitable trust or institution falling under the last head of 'charitable purpose ' because according to the contention of the Revenue, even if a business is held under trust by a charitable trust or institution for promotion of an object of general public utility, income from such business would not be exempt since the purpose would cease to be charitable. The construction contended for on behalf of the Revenue would thus, have the effect of rendering section 11 sub section (4) totally redundant after the enactment of sec. 13(1)(bb). We do not think, we can accept such a construction which renders a provision of the Act superfluous and reduces it to silence. If there is one rule of interpretation more well settled than any other, it is that if the language of a statutory provision is ambiguous and capable of two constructions, that construction must be adopted which will give meaning and effect to the other provisions of the enactment rather than that which will give none. The construction which we are placing of section 2 clause (15) leaves a certain area o '; operation to section 11 sub section (4) notwithstanding the enactment of section 101 13(i) (bb) and we must, therefore, in any event prefer that construction to the one submitted on behalf of the Revenue. We must, however, refer to the decision of this Court in Indian Chamber of Commerce vs Commissioner of Income tax because that is the decision on which the strongest reliance was placed on behalf of the Revenue. The question which arose for decision in that case n was whether income derived by the Indian Chamber or Commerce from arbitration fees levied by the Chamber, fees collected for issuing certificates of origin and share of profit for issue of certificates of weighment and measurement was exempt from tax under section 11 read with section 2 clause (15) of the Act. The argument of the Indian Chamber of Commerce (hereinafter referred as the assessee) was that its objects were primarily promotional and protective of Indian trade interests and other allied service operations and they fell within the broad sweep of the expression "advancement of any other object of general public utility" and its purpose was, therefore, charitable within the meaning of section 2 clause (15) and its income was exempt from tax under section 11. The Revenue, on the other hand, contended that though the objects of the assessee were covered by the expression "advancement of any other object of general public utility" the activities of the assessee which yielded income were carried on for profit and the advancement of accomplishment of these objects of the assessee, therefore, involved carrying on of activities for profit and hence the purpose could not be said to be charitable and the income from these activisms could not be held to be exempt from tax. These rival contentions raised the same question of interpretation of section 2 clause (15), which has arisen in the present case. Krishna Iyer, J. speaking on behalf of the Court lamented the obscurity and complexity of the language employed in section 2 clause (15) a sentiment with which we completely agree and after referring, to the history of the provision the learned Judge proceeded to explain what according to him was the true interpretation of the last concluding words in section 2 clause (15). The learned Judge said: "So viewed, an institution which carries out charitable purposes out of income "derived from property held under trust wholly for charitable purposes" may still forfeit the claim to exemption in respect of such takings or incomes as may come to it from pursuing any activity for profit. Notwithstanding the possibility of obscurity and of dual meanings when the emphasis is shifted from "advancement" to "object" used in section 2(15), we are clear in our minds that by the 102 new definition the benefit of exclusion from total income is taken away wherein accomplishing a charitable purpose the institution engages itself in activities for profit. The Calcutta decisions are right in linking activities for profit with advancement of the object. If you want immunity from taxation, your means of fulfilling charitable purposes, must be unsullied by profit making ventures. The advancement of the object of general public utility must not involve the carrying on of any activity for profit. If it does, you forfeit. The Kerala decisions fall into the fallacy of emphasizing the linkage between the objects of public utility and the activity carried on. According to that view, whatever the activity, if it is inter wined with, wrapped in or entangled with the object of charitable purpose even if profit results, therefrom, the immunity from taxation is still available. This will result in absurd conclusions. Let us take this very case of a chamber of commerce which strives to promote the general interests of the trading community. If it runs certain special types of services for the benefit of manufacturers and charges remuneration from them, it is undoubtedly an activity which, if carried on by private agencies, would be taxable. Why should the . Chamber be granted exemption for making income by methods which in the hands of other people would have been exigible to tax ? This would and up in the conclusion that a chamber of commerce may run a printing press, advertisement business, market exploration activity or even export promotion business and levy huge sums from its customers whether they are members of the organisation or not and still claim a blanket exemption from tax on the score that the objects cf general public utility which it has set for itself implied these activities even though profits or surpluses may arise therefrom. Therefore, the emphasis is not on the object of public utility and the carrying on of related activity for profit. On the other hand, if in the advancement of these objects the chamber resorts to carrying on of activities for profit, then necessarily section 2(15) cannot confer cover. The advancement of charitable objects must not involve profit making activities. That is the mandate of the new amendment". It will thus be seen that Krishna Iyer, J. accepted the contention of the Revenue that the means of accomplishing or carrying out an object of general public utility must not involve the carrying on of any activity for profit or to use the words of the learned Judge "must be unsullied 103 by profit making ventures" and even if a business is carried on by n A trust or institution for earning profit to be applied wholly for an object of general public utility, the trust or institution would forfeit the claim for exemption from tax. The view taken by him was that the benefit of the exemption would be taken away where in accomplishing or carrying out an object of general public utility, the trust or institution engages itself in activity for profit or in other words, the trust or institution should not resort to carrying on of an activity for profit for the purpose of accomplishment or attainment of the object of general public utility. This view clearly supports the construction canvassed on behalf of the Revenue for our acceptance, but, with the greatest respect to the learned Judges who decided the Indian Chamber of Commerce case, we think, for reasons already discussed, that this view is incorrect and we cannot accept the same. We have already examined the language of section 2 clause (15) and pointed out how the plain natural meaning of the words used by the Legislature in that definitional clause does not accord with the contention of the Revenue. We have said enough on the subject and nothing more need be said about it. It is enough to point out that in a subsequent decision in Commissioner of Income tax vs Dharmodayan Company which came by way of an appeal from the judgment of the Kerala High Court, this Court itself has, in effect and substance, departed from this view and adopted the same construction which has commended itself to us. The question which arose in this case was whether the income from business of conducting kurries carried on by the assessee was exempt from tax. The contention of the Revenue was that since the assessee was an institution established for promoting an object of general public utility and this purpose was sought to be achieved out of the income of the business of conducting kurries, the last concluding words of section 2 clause (15) were attracted and the income of the assessee was disentitled to exemption from tax. This contention was, however, rejected by the Kerala High Court which took the view that the business of conducting Kurries was held under trust to apply its income for the charitable purpose of the assessee and was rot carried on as a matter of advancement of that charitable purpose and hence it was not possible to say that the purpose of the assessee involved the carrying on of an activity for profit so as to attract the mischief of the last few words in section 2 clause (15). Krishna Iyer, J., in the Indian Chamber of Commerce case, while discussing the judgment of the Kerala High Court in the Dharmodayan case, observed, consistently with the interpretation placed by him on the last concluding words in section 2 clause (15), that the decision 104 of the Kerala High Court in this case proceeded on a wrong test and impliedly, therefore, was incorrectly decided. But this court while disposing of the appeal from the decision of the Kerala High Court differed from the view taken by Krishna Iyer, J. and upheld the Judgment of the Kerala High Court. This Court pointed out that the facts of Dharmodayan case were not before Krishna Iyer, J. and that the test applied by Kerala High Court was held by him to be wrong on the assumption that the case fell under the last clause of section 2 clause (15) but, in fact, this assumption was invalid, as Dharmodayan case was not one falling under the last part of the definitional clause. The finding of the Kerala High Court was that the business of conducting kurries was a business held under trust for applying its income to the charitable purpose and it was not carried on as a matter of advancement of the primary purpose of the trust or in the course of carrying out such purpose and it could not, therefore, be said that the primary purpose of the trust involved the carrying on of an activity for profit within the meaning of the last concluding words in section 2 clause (15). This Court thus held in no uncertain terms that if a business is held under trust or legal obligation to apply its income for promotion of an object of general public utility or it is carried on for the purpose of earning profit to be utilised exclusively for carrying out such charitable purpose, the last concluding words in section 2 clause (15) would have no application and they would not deprive the trust or institution of its charitable character. What these last concluding words require is not that the trust or institution whose purpose is advancement of an object of general public utility should not carry on any activity for profit at all but that the purpose of the trust or institution should not involve the carrying on of any activity for profit. So long as the purpose does not involve the carrying on of any activity for profit, the requirement of the definition would be net and it is immaterial how the monies for achieving or implementing such purpose ' are found, whether by carrying on an activity for profit or not. We may point out that even in Sole Trustees Lokshikshan Trust vs Commissioner of Income Tax, a decision which, as we shall presently point out, does not commend itself to us on another point, the same interpretation has been accepted by this Court. We must then proceed to consider what is the meaning of the requirement that where the purpose of a trust or institution is advancement of an object of general public utility, such purpose must not involve the carrying on of any activity for profit. The question that is necessary to be asked for this purpose is as to when can the purpose of a trust or institution be said to involve the carrying on of any activity 105 for profit. The word "involve" according to the Sherter Oxford Dictionary "to enwrap in anything, to enfold or envelop; to contain or imply". The activity for profit must, therefore, be interwined or wrapped up with or implied in the purpose of the trust or institution or in other words it must be an integral part of such purpose. But the question again is what to do we understand by these verbal labels or formulae what is it precisely that they mean ? Now there are Two possible ways of looking at this problem of construction. One interpretation is that according to the definition what is necessary is that the purpose must be of such a nature that it involves the carrying on of any activity for profit in the sense that it cannot be achieved without carrying on an activity for profit. On this view, if the purpose can be achieved without the trust or institution engaging itself in an activity for profit, it cannot be said that the purpose involves the carrying on of an activity for profit. Take for example a case where a trust or institution is established for promotion of sports without setting out any specific mode by which this purpose is intended to be achieved. Now obviously promotion of sports can be achieved by organising cricket matches on free admission or no profit no loss basis and equally it can be achieved by organising cricket matches with the predominant object of earning profit. Can it be said in such a case that the purpose of the trust or institution does not involve the carrying on of an activity for profit, because promotion of sports can be done without engaging in an activity for profit. If this interpretation were correct, it would be the easiest thing for a trust or institution not to, mention in its constitution as to how the purpose for which it is established shall be carried out and then engage itself in an activity for profit in the course of actually carrying out of such purpose and thereby avoid liability to tax. That would be too narrow an interpretation which would defeat the object of introducing the words "not in the carrying on of any activity for profit". We cannot accept such a construction which emasculates these last concluding words and renders them meaningless and ineffectual. The other interpretation is to see whether the purpose of the Trust or institution in fact involves the carrying on of an activity for profit or in other words whether an activity for profit is actually carried on as an integral part of the purpose or to use the words of Chandrachud, J. as he then was in Dharmodayan case, "as a matter of advancement of the purpose". There must be and activity for profit and it must be involved in carrying out the purpose of the trust or institution or to put it differently, it must be carried on in order to advance the purpose or in the course of carrying out the purpose of the trust or institution. It is then that the inhibition of the 8 868SCI/79 106 exclusionary clause would be attracted. This appears to us to be a more plausible construction which gives meaning and effect to the last concluding words added by the legislature and we prefer to accept it. Of course, there is one qualification which must be mentioned here and it is that if the constitution of a trust or institution expressly provides that the purpose shall be carried out by engaging in an activity which has a predominant profit motive, as, for example, where the purpose is specifically stated to be promotion of sports by holding cricket matches on commercial lines with a view to making profit, there would be no scope for controversy, because the purpose would, on the face of it, involve carrying on of an activity for profit and it would be non charitable even though no activity for profit is actually carried on or, in the example given, no cricket matches are in fact organised. The next question that arises is as to what is the meaning of the expression "activity for profit". Every trust or institution must have a purpose for which it is established and every purpose must for its accomplishment involve the carrying on of an activity. The activity must however, be for profit in order to attract the exclusionary clause and the question therefore is when can an activity be said to be one for profit? The answer to the question obviously depends on the correct connotation of the proposition "for". This proposition has many shades of meaning but when used with the active participle of a verb it means "for the purpose of" and connotes the end with reference to which something is done. It is not therefore enough that as a matter of fact an activity results in profit but it must we carried on with the object of earning profit. Profit making must be the end to which the activity must be directed or in other words, the predominant object of the activity must be making of profit. Where the activity is not pervaded by profit motive but is carried on primarily for serving the charitable purpose, it would not be correct to describe it as an activity for profit. But where, on the other hand, an activity is carried on with the predominant object of earning profit, it would be an activity for profit, though it may be carried on in advancement a of the charitable purpose of the trust or institution. Where an activity is carried on as a matter of advancement of the charitable purpose or for the purpose of carrying out the charitable purpose, it would not be incorrect to say as a matter of plain English grammar that the charitable purpose involves the carrying on of such activity, but the predominant object of such activity must be to subserve the charitable purpose and not to earn profit. The charitable purpose should not be submerged by the profit making motive; the latter should not masquerade under the guise of the former. The purpose the 107 trust, as pointed out by one of us (Pathak, J.) in M/s Dharmodipti vs Commissioner of Income Tax, Kerala (supra) must be "essentially charitable in nature" and it must not be a cover for carrying on an activity which has profit making as its predominant object. This interpretation of the exclusionary clause in section 2 clause (15) derives considerable support from the speech made by the Finance Minister while introducing that provision. The Finance Minister explained the reason for introducing this exclusionary clause in the following words; 'The definition of "charitable purpose" in that clause is at present so widely worded that it can be taken advantage of even by commercial concerns which, while ostensibly severing a public purpose, get fully paid for the benefits provided by them namely, the newspaper industry which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general knowledge of the public. In order to prevent the misuse of this definition in such cases, the Select Committee felt that the 1 words "not involving the carrying on of any activity for profit" should be added to the definition. It is obvious that the exclusionary clause was added with a view to over coming the decision of the Privy in the Tribune cases where it was held that the object of supplying the community with an organ of educated public option by publication of a newspaper was an object of general public utility and hence charitable in character, even though the activity of publication of the newspaper was carried on commercial lines with the object of earning profit. The publication of the newspaper was an activity engaged in by the trust for the purpose of carrying out its charitable purpose and on the facts it was clearly an activity which had profit making as its predominant object, but even so it was held by the Judicial Committee that since the purpose served was an object of general public utility, it was a charitable purpose. It is clear from the speech of the Finance Minister that it was with a view to setting at naught this decision that the exclusionary clause was added in the definition of 'charitable purpose '. The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit making is the predominant object of the activity, the purpose, though an object of general public utility, would cease to be a charitable purpose. But where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose merely because 108 some profit arises from the activity. The exclusion any clause does not require that the activity must be carried on in such a manner that it does not result in any profit. It would indeed be difficult for persons in charge, of a trust or institution to so carry on the activity that the expenditure balances the income and there is not resulting profit. That would not only be difficult of practical realisation but would also reflect unsound principle of management. We therefore, agree with Beg. J. when he said in Sole Trustee, Lok Sikshana Trust case (supra) that "if the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on charity." The learned Judge also added that the restrictive condition "that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit making is rot the real object" (emphasis supplied). We wholly endorse these observations. The application of this test may be illustrated by taking a simple example. Suppose the Gandhi Peace Foundation which has been established for propagation of Gandhian thought and philosophy, which would admittedly be an object of general public utility, undertakes publication of a monthly journal for the purpose of carrying out charitable object and charges a small price which is more than the cost of the publication and leaves a little profit, would it deprive the Gandhi Peace Foundation of its charitable character ? The pricing of the monthly journal would undoubtedly be made in such a manner that it leases some profit for the Gandhi Peace Foundation, as, indeed, would be done any prudent and wise management, but that cannot have the effect of polluting the charitable character of the purpose, because the predominant object of the activity of publication of the monthly journal would be to carry out the charitable purpose by propagating Gandhian thought and philosophy and not to make profit or in other words, profit making would not be the driving force behind this activity. But it is possible that in a given case the degree or extent of profit making may be of such a nature as to reasonable lead lo the interference that the real object of the activity is profit making and not serving the charitable purpose. If, for example, in the illustration given by us, it is found that the publication of the monthly journal is carried on wholly on commercial lines and the pricing of the monthly journal is made on the same basis on which it would be made by a commercial organisation leaving a large margin of profit. 109 it might be difficult to resist the inference that the activity of publication of the journal is carried on for profit and the purpose is non charitable. We may take by way of illustration another example given by Krishna Iyer, J. in the Indian Chamber of Commerce case where a blood bank collects blood on payment and supplies blood for a higher price on commercial basis. Undoubtedly, in such a case, the blood bank would be serving an object of general public utility but since it advances the charitable object by sale of blood as an activity carried on with the object of making profit, it would be difficult to call its purpose charitable. Ordinarily there should be no difficulty in determining whether the predominant object of an activity is advancement of a charitable purpose or profit making. But cases arc round to arise in practice which may be on the border line and in such cases the solution or the problem whether the purpose is charitable or not may involve much refinement and present real difficulty. There is, however, one comment which is necessary to be made whilst we are on this point and that arises out of certain observations made by this Court in Sole Trustee Lok Sikshana Trust case (supra) as well as Indian Chamber of Commerce case. It was said by Khanna, J. in Sole Trustee Lok Sikshana Trust cases; ". . . . . if the activity of a trust consists of carrying on a business and there are no restrictions on its making profit, the court would be well justified in assuming in the absence of some indication to the contrary that the object of the trust involves the carrying on of an activity for profit. " And to the same effect, observed Krishna Iyer, J. in the Indian Chamber of Commerce case when he said: "An undertaking for a business organisation is ordinarily assumed for profit unless expressly or by necessary implication or by development surrounding circumstances the making of profit stands loudly negatived a pragmatic condition, written or unwritten proved by a prescription of profits or by long years of invariable practices or spirit from some strong surrounding circumstances indicative of anti profit motivation such a condition will nullify for charitable purpose. " Now we entirely agree with the learned Judges who decided these two cases that activity involved in carrying out the charitable purpose must not be motivated by a profit objective but it must be undertaken for the purpose or advancement or carrying out of the charitable purpose. 110 But we find it difficult to accept their thesis that whenever an activity is carried on which yields profit, the inference must necessarily be drawn, in the absence of some indication to the contrary, that the activity is for profit and the charitable purpose involves the carrying on of an activity for profit. We do not think the Court would be Justified in drawing any such inference merely because the activity results in profit. It is in our opinion not at all necessary that there must be a provision in the constitution of the trust or institution that the activity shall be carried on profit no loss basis or that profit shall be prescribed. Even if there is no such express provision, the nature of the charitable purpose, the manner in which the activity for advancing the charitable purpose is being carried on and the surrounding circumstances may clearly indicate that the activity is not propelled by a dominant profit motive. What is necessary to be considered is whether having regard to all the facts and circumstances of the case, the dominant object of the activity is profit making or carrying out a charitable purpose. If it is the former, the purpose. would not be a charitable purpose, but, if it is the latter, the charitable character of the purpose would not be lost. If we apply this test ill the present case, it is clear that the activity of obtaining licences for import of foreign yarn and quotas for purchase of indigenous yarn, which was carried on by the assessee, was k not an activity for profit. The predominant object of this activity was promotion of commerce and trade in Art Silk Yarn, Raw Silk Cotton Yarn, Art Silk Cloth, Silk Cloth and Cotton Cloth, which was clearly an object of general public utility an(l profit was merely a bye product which resulted incidentally in the process of carrying out the charitable purpose. It is significant to note that the aSsessee was a Company recognised by the Central Government under Section 25 of the and under its Memorandum of Association, the profit arising from any activity carried on by the assssee was liable to be applied solely and exclusively for the promotion of trade and commerce in various commodities which we have mentioned above and no part of such profit could be distributed amongst the members in any form or under any guise. The profit of the assessee could be utilised only for the purpose of feeding this charitable purpose and the dominant and real object of the activity of the assessee being the advancement of the charitable purpose, the mere fact that the activity yielded profit did not alter the charitable character of the assessee. We are or the view that the Tribunal was right in taking the view that the purpose for which the assessee was established was a charitable purpose within the meaning of section 2 clause (15) and 111 the income of the assessee was exempt from tax under sec. The A question referred to us in each of these references must, therefore, be answered in favour of the assessee and against the Revenue. The Revenue will pay the costs of the assessee in two sets; one in one Reference Case No. 1A/73 and the other in Reference Cases Nos. 10 14 of 1975. PATHAK, J. To the judgment prepared by my learned brother Bhagwati, I propose to add a separate judgment, Persuaded by the considerable importance of the question which arises and because of a somewhat different perspective in which the point appears to me. The controversy in these references centres on the true interpretation of the words "not involving the carrying on of any activity for profit" in the definition of the expression "charitable purpose" by section 2(15) of the Income Tax Act, 1961. The preceding enactment, the Indian Income Tax Act, 1922 provided, by section 4(3)(i), for the exclusion from the total income of an assessee of any income derived from property held under trust or other legal obligation wholly for charitable purposes. The words "charitable purpose" were defined as including "relief of the poor, education, medical relief and the advancement of any other object of general public utility. " The terms in which the benefit was conferred were not sufficient, it appears, to provide against its misuse by a certain class of tax payer. Advantage was taken of the judicial construction given by the courts to the content of the provision. As long ago as l 939, the Privy Council had in The Trustees of the `Tribune '(1) held that the object of a trust of supplying the public with an organ of educated public opinion constituted an object of general public utility and was a charitable object. It was found that the newspaper and press had not been established for the private profit of the testator or any other individual. The circumstance that the purpose of the trust envisaged a commercial activity, the newspaper charging its readers and advertises at ordinary commercial rates, was held not to detract from the conclusion that it was an object of general public utility. While enacting the Income Tax Act, 1961, Parliament added a new dimension to the definition of "charitable purpose". A restrictive clause has been inserted, and section 2(15) of the Act defines "charitable purpose" as including "relief of the poor, education, medical relief, and the advancement of ally other object of general public utility y not 112 involving the carrying on of any activity for profit. " The Finance Minister explained in Parliament: "The other objective of the Select Committee, limiting the exemption only to trusts and institutions whose object is a genuine charitable purpose has been achieved by amending the definition in clause 2(15). The definition of 'charitable purpose ' in that clause is at present so widely worded that it can be taken advantage of even by commercial concerns which, while ostensibly serving a public purpose, get fully paid for the benefits provided by them, namely, the newspaper industry, which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general knowledge of the public. In order to prevent the misuse of this definition in such cases, the Select Committee felt that the words 'not involving the carrying on of any activity for profit ' should be added to the definition. 1) The new scheme, besides redefining "charitable purpose", added a second safeguard directed to protecting the grant of the tax benefit at another point. A new set of provisions controlled the utilisation of the accumulated income derived from the charitable trust or institution. Section 11 of the Act, in its material provisions, as originally framed declared: "(1) Subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income (a) income derived from property held under trust wholly for charitable. purposes, to the extent to which such income is applied to such purposes in India; and, where any such income is accumulated for application to such purposes in India, to the extent to which the income so accumulated is not in excess of twenty five per cent of the income from the property or rupees ten thousand, whichever is higher; (b) income derived from property held under trust in part only for such purposes, the trust having been created before the commencement of this Act, to the extent to which such income is applied to such purposes in India; and where any such income is finally set apart for application to such purpose in India, to the extent to which the income so set 113 apart is not in excess of twenty five per cent, of the income. A from the property held under trust in part; (c). . . . . (2) Where the persons in receipt of the income have complied with the following conditions, the restriction specified in clause (a) or clause (b) of sub section (1) as respects accumulation or setting apart shall not apply for the period during which the said conditions remain complied with (a) such persons have, by no ice in writing given to the Income tax officer in the prescribed manner, specified the purpose for which the income is being accumulated or set apart and the period for which the income is to be accumulated or set apart, which shall in no case exceed ten years; (b) the money so accumulated or set apart is invested in any Government security as defined in clause (2) of section 2 of the (XVIII of 1944), or in any other security which may be approved by the Central Government in this behalf. (3) Any income referred to in sub section (1) or sub section (2) as is applied to purposes other than charitable . . . as aforesaid or ceases to be accumulated or set apart for application thereto or is not utilised for the purpose for which it is so accumulated in the year immediately following the expiry of the period allowed in this behalf shall be deemed to be the income of such person of the previous year in which it is so applied, or ceases to be so accumulated or so set apart or, as the case may be, of the previous year immediately following the expiry of the period aforesaid." Further restrictions were imposed by section 12A and section 13. Section 13 barred the exemption in the case of a trust for charitable purposes or a charitable institution, created or established after the commencement of the Act, if the trust or institution was created or established for the benefit of any particular religious community or caste. The exemption was also barred, subject to certain modifications, if any part of the income, or any property of such trust or institution, was M used or applied for the benefit of the author of the trust or founder of the institution or of a person who had made a substantial contribu 114 tion to such trust or institution or of a relative of such author, founder or contributor. The net of restrictive provisions in relations to the utilisation of the income of the trust or institution was tightened still further by successive amendments to the Act. It was relaxed in one particular, that to earn the exemption the money accumulated or set apart could alternatively be deposited in a Post office Savings Bank account or a banking company to which the Banking Regulation Act, 194 applies, or a banking co operative society, or was deposited with a financial corporation providing long, term finance for industrial development in India and approved by the Central Government for the purposes of section 36(1)(viii). A notable amendment, inserted as cl. (bb) in section 13(1), provided that the exclusion of the income derived from any business carried on by a charitable trust or institution for the relief of the poor, education or medical relief, was not permissible unless "the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution. " This amendment, brought in with effect from April 1, 1977, was pertinent to the first three heads set forth in the definition of "charitable purpose" and affected the operation of section 11 with reference to that part of the definition. Simultaneously, cl. (d) was also inserted in section 13 (l) which, operating subject to cl. (bb), insisted that to earn the exemption on income the funds of the charitable trust or institution should be invested o deposited in the forms or modes specified in section 13(5). The scheme embodied in the statute protected the tax benefit from misuse by reference to two principle vantage points, (a) a cautiously worded definition of "charitable purpose", which intended that trusts created and institutions established for purposes not "charitable within that definition should not be entitled to the benefit, and (b) provisions which carefully control the application of the accumulated income flowing from the property held under trust or owned by the institution. The first relates to the very purpose of the trust or institution, the second to the manner in which the resulting income is employed. We are concerned in these references with the former. an(l it is therefore necessary to avoid resting the construction of section 2(15) on considerations pertinent to the latter. While construing the definition of ' 'charitable purpose" in section 2(15), it is imperative to remember that what we are considering is a definition. It is a definition and nothing more. The operative provision is enacted elsewhere in the Act. Viewed in that light, the meaning of the definition is capable of clearer resolution. 115 Section 2(15) says that "charitable purpose" includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. The first three heads of "charitable purpose" are defined in specific and clearly disclosed terms. Relief of the poor, education and medical relief. The fourth head is described generally as a residuary head (although that description appears inapt to what finds place in an "inclusive" definition). Now, it is important to note that the purpose described is "the advancement of any other object of general public utility. ". The object is not the purpose. The advancement of the object is the purpose. Harking back to the first three heads of charitable purpose, the definition defines purpose in terms of an activity. When Sir Samuel Romilly, in the course of his argument in Morice vs Bishop of Durham(l) summarised the main heads of charity, they included "relief of the indigent, the advancement of learning, the advancement of religion, and the advancement of objects of general public utility." Note the sense of action, of something to be done in relation to an object. When Lord Macnaghten adopted the classification of charitable purposes in Special Comrs. vs Pemsel(2), he spoke of "trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community not falling under any of the preceding heads." In the Indian law, the relief of poverty and the advancement of education were embodied as "relief of the poor" and "education". Medical relief was added. And for the fourth head, with which we are concerned, the language, an echo of Sir Samuel Romilly 's classification, referred to "the advancement of any other object of general public utility. ". It will be at once evident that the word "object" cannot by itself connote an activity. It represents a goal towards which, or in relation to which, an activity is propelled. The element of activity is embodied in the word "advancement". If "charitable purpose" is defined in terms of an activity, that is to say, the advancement of an object, the restrictive clause "not involving the carrying on of any activity for profit", which is also descriptive of an activity, must necessarily relate to "the advancement of an object. ". I am of opinion, therefore, that the restrictive clause must be read with "the advancement of any other object of general public utility" and not with "the object of general public utility. En passant, it may be observed that much confusion can be avoided if in the context of the fourth head the purpose of the trust or institution is referred to as the "purpose" and 116 not as the "object" of the trust or institution, because the purpose there is defined as "the advancement of an object '. It being clear then that the charitable purpose is the advancement of the object, and that the advancement must not involve carrying on 13 of an activity for profit, I proceed to the next step. The words "activity for profit" should, I think, be taken as descriptive of the nature of the activity. It is an activity of a kind intended to yield profit. It is a profit making activity. That it may not actually yield profit during any period does not deny its true nature. Conversely if profit has resulted from an activity, that does not, without anything more, classify it as an "activity for profit". Therefore, for a purpose to fall under the fourth head of "charitable purpose", it must constitute the, advancement of an object of general public utility in which the activity of advancement must not involve a profit making activity. The word "involving" in the restrictive clause is not without significance. An activity is involved in the advancement of an object when it is enwrapped or enveloped in the activity of advancement. In another case, it may be interwoven into the activity of advancement, so that the resulting activity has a dual nature or is twin faceted. Since we are concerned with the definition af "charitable purpose", and the definition defines in its entirety a "purpose" only it will be more appropriate tc, speak of the purpose of profit making being enwrapped or enveloped in the purpose of the advancement of an object of general public utility or, in the other kind of case, the purpose of profit making being interwoven into the purpose of the advancement of that object giving rise to a purpose of possessing a dual nature or twin facets. Now, section 2(15) clearly says that to constitute a "charitable purpose", the purpose of profit making must be excluded. In my opinion the requirement is satisfied where there is either a total absence of the purpose of profit making or it is so insignificant compared to the purpose of advancement of the object of general public utility that the dominating role of the latter renders the former unworthy of account. If the profit making purpose holds a dominating role or even constitutes all equal component with the purpose of advancement of the object of general public utility, then clearly the definition in section 2(15) is not satisfied. When applying section 11, it is open to the tax authority in an appropriate case to pierce the veil of what is proclaimed on the surface by the document constituting the trust or establishing the institution, and enter into an ascertainment of the true purpose of the trust or institution. The true purpose must be genuinely and essentially charitable. 117 Now, the definition of a purpose is a thing apart from the mode or method employed for carrying out the purpose. Yet the nature of the purpose controls in some degree the mode which is open for carrying it out. If the purpose is charitable in reality, the mode adopted must be one which is directed to carrying out the charitable purpose. It would include, in my opinion, a business engaged in for carrying out the charitable purpose of the trust or institution. The carrying on of such a business does not detract from the purpose which permeates it, the end result of the business activity being the effectuation of the charitable purpose. business activity carried on not with a view to carrying out the charitable purpose of the trust but which is related to a non charitable purpose or constitutes an end in itself falls outside the scope of the trust, and indeed may betray the fact that the real purpose of the trust is not essentially charitable If it is a business entered into for working out the purpose of the trust or institution, that is to say, in the course of, and with a view to, the realisation of the charitable purpose, the income therefore will be entitled to exemption under section 11. In this connection, it is appropriate to note that s 11(4) specifically defines "property held under trust" as including a business undertaking. Moreover, when it was found that judicial decisions had held the restrictive clause in section 2(15) to control the fourth head only, and not also the first three heads in the definition, Parliament attempted to secure its original intent by enacting cl. (bb) in section 13(1). The two provisions represent the mode of finding finance for working out the purpose of the trust or institution, by deriving income from the corpus of the trust property and also from an activity carried on in the course of the actual carrying out of the purpose of the trust or institution. At this stage, it will be appropriate to point out that the question whether a trust is created or an institution is established for a charitable purpose falls to be determined by reference to the real purpose of the trust or the institution and not by the circumstance that the income derived can be measured by standards usually applicable to a commercial activity. The quantum of income is no test in itself. It may be the result of an activity permissible under a truly charitable purpose for, as has been observed, a profitable activity in working out the charitable purpose is not excluded. I am unable to agree, with respect, with all that has fallen from H. R. Khanna and A. C. Gupta, JJ. in Sole Trustee, Loka Shikshana Trust vs Commissioner of Income tax, Mysore that the terms of the trust must impose restrictions on making profits otherwise the purpose of the trust must be regarded 118 as involving the carrying on of a profit making activity. On the contrary, 1 find myself in agreement with Beg, J. to the extent that he says, in the same case, that it is the genuineness of the purpose, that it is truly charitable, which determines the issue. It seems necessary to me that a distinction must constantly be maintained between what is merely a definition of "charitable purpose" and the powers conferred for working out or fulfilling that purpose. While the purpose and the powers must correlate, they cannot be identified with each other. Reference may, of course, be made to the nature and width of the powers as evidence of the charitable or non charitable nature of the purpose. For the same reason, I a.m compelled, with respect, to hold that the observations of Krishna Iyer, J. speaking for the Court in Indian Chamber of Commerce vs Commissioner of Income tax, West Bengal ll(1) do not accord with what I believe to be a true construction of section 2(15). If that decision can be justified, it can be only on the basis that in the opinion of the court the true purpose of the trust or institution was not essentially charitable. I am unable to accept the proposition that if the purpose is truly charitable,, the attainment of the purpose must rigorously exclude any activity for profit. I am also unable to endorse the position that by permitting, the trust or institution to carry on an activity which brings in profit, although that activity is carried on in the course of the working out of the purpose of the trust or institution, "business men have a high road to tax avoidance". It was apparently not brought to the notice of the learned judges that a carefully enacted scheme has been incorporated in the Act which closely controls the utilisation of the trust income, and that the tax exemption is conditional on the observance of the statutory conditions stipulated in that schedule. on the facts of the present reference s which are set out in the judgment prepared by my brother Bhagwati, I have no hesitation in holding that the purpose of the respondent company falls within the definition of section 2(15) of the Income Tax Act, 1961. Sub clause (a) of clause 3 of the Memorandum of Association declares that the purpose for which the company has been established is "to promote commerce and trade in Art Silk Yarn, Raw Silk, Cotton Yarn, Art Silk Cloth, Silk Cloth and Cotton Cloth. " The promotion of commerce and trade has been held by this Court in Commissioner of Income Tax vs Andhra Chamber of Commerce(2) to be an object of general public utility, and there is nothing to show that, viewed as the "purpose" for which the company was incorporated, the sub clause involves the 119 carrying on of any activity for profit. The remaining sub clauses enumerate the powers for which it has been constituted. Having regard to the interpretation placed by me on the words defining the Fourth head of "charitable purpose" in section 2(15) of the Act, I answer the question referred in each of the references in the affirmative, in favour of the assessee and against the Revenue. The Revenue will pay the costs of the assessee in two sets, one in Tax Reference Case No. lA of 1973 and the other in Tax Reference Case Nos. 10 to 14 of 1975. SEN J. I have had the advantage of reading the judgment prepared by my learned brother Bhagwati J. I regret my inability to share the views expressed by him as to the construction of the expression 'charitable purpose" as defined in section 2(15) of the Income tax Act, 1961. I am of the opinion that the two decisions in Sole Trustee, Loka Shikshana Trust vs C.I.T. (1) and Indian Chamber of Commerce vs C.I.T.(2) lay down the correct law and still hold good. In the definition of "charitable purpose", contained in section 2(15) of the Act of 1961, the words "not involving the carrying on of any activity for profit", which did not find place in the Act of 1922, qualify only the fourth head of charitable purpose viz., "any other object of general public utility", and not any of the first three heads. The definition of "charitable purpose" in section 2(15) is in these terms: "2(15) 'charitable purpose ' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit;" It has brought about radical changes in the system of taxation of income and profits of charities, with particular reference to 'objects of general public utility ' to prevent tax evasion, by diversion of business profits to charities. After the experience gained in the 39 years that followed the enactment of the Act of 1922, it came to be realised that many activities for profit were not subject to tax on income merely because they could be regarded as objects of general public utility. What was amiss under the Act of 1922 was not the idea of giving income tax relief in respect of charity, but undue width of the range of what ranks as a charity for that purpose. It is the Vagueness of the expression "any other object of general public utility 120 "that impelled Parliament to insert the restrictive words "not involving the carrying on of any activity for profit". It is not permissible for the Court to whittle down the plain language of the section. "It would be contrary to all rules of construction", in the words of Khanna J., speaking for himself and Gupta J. in Loka Shikshana Trust "to ignore the impact of the newly added words 'not involving the carrying on of any activity for profit ' and to construe the definition as if the newly added words were either not there or were intended to be otiose and redundant, i.e., as qualifying and affirming the position under the Act of 1922". Such a construction would, I am afraid, frustrate the very object of the legislation The section is self explanatory. The relative simplicity of the language brings out the necessary legislative intent to counter act tax advantages resulting from so called 'charities in camouflage '. No distinction had been made by the Act of 1922 between the well known charities of relief to the poor, education and medical relief on the one hand and charities resulting from the advancement of any other object of general public utility, on the other hand. But such a distinction has been introduced by the definition of the term "charitable purpose" in section 2(15) though the definition is an inclusive one. The restriction is that the advancement of objects of general public utility should not involve the carrying on of any activity for profit. If it involved any such activity, the charity will fail outside the definition of charitable purpose in section 2(15). This change has radically altered the law and whenever the advancement of an object of general public utility involved an activity for profit that object will cease to be a charitable purpose. So, in such cases, the income from the activity for profit cannot be exempted from tax under section 11 of the Act. The object of this addition of the restrictive words "not involving the carrying on of any activity for profit." was to clearly overcome the decision in In re The Trustees of the Tribune(1), All India spinners ' Association vs C.I.T.(2) and J.K. Trust vs C.l. T.(8) All these cases arose under section 4(3) (i) of the Act of 1922, which did not include the words "not involving the carrying on of any activity for profit". and they are no longer good law. There is a distinction between "a business held under trust. ' and "a business carried on by or on behalf of the trust". Section 11(1) exempts income derived from property held under trust wholly for 121 charitable or religious purposes, to the extent to which such income is applied to such purposes in India. Section 11(4) includes within the "property held under trust" a business undertaking so held. Therefore, income from a business undertaking held under a trust for a charitable purpose is exempt under section 11 ( 1 ) . There is, therefore, no statutory bar or restriction to earn exemption in respect of income derived from a business undertaking, if such business undertaking is held under a trust for a charitable purpose. That 'property ' ill section 11(1) includes business has been well established not only by the decisions of the Privy Council dealing with the corresponding provision in section 4(3) (i) of the Act of 1922 in Tribunes Trustees (supra) and Spinners Association (supra) but also by the two decisions of this Court in C.I.T. vs Radhaswami Satsang Sabha(1) and C.I.T. vs P. Krishna Warrier(2). The first essential condition for exemption under section 11(1) is that the 'property ' from which the income is derived must be held under trust or other legal obligation. Section 11(4) gives a statutory recognition of the law laid down by this Court in Radhaswami Satsang Sabha namely that business is property and if a business is held in trust wholly for a charitable purpose, the income therefrom will be exempt under section 11(1). As already stated above, the Act of 1961 now defines 'charitable purpose ' to include 'relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit '. It is accepted that the words 'not involving the carrying on of any activity for profit ' qualify only the fourth head of charitable purpose stated in the definition viz. 'any other object of general public utility '. Consequently, it is clear that in cases falling under the first three heads of charitable purpose stated in the definition imposes no ban on the carrying on of any activity for profit. The restrictive words 'not involving the carrying on of any activity for profit ' were deliberately introduced in the definition of charitable purpose in section 2(15) to cut down the wide ambit of the fourth head viz. 'any other object of general public utility ' as a measure to check avoidance of tax. Indubitably, engagement in activity for profit by religious or charitable trusts provides scope for manipulation for tax avoidance. The Parliament, however, thought that it will not be desirable to ban an activity for profit which arises in the pursuit of the primary object of the trust created with the object of relief the poor, education or medical relief. 122 A study made by the Department of Company Affairs of 75 trusts, of which 62 were charitable, showed that the business houses creating the trusts had mostly appropriated the trust funds for their own businesses. Considering the problem of tax avoidance through formation of charitable and religious trusts, the Public Accounts Committee in a recent report( ') observed that 'while trusts fulfil a laudable social objective, they have also been used as a device to avoid tax '. The Committee also took note of the fact that out of 45 trusts connected with industrial houses and having a corpus of Rs. 24.11 crores, the investments by 32 trusts in concerns connected with the industrial houses were SO per cent or more of their funds. In some cases, it was noticed that the investment in such concerns amounted to as much as 90 per cent of the funds of the trusts. In other words, the big business houses established their own 'charitable trusts ' because they find it financially advantageous to filter money through them. In the United States of America, despite several provisions for preventing misuse of funds of public trusts, taxpayers still find ways and means to use charity as a cover for tax avoidance. In his revealing study 'The Rich and the Super Rich ' Ferdinand Lundberg(2) observes: ". foundations can do anything that is financially possible, without any sort of public supervision or regulation. In the sphere of finance, name it and they can do it, tax free. " He goes on to add: "It is mainly because of the Protean utility of the foundation, particularly in the evasion of taxes, that nearly everyone in the community of wealth has come now to share the original insight of only a few such as the pioneering Carnegie and Rockfeller. " Avoidance of tax through the media of charitable trusts is a malady prevalent in other countries as well. The British Royal Commission on Taxation of Profits and Income observed that the vagueness of definition of 'charity ', or more precisely the absence of a definition, has enabled very substantial benefits of exemptions to be claimed by activities which, in extreme cases, had no real connection with the idea of charity at all. The Royal Commission on Taxation for Canada also took note of this problem in its report and 123 recommended that charity should pay income tax on business A income. There has been a sharp conflict of opinion upon the construction of the crucial words 'not involving the carrying on of any activity for profit ', qualifying the fourth head of charity, 'advancement of any other object of general public utility '. According to the Kerala High Court in C.I.T. vs Indian Chamber of Commerce,(2) C.I.T. vs Cochin Chamber of Commerce (3) and C.I.T. vs Charmodayan & Co. ,(4) it was observed that in order to take an object of general public utility outside the scope of the definition, that object must involve carrying on of any activity for profit. The Calcutta High Court in C.I.T. vs Indian Chamber of Commerce(5) took a view different from that of the Kerala High Court observing that the fourth head of charity 'the advancement of any other object of general public utility not involving the carrying on of any activity for profit ' plainly indicates that it is not the object of general public utility which would involve the carrying on of any activity for profit, but the advancement of that object. Otherwise, the Calcutta High Court held that 'it would lead to a contradictory situation and be destructive of the limitation which the Parliament in its wisdom thought it necessary to impose. It further observed that that was the only way to avoid a conflict between sections 11 and 2(15), specially with the provisions of section 11(1)(a) and 11(4). This Court resolved the conflict in Loka Shikshana Trust (supra) and Indian Chamber of Commerce (supra) by holding that the words 'not involving the carrying on of any activity for profit ' govern the word 'advancement ' and not the words 'object of general public utility ' and observed that if the advancement or attainment of the object involves an activity for profit, tax exemption would not be available. F The words 'charity ' and charitable purpose ' must be construed in their legal or technical sense which is different from their popular meaning. Charity is a word of art, of precise and technical meaning and an exhaustive definition of charity in the legal sense has never been attempted. The cases in which the question of charity has come before the Courts are legion, and not all the decisions, even of the highest authority, are easy to reconcile. 124 In England, the locus classicus on the subject is the decision of Lord Macnaghten in Commissioner for Special Purposes of Income tax vs Pemsel decided in the House of Lords. In that case Lord Macnaghten, after explaining that no doubt the popular meanings of the words 'charity ' and 'charitable ' do not coincide with their legal meaning, but when used in such expressions as 'charitable uses ' 'charitable trust ' or 'charitable purposes ', the word has a well settled technical meaning, observed: " 'Charity ' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads. " The fourth head of this classification has been the subject of much discussion in cases in England. In some of them it has been held to be synonymous with 'philanthropic ', while in others it has been given a narrower meaning. In Re. Macduff(2) it was held that while a charitable purpose may well be a purpose of general utility, all purposes of general utility cannot be deemed to be charitable. It was observed that the words 'public utility ' are so large that they comprehend purposes which are not charitable. This view was affirmed on appeal, and with regard to Pemsel 's case Lord Justice Lindley observed: "I am certain that Lord Macnaghten did not mean to say that every object of public general utility must necessarily be. charitable. Some may be and some may not be. " The fourth head of Lord Macnaghten 's four fold classification is vague because of its generality, I do not think much useful purpose would be served by referring to the other English cases dealing with the subject, or in attempting to reconcile the dicta of eminent Judges contained in some of them. It will be sufficient for our present purposes to say that the Indian Legislature while enacting the Act of 1922 appears to have steered clear of these difficulties by using phraseology which is much wider and more comprehensive than that of Lord Macnaghten 's fourth head of classification. It was in 1896 that Lord Lindley and other Law Lords held in Macduff 's case that the words "general public utility were very wide in their scope, that every object of public utility was not necessarily a charitable purpose ', and yet 22 years later in 1918. 125 when the Explanation to section 4 (3) of the Income tax Act, 1922 was placed on the statute book, the Indian Legislature while practically adopting Lord Macnaghten 's phraseology in enumerating the first three heads of the definition, described the fourth as 'advancement of other objects of general public utility, without any restriction or qualification whatever. The Courts, therefore, felt it their duty to give full effect to the plain meaning of the words used in section 4(3) of the Act of 1922. In section 4(3) the Legislature deliberately refrained from qualifying in any way the words "any other object of general public utility", and there was nothing in the context which indicated that it was intended to give them a restricted meaning. It was, therefore, not open to the Courts or other authorities whose duty it was to interpret the section, to cut down the plain and comprehensive meaning of the words used, simply because they would give to the expression "charitable purpose" a meaning which is hot in accord with popular notions. In re. The Trustees of the Tribune (supra) the Privy Council held that the object of supplying State with an organ of educated public opinion was an object of public utility, and it was a charitable object, in the absence of a motive of private profit, even though the newspaper charged its readers and advertisers at ordinary commercial rates. The case established that under the Act of 1922, the charitable institutions which carried out trade at a profit was exempt in respect of the profits, provided the institution was held on a charitable trust and the profits were and could be applied only to the charitable purposes of the institution. The result of this and other similar decisions was that a charitable institution could escape the payment of tax on income earned from business provided it could be shown that the money was spent for an "object of general public utility". Exemption from income tax of the income of charitable trusts provides opportunities for tax avoidance. The fact that some of charitable trusts are created for the purpose of evasion or avoidance of tax is virtually endemic, an unmitigated well known evil. The question of tax avoidance through formation of charitable and religious trusts has been engaging the attention of the Government for quite some time. Before coming into force of the Income tax Act, 1961, section 4(3) (i) of the Act of 1922 governed exemption of income of charitable trusts. H The definition of the expression "charitable purpose" in section 2 (15) of the Act is different from the definition of that expression in s.4 126 (3) (i) of the Act of 1922. The words "not involving the carrying on of any activity for profit" were inserted in the Act of 1961 at the Select Committee stage. The Committee was of the opinion that the definition of "charitable purpose" needed a change to eliminate the tax avoidance device in built in it. It first considered the insertion of the words "other than the furtherance of an undertaking for commercial profit", after the sentence "any other object of general public utility", but subsequently this was changed to "not involving the carrying on of any activity for profit" and thus the changed definition of "charitable purpose" in section 2 (15) of the present Act was brought in. The main object was to take away the element of 'business ' from 'charity '. The then Finance Minister while introducing the Bill had said. "The definition of 'charitable purpose ', in that clause is at present so widely worded that it can be taken advantage of even by commercial concerns which, while ostensibly serving a public purpose, get fully paid from the benefits provided by them, namely, the newspaper industry which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general know ledge of the public. In order to prevent the misuse of this definition in such cases, the Select Committee felt that the a; words 'not involving the carrying on of any activity for profit ' should be added to the definition. " The words "not involving the carrying on of any activity for profit have changed the picture completely, and the decision of the Privy Council in Trustees of the Tribune (supra) and Spinners ' Association (supra) as well as that of this Court in Radhaswami Satsang Sabha (supra), J. K. Trust vs C.I.T. and C.I.T. vs Andhra Chamber of Commerce(o) are now of academic interest only. Parliament by introducing these words have not only curtailed the scope of the fourth head of charity, 'advancement of any other object of general public utility ', but also left little room for the tax payers to manoeuvre the diversion of their business profits to charity. Even assuming that the dominant object is the promotion or advancement of any other object of general public utility ', if it involves any activity for profit, i.e., any business or commercial activity, then it ceases to be a "charitable purpose" within the meaning of section 2 (15). In that event, the profits derived from such business 127 are not liable to exemption under section 11 (1) read with section 2 (15). The A concept of 'profits to feed the charity ' is also of no avail. That is because the concept of profits to feed the charity ' can only arise under the first three heads of 'charitable purpose ' as defined in section 2 (15) of the Act, i.e., "relief of the poor ", "education" and "medical relief", but they are not germane insofar as the fourth head is concerned, viz., "the advancement of any other object of general public utility". If the fulfillment of an object of general public utility is dependent upon any activity for profit, it ceases to be a charitable purpose. This Court in Loka Shikshana Trust (supra) and Indian Chamber of Commerce (supra) has had occasion to deal with the legal significance of the words "not involving the carrying on of any activity for profit" added to the definition of "charitable purpose as contained in s 2 (15) of the Act. After referring to the Finance Minister 's speech it observed that the amended provision was directed at a change of law as it was declared by the Privy Council in Trustees of the Tribune (supra). The case of Loka Shikshana Trust first brought out the legislative intent. This was a typical case of an abuse of the tax exemption given to charitable institutions that brought about a change in the law. It was a case of a trust constituted by a person who appointed himself the sole trustee with absolute discretion and the entire activity of the trust was in fact that of running a wide circulation newspaper. It was claimed that the mere act of printing and publishing and circulating a newspaper was tantamount to carrying out the charitable object of education. By claiming exemption of tax, the trust funds had over the years, swelled from about Rs. 4,000/ to nearly Rs. 2 lakhs. During the assessment year in question, the total receipts of the trust were of the tune of Rs. 22 lakhs. It was entirely a commercial activity and there was not even a semblance of spending any part of the income on the object of education by way of granting scholarships or providing means of education and so on. The Court laid down that if the object of the charitable trust is advancement of any object of general public utility, any income derived by it from any activity for profit, will not be entitled to exemption under section 11 of the Act, having regard to the words "not involving the carrying on of any activity for profit", introduced in the definition of the term 'charitable purpose ' as contained in section 2 (15). Khanna J., speaking for the Court, pointed out that as a result of the addition of the words "not involving the carrying on of any activity for profit", at the end of the definition in section 2(15) of the 128 Act, even if the purpose of the trust is "advancement of any other object of general public utility", it would not be considered to be "charitable purpose" unless it is shown that the advancement of such object does not involve the carrying on of any activity for profit, saying "It is also difficult to subscribe to the view that the newly added words "not involving the carrying on of any activity for profit" merely qualify and affirm what was the position as it obtained under the definition given in the Act of 1922. If the legislature intended that the concept of charitable purpose should be the same under the Act of 1961, as it was in the Act of 1922, there was no necessity for it to add the new words in the definition. The earlier definition did not involve any ambiguity and the position in law was clear and admitted of no doubt after the pronouncement of the Judicial Committee in the cases of Tribune and All India Spinners ' Association. If despite that fact the legislature added new words in the definition of charitable purpose, it would be contrary to all rules of construction to ignore the impact of the newly added words and to so construe the definition as if the newly added words were either not there or were intended to be otiose and redundant. " Beg J., who delivered a separate but concurring judgment, while discussing the scope of section 2 (15), observed: "As a rule, if the terms of the trust permit its operation 'for profit ', they became, prima facie, evidence of a purpose falling outside charity. They would indicate the object of profit making unless and until it is shown that the terms of the trust compel the trustee to utilise the profits of business also for charity. This means that the test introduced by the amendment is: Does the purpose of a trust restrict spending the income of a profitable activity exclusively or primarily upon what is "charity" in law ? If the profits must necessarily feed a charitable purpose, under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly then in the past, the genuineness of the purpose tested by the obligatory created to spend the money exclusively or essentially on 'charity '. li that obligation is there, the income becomes entitled to exemption. That in our opinion, is the most reliable test." 129 These observations of Beg J. were in the nature of an obiter dictum, as on facts he held the trust in that case to be actually engaged in activity for profit. I shall, however, deal with the observations later as they create some difficulty. The matter was put beyond the pale of controversy by the Court in Indian Chamber of Commerce (supra). The assessee was a Chamber of Commerce. Its objects were to promote and protect trade interests and other allied service operations falling within the expression the advancement of any other object of general public utility". The Chamber deriv d income from (i) arbitration fees levied by it, (ii) fees collected for issuing certificates of origin, and (iii) share in the profits made by issuing certificates of weighment and measurement. The question was whether tile activates of the Chamber being activities carried on for profit, in the absence of any restriction in its memorandum and articles of association against the making of profit from such activities the income of the Chamber from those activities was liable to income tax or was exempt from income tax under section 11 read with section 2(15). D Krishna Iyer, J., speaking on behalf of himself, Gupta and Fazal Ali J.T., referred to the legislative history, the evil sought to be remedied, and the speech of the Finance Minister, which gave the "true reason for the remedy", said: "The obvious change as between the old and the new definitions is the exclusionary provision introduced in the last few words. The history which compelled this definitional modification was the abuse. to which the charitable disposition the statute to charitable purposes was subjected, by exploiting businessman. You create a charity, earn exemption from the taxing provision and run big industries virtually enjoying the profits with a seeming veneer of charity, a situation which exsuscitated Parliament and constrained it to engraft a clause deprivatory of the exemption in the institution fulfilling charitable purposes undertook. activities for profit and thus sought to hoodwink the statute. The Finance Minister 's speech in the House explicates the reason for the restrictive condition." (Emphasis supplied) He lamented the legislative obscurity in the definition of charitable purpose in section 2(15) of tho Act but observed that the Court must adopt a construction which advances the legislative intent, stating: "The evil sought to be abolished is thus clear. The inter pretation of the provision must naturally fall in line with the advancement of the object. " 130 The whole object of adding the words "not involving the carrying on of any activity for profit" at the end of the definition of 'charitable purpose ' in section 2(15), in the words of Krishna Iyer J., was: "This expression, defined in section 2(15), is a term of art and embraces object of general public utility. But, under cover of charitable purposes, a crop of camouflaged organisations sprung up. The mask was charitable, but the heart was hunger for tax free profit. When Parliament found this dubious growth of charitable chemelsons, the definition in section 2(15) was altered to suppress the mischief by qualifying the broad object of "general public utility" with the additive "not involving the carrying on of any activity for profit. The core of the dispute before us is whether this intentional addition of a "cut back" clause expels the chamber from the tax exemption zone in respect of the triune profit fetching sub enterprises undertaken by way of service or facility for the trading community." A realistic line of reasoning, according to him, is to interpret 'charitable purpose" in such a manner that 'we do not burke any word ', 'treat any expression as redundant ' or 'miss the accent of the amandatory phrase '. He struck a note of warning regarding the 'possibility of obscurity ' and 'dual meanings ' by shifting of emphasis from 'advancement ' to 'object ' used in section 2(15). The emphasis is not on the object of public utility and the carrying on of related activity for profit. On the other hand, if in the advancement of these objects, the trust resorts to carrying on of activities for profit, then necessarily section 2(15) cannot confer cover. The advancement of charitable objects must not involve profit making activities. That according to him, is the mandate of the new law. In reaching that conclusion he observes: "In our view, ll e ingredients essential to earn freedom from tax are discernible from the definition, if insightfully, actually read against the brooding presence of the evil to be suppressed and the beneficial object to be served. The policy of the statute is to give tax relief for charitable purpose, but what falls outside the page of charitable purpose '? The institution must confine itself to the carrying on of activities which are not for profit. It is not enough if the object be one of general public utility. The attainment of that object shall not involve activities for profit " In conclusion, he sums up the legislative intent, saying: "To sum up, section 2(15) excludes from exemption the carrying on of activities for profit even if they are linked with 131 the objectives of general public utility, because the statute interdicts, for purpose of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit. " The dictionary meaning of the word "involve" is "to envelop, to entangle, to include, to contain, to imply": Shorter oxford Dictionary, 3rd ed., p. 1042. The word "involve" thus contemplates the advancement of the object of general public utility being sought to be achieved by carrying on of an activity for profit. That conclusion is inevitable on a proper analysis of the two decisions. In Loka Shikshana Trust, the object of the trust could not be achieved without carrying on the business of publication of newspapers. In Indian Chamber of Commerce, the income from fees from arbitration or fees for issuing certificates of weighment and measurement, might have been conceived as part of its objects of assisting trade and commerce. If the profit making activity is thus the appointed means of achieving a charitable object of general public utility, then, the profit would be taxable. At p. 803 of the Report, Krishna Iyer J., speaking for the Bench, held that "by the new definition, the benefit of exclusion from the total income is taken away where in accomplishing a charitable purpose the institution engaged itself in activities for profit". A reading of section 2(15) and section 11 together shows that what is frowned upon is an activity for profit by a charity established for advancement of an object of general public utility the course of accomplishing its objects. These being the principles upon which exemption of income derived from property held under trust by an object of general public utility under section ll(l) read with section 2(15) can be claimed, it is clearly inconsistent with them to hold that if the dominant or primary purpose was 'charity ', it was permissible for such an, object of general public utility, to augment its income by engaging in trading or commercial activity. That would be clearly against the whole scheme of the Act. I need hardly say that, if the altered definition of 'charitable purpose ' in section 2(15) were to be applied, according to the well known canons of construction, no such point would for a moment be arguable. There can be no doubt that Parliament wanted to bring about a change in the law to prevent tax avoidance by diversion of business profits to pseudo charities. Surely, it cannot be said that Parliament did not mean what it intended to achieve, by introducing the restrictive words "not involving the carrying on of any activity for profit". It clearly meant to prevent tax free profits from being ploughed back in business. But it is said that the law is different; and the point upon which the case 132 must turn cannot be more distinctly put that was put by Beg J. in his judgment in Loka Shikshana Trust. The observations of Beg J. have given rise to a controversy that the condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit making is not the real object; and that if the terms of the trust permit the carrying on of business activity for profit it would prima facie indicate the object of profit making unless those terms indicate the real object to be charitable by compelling the trustees to utilize the business profit for charity. This is contrary to what Khanna and Gupta JJ. stated. While they observed that 'if the terms of the trust do not impose restrictions on profit making, the court would be well justified in assuming. In the absence of some indication to the contrary, that the object of the trust involved the carrying oil of an activity for profit. To quote again, Beg J. Observed: "If the profits must necessarily feed a charitable purpose, under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust". On the basis of the observations of Beg J. it is, asserted that the test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on 'charity '. It is stated that despite the addition of the words "not involving the carrying on of any activity for profit" in section 2(15) of the Art, there is a distinction between (a) a business being held under trust where profits feed a charity in which case the income of such trust would be wholly exempt, and (b) the carrying on of a business in carrying out what is conceived as a charitable purpose in which case the income may be taxable. It is said that the distinction is fine, but must be kept in view. The so called distinction, in my opinion, is without any basis whatever. It runs counter to the very abject and purpose of the legislation. Under the existing provisions, if the object of purpose of a trust is relief of the poor, education or medical relief, the trust can carry on an activity for profit provided it is in the course of carrying out the primary object of the trust. However, if the object of the trust is advancement of an object of general public utility and it carried on. any activity for profit, it is excluded from the ambit of charitable purpose defined in section 2(15). The distinction is clearly brought out by the provision contained in section 13(1)(bb) inserted by Tax Laws (Amendment) Act. 1975, which provides that in case of a charitable trust or institution for the relief of the poor, education or medical relief, which carries on any business,, any income derived from such business, unless the business is carried on in the course of the actual carrying out of a 133 primary purpose of the trust or institution shall not be excluded from the total income of the previous year. It seems that the attention of Beg J. in Loka Shikshana Trust (supra) was not drawn to the fact that he was dealing with a case falling under the fourth head of charity "advancement of any other object of general public utility", the ambit of which was restricted by the qualifying clause "not involving the carrying on of any activity for profit", aud, therefore, there was no occasion for him to observe, "if the profits must necessarily feed a charitable purpose, under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust". These considerations can only arise under the first three heads of charity viz., 'relier of the poor ', 'education ' and 'medical relief ' In C.I.T. Kerala vs Dharmoddyam Co.,(1) Dharmaposhanam Co. vs C.I.T., Kerala(2) and Dharmadipti vs C.I.T., Kerala(3) the Court had occasion to deal with the definition of 'charitable purpose ' in section 2(15). In Dharmodayam, the finding of the Kerala High Court was that the kuri business was itself held under trust or religious or charitable purpose, and therefore, the Court observed: "lt is a necessary implication of this finding that the business activity was not undertaken by the respondent in order to advance any object of general public utility. It, therefore did not become necessary to enquire whether conducting the kuri business involved the carrying on of my activity for profit, in as much as the income derived by the assessee from the kuries was exempt from tax under section 11(1) (a). " In Dharposhanam, it was held that the income from the, business of conducting, kuries and money lending fell under the residual general head 'any other object of general public utility ' and being carried on or profit could not be regarded as charitable purpose under section 2(15). In Dharmadipti, the Court came to a contrary conclusion because the income from the kuri business was derived from a business held under trust for charitable purposes. In all these cases, there was nonfulfillment of one condition or the other, i.e., either the business was not held under trust or being an object of general public utility was engaged in an activity for profit. With respect, I venture to say that if an object of general public utility is engaged in an activity for profit, it ceases 134 to be a charitable purpose and, therefore, the income is not exempt under 6. 11(i) (a). In case of a trust falling under any of the first three heads of charity, viz., 'relief of the poor ', 'education ' and 'medical relief ' it may engage in any activity for profit, and the profits would not be taxable if they were utilized for the primary object of the trust. In other words, the business carried on by them is incidental or ancillary to the primary object viz., relief of the poor, education and medical relief. To illustrate, a charitable hospital holding buildings on trust may run a nursing home. The profits of the nursing home owned and run by the trust will be exempt under section 11(4), because the business is carried on by the trust in the course of the actual carrying out of the primary purpose of the trust. The concept of 'profits to feed the charity ', therefore, is applicable only to the first three heads of charity and not the fourth. It would be illogical and, indeed, difficult to apply the same consideration to institutions which are established for charitable purposes of any object of general public utility. Any profit making activity linked with an object of general public utility would be taxable. The theory of the dominant or primary object of the trust cannot, therefore, be projected into the fourth head of charity, viz., 'advancement of any other object of general public utility ', so as to make the carrying on of a business activity merely ancillary or incidental to the main object. In fact, if any other view to prevail, it would lead to an alarming result detrimental to the revenue. The whole object of inserting the restrictive words 'not involving the carrying on of any activity for profit ' in the stricter definition of 'charitable purpose ' in section 2(15) to make the range of favoured activity less flexible than it had been hitherto before i.e., to prevent big business houses from siphoning of a substantial portion of their income in the name of charity, would be defeated. The danger of permitting diversion of business profits, which was sought to be prevented by Parliament is but apparent. In my opinion, the restrictive words 'not involving the carrying on of any activity for profit ' in the definition of 'charitable purpose ' in s.2(15) of the Income tax Act, 1961 must be given their due weight. Otherwise, it would have the effect of admitting to the benefits of exemption the fourth indeterminate class viz., objects of general public utility engaged in activity for profit contrary to the plain words of s.2(15). Modern legislation has changed in pattern towards re casting taxes and provisions with very wide language, while at the same time dealing in much more detail with some crees of law. Judges, 135 in part, responding to general trends of law, but also reacting to A the farm of modern tax legislation, must be prepared to take account of the context and purposes of the change brought about.(1) Most Judges, in dealing with tax legislation, have refused to engage in what Megarry J. calls "a bout of speculative judicial legislation" to cut down the wide words of the statute: Inland Revenue Commissioner vs Brown.(2) In Harrison vs Nairn Williamson(3) Goulding J. Observes: "The way I have to approach this pure question of verbal interpretation is, I think, to give the words used by Parliament their ordinary meaning in the English language, and if, consistently with ordinary meaning, there is a choice between two alternative interpretations, then to prefer the construction that maintains a reasonable and consistent scheme of taxation without distorting the language. " Both the Judge 's conclusion, and his reasoning, were adopted expressly in the Court of Appeal, where the Court was exercised by the fact that the taxpayer 's interpretation of the section in question might lead to a most obvious way of tax evasion. This attitude was rejected earlier by Megarry J. in the following comment: 'There is high authority for saying that it scarcely lies in the mouth of the taxpayer who plays with fire to complain of burnt fingers ' Reeves vs Evans Boyce and Northcott Syndicate(4) Lord Justice Sellers in F. section Securities vs I.R.C.(6) also found that "enrichment without any service to the community and without taxation is hard to countenance". Lord Reid in Greeberg vs I.R.C.(6) voices the same concern about the prevailing attitude to tax statutes, saying: "Parliament is very properly determined to prevent this kind of tax evasion, and if the courts find it impossible to give very wide meanings to general phrases the only alter native may be for Parliament to do as some other countries have done and introduce legislation of a more sweeping character. " 136 It is legitimate to look at the state of law prevailing leading to the legislation so as to see what was the mischief at which the Act was directed. This Court has on many occasions taken judicial notice of such matters as the reports of parliamentary committees, and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed. In C.I.T., M.P. & Bhopal vs Sodre Devi(1) the question before the Court was as to the construction of section 16(3) of the Income tax Act, 1922. After finding that the word 'individual ' occurring in the aforesaid sub section was ambiguous, Bhagwati J. observed: "In order to resolve this ambiguity therefore we must of necessity have resort to the state of law before the enactment of the provisions, the mischief and the defect for which the law did not provide; the remedy which the legislature resolved and appointed to cure the defect; and, the true reason for the remedy." The then prevailing law relating to exemption of income of charitable trusts contained several loopholes. The Law Commission in its Twelfth Report felt the need to eliminate the tax avoidance device in built in the definition of 'charitable purpose ' in section 4(3) of the Act of 1922, by insertion of an Explanation to the effect: "Explanation: In this sub section 'property ' does not include 'business '. " The Direct Taxes Administration Enquiry Committee in their report (1958 59) observed as follows: "The existing provisions relating to exemption of the income of charitable trusts under Section 4(3) (i) of the Income tax Act contain certain loopholes which help the formation of pseudo charitable trusts." "Another wide loophole rests in the interpretation of the word 'property ', whereunder a trust could carry on business which had nothing to do with the primary object of the trust itself and still yet exemption in respect of the income from this business. Courts have held that business can also be 'property ', held under trust. Certain amendments in Section 4(3) (i) of the Income tax Act were made through the Indian Income tax (Amendment) Act, 1953 to try to ensure that income of a 'charitable ' business got e exemption only if the business was carried on behalf of a religious and charitable institution and was carried on in 137 the course of implementing a primary purpose of the institution or the work of the business was mainly done by the beneficiaries of the institution. This was done by adding proviso (b) to Section 4(3) (i) of the Indian Income tax Act. That proviso says that the income derived from property held under trust for religious or charitable shall not be exempt and shall consequently be included in the total income." "Courts have, however, taken the view that the above two conditions (in the proviso) for getting exemption apply only where business is carried on behalf of a religious or charitable institution and not where the business itself is held upon trust, and that as such the income of such a business would still be entitled to exemption under the substantive part of Section 4(3) (i) despite nonfulfillment of the conditions set out in the proviso. " Adopting the recommendation of the Select Committee, Parliament inserted the words "not involving the carrying on of any activity for profit" in the definition of the expression 'charitable purpose ' in section 2(15) of the Act. The report of the Public Accounts Committee made a comprehensive study of the problem and indicated the magnitude of avoidance of tax through formation of charitable trusts, and considered whether the words 'not involving the carrying on of any activity for profit ' should be deleted, but recommended against its deletion. The Direct Taxes Enquiry Committee (otherwise know as the Wanchoo Committee) considered the question whether the restriction of trusts in the matter of engaging in activities for profit should be removed and made the following recommendations. "It is in this background that we address ourselves to the question as to whether religious or charitable trusts enjoying tax exemption should be permitted to carry on any activity for profit. Indubitably, engagement in activity for profit by such trusts provides scope for manipulations for tax avoidance. We, however, consider that it will not be desirable to ban an activity for profit which arises in the pursuit of the primary purpose of a trust created with the object of relief of the poor, education or medical relief. For instance, 10 868SCI/79 138 in the case of a trust for vocational training, it would be essential for the trust to carry on its vocation. We, there. fore, recommend that law should be suitably amended to provide that where a trust for the religion of the poor, education or medical relief derives income from any activity for profit, its income would be exempt from income tax only if the said activity for profit is carried on in the course of the actual carrying out of a primary purpose of the institution. We wish to make it abundantly clear that even where a business is settled in trust, the trust should fulfil this condition if it is to enjoy tax exemption in respect of the income from such business. So far as trusts for any other object of general public utility are concerned, pursuit of any activity for profit should continue to render them ineligible for tax exemption. The Direct Taxes Laws Committee in Chapter 2 (Interim Report, December 1977) on charitable trusts considered the question whether the above expression in the definition should be deleted and recommended the deletion of the above expression stating: "We have received a large number of representations on the hardship caused as a result of the total banning of activity for profit so far as trusts having the fourth category objects are concerned. It has been pointed out that activities for ;. profit are essentially fund raising in nature, without which charities cannot exist. We find considerable substance in these representations. We are aware that some trusts have abused the provisions enabling them to carry on business ' I and that, sometimes, expansion or consolidation of business is by itself, sought to be justified as furtherance of charity. such abuses would particularly arise where a business is merely held by a charitable trust as property unconnected with the objects of charity. The remedy, in our opinion, lies in the direction of proper enforcement of the provisions relating to application of trust funds for charitable purposes and not of totally banning all activities for profit. Moreover, it is noticed that charitable trusts generally have objects falling under all the four categories. Very often, a trust has come into difficulties on account of a single object under the fourth category, even though all the important objects fall under the first three categories. We, therefore, 139 recommend deletion of the words "not involving the carrying on of any activity for profit" occurring in section 2(15). " The Government, however, has not accepted the recommendation. I fail to comprehend when the recommendation has not been acted upon by the Government by suitable legislation, how can this Court by a process of judicial construction achieve the same result. Fears expressed at the Bar that this harsh measure enacted by, Parliament has shrivelled and dried up many genuine charities, does not take into account that it had to step in when the tax exemptions available to charitable and religious trusts started being misused for the unworthy purposes of tax avoidance. The law has been so re structured to prevent allergy to taxation masquerading as charity. It cannot be disputed that many business houses have abused the provision relating to exemption from tax by carrying on activities for profit as a means for expansion and consolidation of business, which was sought to be justified as in furtherance of charity, i.e., charity became big business. Now, the law is designed to prevent this misuse of tax exemption in the name of charity. It is not the function of a court of law to give the words a strained and unnatural meaning. It may be that many genuine charitable trusts promoting objects of general public utility are severely affected and are caught in between the two extremes. But this call for a change in the law. I am only reiterating what has been said over and over again in deal with taxing Acts. In Cape Brandy Syndicate vs Inland Revenue Commissioner(l) the principle was formulated and stated by Rowlat J. in his own terse language: "In a taxing Act one has merely to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. one can only look fairly at the language used. " In Inland Revenue Commissioner vs Ross & Coulter( ') Lord Thanketro in describing 'the harsh consequences of a taxing provision ' said: ". If the meaning of the provision is reasonably clear, the courts have no jurisdiction to mitigate such harshness." 140 The judicial attitudes cannot be formed in isolation from Legislative processes, particularly in connection with Tax avoidance provisions. I would, accordingly, answer the references in favour of the Revenue and against the assessee. The Commissioner will be entitled to his costs.

The assessee which was an incorporated company, carried on various activities for promotion of commerce and trade in art silk yarn, art silk cloth and silk cloth. Its other objects were to obtain licences for import of raw material needed by its members, to obtain licences for export of cloth manufactured by its members and to do all other lawful things as are incidental or conducive to the attainment of the objects. Its income and property were to be applied solely for the promotion of its objects and no portion of the income or property was to be paid or transferred directly or indirectly by way of dividend, bonus or profits to its members. In the event of its winding up or dissolution, surplus of assets over liabilities, if any, could not be distributed amongst the members but was liable to be given or transferred to some other company having the same objects as the assessee, to be determined by the members of the assessee or by the High Court which has jurisdiction in the matter. The assessee received income by way of annual subscription from its members (the revenue conceded that this amount was exempt from tax) and commission on the basis of certain percentage of the value of licences for import of foreign yarn and quotas for the purchase of indigenous yarn. The assessee constructed a building out of the amounts received and the rent received from the tenants was an additional source of its income. The assessee 's claim for exemption under section 11(1) of the Income Tax Act was rejected by the Income Tax Officer on the ground that its objects were not charitable within the meaning of section 2(15) of the Act. On the other hand the Appellate Assistant Commissioner held that the assessee 's income was entitled to exemption under section 11 (1) because the activities carried on by the assessee were in fulfillment of the primary purposes which did not involve the carrying on of any activity for profit. This view of the Appellate Assistant Commissioner was affirmed by the Appellate Tribunal in appeal by the revenue. In view of the conflicting decisions amongst different High Courts on the interpretation of the words "not involving the carrying on of any activity for profit" in the definition of charitable purpose in section 2(15) of the 1961 Act the Appellate Tribunal referred to this Court, under section 257 of the Act. 78 the question whether the assessee was entitled to exemption under section 11(1) of the Act. It was contended on behalf of the revenue that if the means to achieve or carry out the object of general public utility involve the carrying on of any activity for profit, the purpose of the trust, though falling within the description "any other object of general public utility", would not be a charitable purpose and the income from business would not be exempt from tax. Dismissing the appeal, ^ HELD: (Per majority Bhagwati, Untwalia and Tulzapurkar, JJ) 1. The contention that the objects of the assessee did not fall within the category of "advancement of any other object of general public utility" and were not charitable within the meaning of section 2(15) in that its members were merely specified individuals who did not constitute a section of the public cannot be allowed to be raised in this reference. In a reference under section 257 of the Income Tax, Act, 1961 the Tribunal is not competent to refer to this Court a question in respect of which there is no conflict of decisions amongst different High Courts nor can this Court travel beyond the particular question of law referred to it by the Tribunal on account of conflict in the decisions of the High Courts. [92 A B] 2. (a) It is well settled that where the main or primary objects are distributive, each and every one of the objects must be charitable in order that the trust of institution may be upheld as a valid charity. But if the primary or dominant purpose of a trust is charitable another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent it from being valid charity. [92 D E] (b) The test which has to be applied is whether the object which is said to be non charitable is the main or primary object of the trust or institution or it is ancillary or incidental to the dominant or primary object which is charitable.[92 F] Mohd. Ibrahim vs Commissioner of Income tax 57 Indian Appeal 260; East India Industries (Madras) Ltd. vs Commissioner of Income tax, [1967]3 SCR 356; Commissioner of Income tax, Madras vs Andhra Chamber of Commerce, 65 ITR 722=[1965] 1 SCR 565, Commissioner of Inland Revenue vs Yorkshire Agricultural Society ; 13 Tax Case. 58; Institution of Civil Engineers vs Commissioner of Inland Revenue ; referred to. In the instant case the income and property of the assessee are held under a legal obligation for the purpose of advancement of an object of general public utility within the meaning of section 2(15) of the Act. The dominant or primary purpose of the assessee is to promote commerce and trade in art silk yarn etc., which is charitable and the other objects are in the nature of powers conferred upon the assessee for the purpose of securing fulfillment of the dominant or primary purpose. They would no doubt benefit the members of the assessee but this benefit would be incidental in carrying out the main or primary purpose of the assessee. If therefore the dominant or primary purpose of the assessee. 79 was charitable the subsidiary objects would not militate against its charitable character and the purpose of the assessee would not be any the less charitable. [93 E G] 3. It is settled law that the words "advancement of any other object of general public utility" would exclude objects of private gain; but this requirement is also satisfied in the present case because the object of private profit is eliminated by the recognition of the assessee under section 25 of the and the objects set out in clauses 5 and 10 of its Memorandum of Association [94 C D] 4. Where the purpose of a trust or institution is relief of the poor, education or medical relief, the requirement of the definition of "charitable purpose" would be fully satisfied even if an activity for profit is carried on in the course of the actual carrying out of the primary purpose of the trust or institution. But if the purpose of the trust or institution is such That it cannot be regarded as covered by the heads of "relief of the poor, education and medical relief" but its claim to be a charitable purpose rests only on the last head "advancement of any other object of general public utility" then it requires, for its applicability, fulfillment of two conditions, namely, (i) the purpose of the trust or institution must be advancement of an object of general public utility; and (ii) the purpose must not involve the carrying on of any activity for profit. [94 G H] M/s. Dharamdipti vs Commissioner of Income Tax, ; , referred to. The words "not involving the carrying on of any activity for profit" qualify or govern only the last head of charitable purpose and not the earlier three heads. [94 G] 6. The meaning of the words "not involving the carrying on of any activity for profit" added in section 2(15) of the 1961 Act is that when the purpose of a trust or institution is the advancement of an object of general public utility it is that object of general public utility and not its accomplishment which must not involve the carrying on of any activity for profit. [94 H] 7. If the argument of the Revenue that if the means to achieve the object of general public utility involve the carrying on of any activity for profit, the purpose of the trust though falling within the description "any other object of general public utility" would not be a charitable purpose and the income from business would not be exempt from tax it right it would not be possible for a charitable trust whose purpose is promotion of an object of general public utility to carry on any activity for profit at all. [97 F H] 8. The consequence would be that even if a business is carried on by a trust or institution for the purpose of accomplishing or carrying out an object of general public utility and the income from such business is applicable only for achieving that object, the purpose of the trust would cease to be charitable and not only income from such business but also income derived from other sources would lose the exemption. Such a far reaching consequence was not intended to be brought about by the legislature when it introduced the words "not involving the carrying on of any activity for profit" in section 2(15). [98 B C] 80 9. What is inhibited by the words "not involving the carrying on of any activity for profit" is the linking of an activity for profit with the object of general public utility and not its linking with the accomplishment or carrying out of the object. It is not necessary that the accomplishment of the object or the means to carry out the object should not involve an activity for profit. That is not the mandate of the newly added words. What these words require is that the object should not involve the carrying on of any activity for profit. The emphasis is on the object of general public utility and not on its accomplishment or attainment. [98 E G] Commissioner of Income tax vs Cochin Chamber of Commerce and Industry, and Andhra Pradesh State Road Transport Corporation vs Commissioner of Income tax, approved. If the intention of the legislature were to prohibit trusts of this nature from carrying on any activity for profit it would have made such a provision in the clearest terms that no such trust or institution shall carry on any activity for profit. [99 E F] 11. Section 13(1)(bb) introduced in the Act with effect from April 1, 1977 provides that in the case of a charitable trust for the relief of the poor, education or medical relief which carries on any business, income derived from such business would not be exempt from tax unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution. Where, therefore, a charitable trust falling within any of the first three categories of charitable purpose set out in section 2(15) carries on business which is held in trust for the charitable purpose, income from such business would not be exempt by reason of section 13(1)(bb) and section 11(4) would, therefore, have no application in the case of a charitable trust falling within any of the first three heads of charitable purpose. Similarly, on the construction contended for by the Revenue it would have no applicability in the case of a charitable trust falling under the last head of charitable purpose, because in such a case income from business would not be exempt since the purpose would cease to be charitable. The construction contended for by Revenue would have the effect of rendering section 11(4) totally redundant after the enactment of section 13(1) (bb). A construction which renders a provision of the Act superfluous and reduces it to silence cannot be accepted. [100 C F] 12. If the language of a statutory provision is ambiguous and is capable of two constructions that construction must be adopted which will give meaning and effect to the other Provisions of the enactment rather than that which will none. [100 G] 13. If a business is held under trust or legal obligation to apply its income for promotion of an object of general public utility or it is carried on for the purpose of earning profit to be utilised exclusively for carrying out such charitable purpose, the last concluding words in section 2(15) would have no application and they would not deprive the trust or institution of its charitable character. What these last concluding words require is not that the trust or institution whose purpose is advancement of an object of general public utility should not carry on any activity for profit at all but that the purpose of the trust or institution should not involve the carrying on of any activity for profit. So long as the purpose does not involve the carrying on of any activity for 81 profit, the requirement of the definition would be met and it is immaterial how the monies for achieving or implementing such purpose are found, whether by carrying on an activity for profit or not. [104 D G] Commissioner of Income tax vs Dharmodayan Company, followed. Indian Chamber of Commerce vs Commissioner of Income tax wrongly decided. The Trustees of the Tribune, ; Commissioner of Income tax vs Krishna Warrier; 53 I.T.R. 176, J.K. Trust vs Commissioner of Income tax and Sole Trustees Lokshikshana Trust vs Commissioner of Income tax referred to. It has therefore to be seen whether the purpose of the trust or institution in fact involves the carrying on of an activity for profit or in other words whether an activity for profit is actually carried on as an integral part of the purpose "as a matter of advancement of the purpose". There e Must be an activity for profit and it must be involved in carrying out the purpose of the trust or institution that is, it must be carrying on in order to advance the purpose or in the course of carrying out the purpose of the trust or institution. It is then that the inhibition of the ex. Exclusionary clause would be attracted. [105 G H] 15. Every trust or institution must have a purpose for which it is established and every purpose must for its accomplishment involve the carrying on of an activity. The activity must be for profit in order to attract the exclusionary clause. [106 D] 16. The preposition "for" in the phrase "activity for profit" has many shades of meaning but when used with the active principle of a verb it means "for the purpose of" and connotes the end with reference to which something is done. [106 E] 17. Where an activity is not pervaded by profit motive but is carried on primarily for serving the charitable purpose, it would not be collect to describe it as an activity for profit. But where an activity is carried on with the predominant object of earning profit, it would be an activity for profit, though it may be carried on in advancement of the charitable purpose of the trust or institution. Where an activity is carried on as a matter of advancement of the charitable purpose, it would not be incorrect to say as a matter of plain English grammar that the charitable purpose involves the carrying on such activity, but the predominant object of such activity must be to subserve the charitable purpose and not to earn profit. [106 F H] Dharamdipti vs Commissioner of Income tax, Kerala, ; referred to. The test to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose m rely because some profit arises 82 from the activity. The exclusionary clause does not require that the activity must be carried on in such a manner that it does not result in any profit. The restrictive condition that the purpose should not involve the carrying on of any activity for profit would he satisfied if profit making is not the real object.[107 G H] 19. (a) The observations in Lok Shikshana Trust and Indian Chamber of Commerce that activity involved in carrying out the charitable purpose must not be motivated by a profit objective but it must be undertaken for the purpose of advancement or carrying out of the charitable purpose are correct. But the further observation that whenever an activity is carried on which yields profit, the inference must necessarily be drawn. in the absence of some indication to the contrary, that the activity is for profit and the charitable purpose involves the carrying on of an activity for profit is not correct. [109 H; li) A Bl (b) It is not necessary that there must be a provision in the constitution of the trust or institution that the activity shall be carried on a "no profit no loss" basis or that the profit shall proscribed. Even if there is no such express provision. the nature of the charitable purpose, the manner in which the activity for advancing the charitable purpose is being carried on, and the surrounding circumstances may clearly indicate that the activity is not propelled by a dominant profit motive. What is necessary to be considered is whether having regard to all the facts and circumstances of the case, the dominant object of the activity is profit making or carrying out a charitable purpose. If it is the former the purpose would not he a charitable purpose but if it is the latter the charitable character of the purpose would not be lost. [110 C D] In the instant case, the activity of obtaining licences for import of foreign yarn and quotas for purchase of indigenous yarn was not an activity for profit. The predominant object of the activity was the promotion of commerce and trade in those commodities which was clearly an object of general public utility and profit was merely a by product which resulted incidentally in the process of carrying out charitable purpose. The assessee 's profit could he utilized only for feeding this charitable purpose. The dominant and real object of the activity being the advancement of the charitable purpose the mere fact that the activity yielded profit did not alter the charitable character of the assessee . Per Pathak J. (concurring) In the scheme under the Income tax Act. 1961 for exemption from income tax of income derived from property held under trust for charitable purposes, two safeguards have been provided. One arises from the limited definition of "charitable purpose" by section 2(15), Income tax Act, 1961. and the other is provided by the controls imposed on the utilisation of accumulated income derived from the charitable trust or institution. The first relates to the very purpose of the trust or institution, the second to the application of the resulting income. In construing what is a "charitable purpose" under section 2(15) of purpose Act, considerations pertinent to the application of the accumulated income should not ordinarily be taken into account. [114 F G] The first three heads of "charitable purpose" in section 2(15) of the Act arc defined in specific terms. namely, relief of the poor, education and medical relief. The fourth head is described generally as a residuary head. The 83 definition of "charitable purpose" with reference to the fourth head shows that the purpose is the "advancement of any other object of general public utility. ". The charitable purpose is not the "object of general public utility", it is the advancement of the object. The definition defines "charitable purpose" in terms of an activity. An object by itself cannot connote an activity. It represents a goal towards which, or in relation to which. an activity is propelled. The element of the activity is embodied in the word "advancement". If "charitable purpose" is defined in terms of an activity, the restrictive clause "not involving the carrying on of any activity for profit" must necessarily relate to "the advancement" of the object contemplated. [115 B C] The words "activity for profit" should be taken as descriptive of the nature of the activity. It is an activity of a kind intended of yield profit. Conversely if profit has resulted from an activity, that has does not, without anything more, classify it as an "activity for profit". [116 B C] The requirement of section 2(15) is satisfied where there is either a total absence of the purpose of profit making or it is so insignificant compared to the purpose of advancement of the object of general public utility that the dominating role of the latter renders the former unworthy of account. If the profit making purpose holds a dominating role or even constitutes an equal component with the purpose of advancement of the object of general public utility, then the definition in section 2(15) is not satisfied. [116 G H] If the purpose is charitable in reality, the mode adopted must be one which is directed to carrying out the charitable purpose. The carrying on of such a business does not detract act from the purpose which permeates it, the end result of the business activity being the effectuation of the charitable purpose. A business activity carried on not with a view to carrying out the charitable purpose of the trust but which is related to a non charitable purpose falls outside the scope of the trust. If it is a business entered into for working out be purpose of the trust or institution with a view to realisation of the charitable purpose, the income therefrom would be entitled to exemption under section 11. Section 11(4) and section 13(1)(bb) represent the mode of finding finance for working out the purpose of the trust or institution by deriving income from the corpus of the trust property and also from an activity carried on in the course of actual carrying out of the purpose or the trust or institution. [117 B E] A distinction must be maintained between what is merely a definition of "charitable purpose" and the powers conferred for working out or fulfilling that purpose. While the purpose and the powers must correlate they cannot be identified with each other. [118 B] In the instant case the purpose of the assessee falls within the definition of section 2(15). The objects of the assessee were to promote commerce and trade, which have been held to be an object of general public utility and, there is nothing to show that the relevant sub clause of the Memorandum of Association involves the carrying on of any activity for profit. The remaining sub clauses enumerate powers for which the company was constituted. [118 G H] The Trustees of the Tribune, , Commissioner of Income tax vs Andhra Chamber of Commerce , referred 84 Sale Trustees, Loka Shikshana Trust vs Commissioner of Income tax, Mysore ; Indian Chamber of Commerce vs Commissioner of Income tax, West Bengal II not approved. Per Sen, J. (dissenting) The two decisions in Sole Trustees Lok Shikshana Trust vs C.I.T. and Indian Chamber of Commerce vs C.I.T. lay down the law correctly and are still good law. [119 D] 1. The words "not involving the carrying on of any activity for profit" occurring in section 2(15) of the Act quality only the fourth head of charitable purpose namely "any other object of general utility" and not the first three heads. [119 E] 2. It is the vagueness of the expression "any other object of general public utility" occurring in section 4(3)(i) of the 1922 Act which impelled Parliament to insert the restrictive word "not involving the carrying on of any activity for profit. ' It is not permissible for the court to whittle down the plain language of the section. It would be contrary to all rules of construction to ignore the impact of the newly added words and to construe the definition as it the newly added words were either not there or were intended to be otiose and redundant. Such a construction would frustrate the very object of the legislation. The relative simplicity of the language brings out the necessary legislative intent to counteract tax advantages resulting from the 'so called charities in camouflage. [119 H; 120 A C] 3 . The restriction introduced by the definition of the term "charitable purpose" in section 2(15) is that the advancement of objects of general public utility should not involve the carrying on of any activity for profit. If it involved any such activity the charity would fall outside the definition. [120 D E] 4. There is no statutory bar to earn exemption in respect of income derived from a business undertaking if such business undertaking is held under a trust for a charitable purpose. The first essential condition for exemption under section 11(1) is that the property from which the income is derived must be held under trust or other legal obligation. Section 11(4) gives a statutory recognition to the principle that the business is property and if a business is held in trust wholly for a charitable purpose, the income therefrom would be exempt under section 11(1) [121 B D] In re. The Trustees of the Tribune ; All India Spinner 's Association vs C.I.T. ; C.I.T. vs P. Krishna Warriar C.I.T. vs Andhra Chamber of Commerce ; J.K. Trust vs C.I.T. referred to. The restrictive words "not involving the carrying on of any activity for profit" were deliberately introduced in the definition to cut down the wide ambit of the fourth head as a measure to check avoidance of tax. Engagement in an activity for profit by religious or charitable trusts provides scope for manipulation for tax evasion. [121 F G] 6 Even assuming that the dominant object of a trust is the promotion or 'advancement of any other object of general public utility, if it involves any activity for profit i.e. any business or commercial activity, then it ceases to be a charitable purpose within the meaning of section 2(15). In that event the profits derived from such business are not liable to exemption under section 11(1) 85 read with section 2(15). The concept of profits to feed the charity is also of no avail. That is because the concept of 'profits to feed the charity ' can only arise under the first three heads of 'charitable purpose ' as defined in section 2(15) of the Act, that is, "relief of the poor" "education" and "medical relief" but they are not germane in so far as the fourth head is concerned. If the fulfillment of an object of general public utility is dependant upon any activity for profit, it ceases to be a charitable purpose. A reading of section 2(15) and section 11 together shows that what is frowned upon is an activity for profit by a charity established for advancement of an object of general public utility in the course of accomplishing its objects. [126 H; 127 A B] 7. It would be clearly inconsistent to hold that if the dominant or primary purpose was 'charity ' it would be permissible for such an object of general public utility to augment its income by engaging in trading or commercial activity. [131 F] 8. If the object of the trust is advancement of an object of general public utility and it carried on an activity for profit, it is excluded from the ambit of charitable purpose defined in section 2(15). The distinction is clearly brought out by the provision contained in section 13(1)(bb) which provides that in case of a charitable trust or institution for the relief of the poor, education or medical relief which carries on any business, any income derived from such business, unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution, shall not be excluded from the total income of the previous year. [132 G H] 9. If the advancement of an object of general public utility involves the carrying on of an activity for profit, it ceases to be a charitable purpose and, therefore, the income is not exempt under section ll(l)(a). In case of a trust falling under any of the first three heads of charity, namely, 'relief of the poor ' 'education ' and 'medical relief ' it may engage in any activity for profit and the profits would not taxable if they were utilized for the primary object of the trust. In other words the business carried on by them is incidental or ancillary to the primary object namely relief of the poor, education and medical relief. The concept of 'profits to feed the charity ' therefore is applicable only to the first three heads of charity and not the fourth. It would be illogical to apply the same consideration to institutions which are established for charitable purposes of any object of general public utility. Any profit making activity linked with an object of general public utility would be taxable. The theory of the dominant or primary object of the trust cannot. therefore, be projected into the fourth head of charity, namely,, 'advancement of any other object of general public utility ' so as to make the carrying on of any business activity merely ancillary or incidental to the main object. [134 A E] 10. The restrictive words 'not involving the carrying on of any activity for profit ' in the definition of "charitable purpose" in section 2(15) must be given their due weight. Otherwise, it would have the effect of admitting to the benefits of ' exemption the fourth in determinate class, namely, objects of general public utility engaged in activity for profit contrary to the plain words of section 2(15). [134 G]

Appeal No. 209 of 1959. Appeal from the judgment and order dated October 5, 1956, of the Patna High Court in Miscellaneous Appeal No. 367 of 1953. L. K. Jha and R. C. Prasad, for the Appellant. M. C. Setalvad, Attorney General for India, N. De and P. K. Mukherjee, for the respondents. April 7. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. This is an appeal against the Judgment of the High Court of Patna in an appeal under the . The appellant is the State of Bihar, and the respondents are a company registered under the Indian Companies Act, doing business as building contractors. They entered into three contracts for the construction of aerodrome, hangarettes, buildings, stores and other works at Ranchi, the first of them being contract No. 21 of 1942 dated November 5, 1942, and the other two being contracts Nos. 6 and 8 dated April 5, 1943. After the above works were completed, disputes arose between the parties over the bills and eventually by an agreement dated February 6, 1948, they were referred to the arbitration of one Col. A. W. section Smith. The arbitrator made his award on June 4, 1948, and sent a copy thereof to the parties. The respondents thereupon filed a petition under sections 17 and 20 of the Indian , for a decree in terms of the award. The appellant filed objections thereto, and the petition was then registered as Title Suit No. 53 of 1951. While this suit was pending, the arbitrator who had meantime left for Hong Kong sent to the court of the Additional Subordinate Judge of 829 Ranchi before whom the suit was pending a copy of the award duly signed by him, for being filed as provided in the Act. Notices were issued by the court under section 14(2) of the Act, and, in answer thereto, the appellant filed an application to set aside the award on various grounds. To this, the respondents filed their reply statement. In view of this application, the respondents did not press their petition tinder sections 17 and 20 of the , which was in consequence dismissed, and the proceedings which commenced with the receipt of the award from the arbitrator were continued as Title Suit No. 53 of 1951. After an elaborate trial the Additional Subordinate Judge, Ranchi, passed a decree in terms of the award except as to a part which he held to be in excess of the claim. The appellant took the matter in appeal to the High Court of Patna which confirmed the decree of the Subordinate Judge but granted a certifi cate under articles 132 and 133(1) of the Constitution, and hence this appeal. Though the controversy between the parties ranged in the courts below over a wide area,, before us, it was restricted to two questions whether there was a valid agreement of reference to arbitration binding on the Government and whether a decree could be passed on the unstamped copy of the award filed in the court. On the first question, the appellant contends that the agreement for reference to arbitration does not comply with the requirements of section 175(3) of the Government of India Act, 1935, which was the Constitutional provision in force at the relevant date, and it is therefore void, that the award passed in proceedings founded thereon is a nullity and that no decree should be passed in terms thereof. Section 175(3) is as follows: "Subject to the provisions of this Act. with, respect to the Federal Railway authority, all contracts made in the exercise of the executive authority of the Federation or of a province shall be expressed to be made by the Governor General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property 830 made in the exercise of that authority shall be executed on behalf of the Governor General or Governor by such persons and in such manner as he may direct or authorise. " Under this section, a contract entered into by the Governor of a Province must satisfy three conditions. It must be expressed to be made by the Governor; it must be executed; and the execution should be by such persons and in such manner as the Governor might direct or authorise. We have now to examine whether the agreement to refer to arbitration dated February 6, 1948, satisfies the above conditions. It expressed to be made between the Governor of Bihar and the respondents. It is also a formal document executed by one Y. K. Lall, Executive, Engineer, Ranchi Division, and by the respondents. So the only point that remains for consideration is whether the Executive Engineer was a person who was directed or authorised by the Governor to execute the agreement in question. The appellant contends that he as not, and relies in support of his contention on a notification dated April 1, 1937, issued by the Government of Bihar. That notification, in so far as it is material, is as follows: "In exercise of the powers conferred by sub section (3) of section 175 of the Government of India Act, 1935, the Governor of Bihar is pleased, in supersession of all existing orders, to direct that the undermentioned classes of deeds, contracts and other instrument may be executed on his behalf as follows: A.In the case of the Public Works Department (subject to any limit fixed by. Departmental orders) 2. All instruments relating to the execution of works of all kinds connected with buildings, bridges, roads, canals, tanks, reservoirs, docks and harbours and embankments, and also instrumets relating By Secretaries to Government, Chief Engineers, Superin tending Engineers, Divisional Officers, Sub divisional Offi cers, Assistant or Assistant Executive 831 to the construction of water Engineers, and the works, sewage works, the n Electric Inspector. erection of machinery, and the working of coal mines. . . . . . . . . 12. All deeds and in By Secretaries and struments relating to any ' Joint Secretaries to matters other than those Government". specified in heads 1 to 11. There was a discussion in the courts below as to whether the present agreement fell within item 2 or item 12. If the agreement could be held to be an instrument relating to the execution of works, it would fall within item 2, and the Executive Engineer would be a person authorised under this notification to enter into this contract, but if it does not fall within that item, it must fall within entry 12, in which case he would not be competent to execute the agreement. Both the courts below have held that the agreement to refer to arbitration was not one relating to execution of works as that had been completed and the dispute related only to payment of the bills, and that further the essential feature of an arbitration agreement was the constitution of a private Tribunal and it could not therefore be brought within item 2 and that accordingly it fell within item 12. But the learned Judges of the High Court were also of the opinion that Y. K Lall, the Executive Engineer had in fact been specifically authorised to execute the arbitration agreement, and that that was sufficient for the purpose of section 175(3). The appellant impugns the correctness of this conclusion and contends that it is not warranted by the record. It becomes, therefore, necessary to refer in some detail to the correspondence bearing on this point. On July 26, 1947, Mr. Murrel, Secretary to the Government, wrote to Col. Smith as follows: "I am directed to say that the Government of Bihar propose to appoint you as Arbitrator for the settlement of a claim put forth by Messrs. Karam Chand Thapar and Brothers Limited in connection with the construction of the Hinoo Aerodrome at Ranchi Job 108 If You agree to undertake the 832 work. . the necessary forms of acceptance of appointment of Arbitrator etc. may please be for warded to this Department for completion by the Government of Bihar and, by the Contractor. " To this, Col. Smith sent a reply agreeing to act as arbitrator. In that letter he also suggested that the contract between the parties might be suitably amended so as to permit arbitration. This is significant, because under cl. 23 of the contract, all disputes between the parties had to be referred to the Superintending Engineer whose decision was to be final, and if that had been amended as suggested, the arbitration clause would have become part of the original contract and there would have been no occasion for the present contention. Referring to the above suggestion for amending the agreement, the Secretary, Mr. Murrel, wrote on September 5, 1947, to Col. Smith that the opinion of the Legal Remembrancer would have to be got. On January 19, 1948, Col. Smith wrote to the Secretary that he was ready to take up his duties as arbitrator and again desired that the contract should be amended so as to provide for arbitration. On January 27, 1948, the Secretary to the Government informed Col. Smith that opinion had been received from the Legal Remembrancer that an agreement for arbitration should be executed in accordance with the provisions of the and that a "draft agreement (copy enclosed) has been drawn up accordingly and steps are being taken to execute it, as quickly as possible" On the same date, the Executive Engineer wrote to the respondents as follows: "It has since been decided by Government to determine your claims in connection with the above through arbitration conducted in accordance with the provisions of the 1 of 1940. You are therefore requested to please attend the Divisional Office immediately to execute necessary agreement for the purpose." Pursuant to this letter, the respondents joined in the execution of the agreement dated February 6, 1948, along with the Executive Engineer for referring the 833 dispute to arbitration. On February 25, 1948 the Secretary informed the arbitrator that the draft agreement had been slightly modified in consultation with the Government Pleader, and he also wrote to the Executive Engineer that certain formal corrections should be made in the agreement and signed by both the parties. And that was done. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed". The subject matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration as part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under section 175(3). It was further argued for the appellant that there being a Government notification of a formal character, 834 we should not travel outside it and find authority in a person who is not authorised thereunder. But section 175(3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference to arbitration. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator ,sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under section 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, tile respondents paid the requisite stamp duty under section 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court, is, what it purports to be, "a certified copy", and that under section 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well settled that the copy of an instrument cannot be validated: That was held in The Rajah of, Bobbili vs Inuganti China Sitaramasani Garu (1), where it was observed: 835 "The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents", Therefore the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof. There cannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the court. This would be an original instrument, and the words, "certified copy" appearing thereon are a mis description and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

The continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such unusual nature as Would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes, and the fact that a non judicial authority had made a report against one set of the claimants is not a reasonable ground for depriving them by legislation of their ordinary rights under the law and prohibiting them from having resort to courts of law for establishing their rights. A nobleman of Hyderabad died in 1936 when it was under the rule of the Nizam, and disputes as to succession arose between his legally married wife and two ladies, Mahboob Begum and Kadiran Begum, who claimed to be his wives. After protracted proceedings before several non judicial bodies a report adverse to the latter was made in January, 1950, but before the Nizam could issue a firman in accordance with it, Hyderabad became a part of the Indian Union and the Constitution of India came into force. An enactment called the Waliuddowla Succession Act, 1950, was therefore passed by the Hyderabad Legislature which provided that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab are hereby dismissed" and that the above decision "cannot be called in question in any court of law Held, that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community, in Courts of law, the Act was discriminatory ; that there was no rational or reasonable basis for the discrimination, and the Act contravened the provisions of article 14 of the Constitution and was therefore void. The analogy of private Acts of the British 405 Parliament is not helpful as the British Parliament enjoys legislative omnipotence and there are no constitutional limitations on its authority or power.

il Appeal No. 543 of 1963. Appeal from the judgment and decree, dated October 10, 1958 of the Madras High Court in O.S. Appeal No. 1 of 1954. 209 T. V. R. Tatachari, for the appellant. M. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No. 1. The Judgment of the Court was delivered by Mudholkar, J. This is an appeal from a judgment of the Madras High Court modifying the decree passed by a single Judge of that High Court in a suit for recovery of money. Admittedly the appellant had executed a promissory note at Madras for a sum of Rs. 10,600 in favour of one Narayana Iyer, since deceased, on January 28, 1946 and agreed to pay interest on that amount at 12% p.a. It is also admitted that no repayment was made by the appellant. Narayana Iyer, therefore, instituted a suit against him for recovery of a sum of Rs. 14,402 5 0, which includes interest upon the sum of Rg. 10,600. The appellant contended that the promissory note was only a renewal of a previous promissory note which itself as well as three earlier promissory notes were in renewal of the original promissory note for Rs. 1,000 executed in the year 1930. According to the appellant that promissory note was executed by his brother but was renewed by the appellant himself in the year 1932; that this promissory note was renewed on January 11, 1937 by him and that at that time Narayana Iyer had given an additional amount of Rs. 350 to him. The amount for which his promissory note was executed was Rs. 4,000 and it included interest on the first advance up to that date. Narayana lyer, however, instead of taking a promissory note in his own name took it in the name of General Bank which is a private limited company which admittedly was under his control. The debt was renewed in favour of the General Bank on January 3, 1940 by executing a fresh promissory note for Rs. 5,650 on that date and again on September 13, 1944 when it was renewed by obtaining a promissory note for Rs. 9,275. According to the respondents Narayana lyer paid off the dues to the General Bank at the instance of the appellant and obtained a promissory note in his favour for Rs. 10,600. As the amount was not paid, Narayana lyer instituted the suit out of which this appeal arises. He, however, died during the pendency of the suit and is now represented by his sons, the respondents. Upon the aforesaid facts and the further fact that the appellant is an agriculturist he claimed that he was entitled to the benefits of the Madras Agricul 210 turists Relief Act IV of 1938. He claimed that under the provisions of that Act he was entitled to have the debts scaled down. His plea was upheld by the learned single Judge of the High Court who held that the respondents after scaling down the interest as provided in the Act were entitled to a sum of Rs. 1,350 together with interest thereon at 6 1/4% from March 22, 1938 up to the date of the decree. In the appeal preferred by the respondents under the Letters Patent the appeal court held that the respondents were entitled to a decree for the entire amount for which the promissory note was executed, that is, Rs. 10,600 together with interest thereon at 61% p.a. In coming to this conclusion the appeal court placed an interpretation on explanation III to section 8 of the Act different from that placed by the learned single Judge. Section 7 of the Act provides that all debts payable by an agriculturist at the commencement of the Act shall be scaled down in accordance with the provisions of Chapter II. The Act received assent of the Governor General on March 11, 1938 and was first published in the Official Gazette on March 22, 1938 and must be deemed to have come into force as from the former date. Section 8 provides for the scaling down of debts incurred before December 1, 1932. Sub section (1) thereof says that all interest outstanding on the 1st of October, 1937 against an agriculturist shall be deemed to be discharged and only the principal outstanding on that date shall be deemed to be the amount repayable by the agriculturist debtor. Sub sections (2), (3) and (4) of that Act deal with classes of cases in which payments have been made from time to time by the debtor to the creditor. It is not necessary to refer to them because even according to the appellant he had not made any repayments before the execution of the promissory note in the suit. It is common ground that explanations 1, II and IV have no application to the present case. The only explanation which is relevant is explanation III. This explanation has been twice amended. The original explanation was as follows : "Where a debt has been renewed or included in a fresh document in favour of the same creditor the principal originally advanced by the creditor together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable by the agriculturist under this section. " 211 The amending Act 23 of 1948 substituted for it the following "Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same or a different debtor and whether in favour of the same or a different creditor the principal originally advanced together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section. " This was amended by Madras Act 24 of 1950 and now runs thus : "Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same debtor or by his heirs, legal representatives or assigns or by any other person acting on his behalf or in his interest and whether in favour of the same creditor or of any other person acting on his behalf or in his interest, the principal originally advanced together with such items, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section. " It is common ground that it is the explanation which was amended by Act 24 of 1950 which applies to the case before us. It will be seen that under the original explanation the benefit of sub section (1) of section 8 was available only in cases where the debt had been renewed in favour of the same, creditor as the one from whom it was originally obtained. It is contended on the appellant 's behalf that by virtue of the amendment of 1948 the benefit of the provision was available even if the creditor in whose name the debt was renewed was different from the one who had originally advanced the loan and also even where the original debtor was different from the one who executed the document under which the debt was renewed. It is pointed out that the second amendment was necessitated by reason of certain decisions of the Madras High Court holding that the words "different creditor" in Explanation III to section 8 did not include a third party in whose favour the debtor had executed a document renewing an earlier debt. According to learned counsel this interpretation defeated the object which the Legislature had in view in amending Explanation III in 1948 and that, therefore, that explanation was amended a second time to make it 212 clear that once it is found that a document was in renewal of a previous debt the benefit of section 8 would be available to the promisor whether the person renewing it or the person in whose favour it is renewed is different. It is unnecessary for us to consider what the reason for amending Explanation III by Act 23 of 1948 was. All that we are concerned with is the explanation as amended by Act 24 of 1950. By virtue of this explanation the benefit of section 8(1) would be available in a case where (a) a debt has been renewed or included in a fresh document; and where that is done (b) (i) by the same debtor, or (ii)by his heirs, legal representatives or assigns; or (iii)by any other person acting on his behalf; or (iv) by any other person acting in his interest. Such a transaction will be entitled to the benefit of the Act if the renewal or fresh agreement is in favour of (a) the same creditor; or (b) of any other person acting in his behalf or (c) any other person acting in his interest. In the instant case though the debtor in the transaction of 1930 was stated to be the appellant 's brother, in all subsequent transactions it was the appellant who was the debtor It would follow, therefore, that the requirements of the explanation pertaining to the debtor are satisfied in the sense that the same person has been the debtor. The second requirement of the explanation is with respect to the creditor. As already stated, after 1940 it was not Narayana lyer but the General Bank which was the creditor up to January 28, 1946 on which date the promissory note in suit was executed by the appellant in his favour. The General Bank has an independent existence and even though the controlling interest therein was with Narayana lyer and his family it would not be correct to say that there is an identity between that bank and Narayana lyer. Mr. Tatachari, however, contended that it was Narayana lyer who was the original creditor and that as he had full power of management and control with respect to the General Bank he went on obtaining promissory notes from the appellants, sometimes in his own favour and some times in favour of the Bank. For all practical purposes, therefore, according to the appellant, the creditor has been the same throughout. We cannot accept this argument in the absence of any material to show that the Bank acted on his behalf when the appellant executed the promissory notes, dated January 3, 1940 ,and September 30, 1944 in favour of the Bank. The contention 213 of Mr. Tatachari then is that the Bank in obtaining those promissory notes in renewal of the original debt was acting in his interest and that, therefore, the explanation was available to the appellant. In the High Court it was urged that when the appellant executed the promissory note dated January 28, 1946 Narayana lyer acted in the interest of the Bank. The ground on which the argument advanced before the High Court and the argument advanced before us is, however, the same. It is that the words "in the interest of" mean "for the benefit of". Even assuming that that is the meaning to be given to these words the argument of learned counsel cannot be sustained on the facts of this case. It has been found as a fact by the appeal court that Narayana Iyer actually paid Rs. 10,600 by cheque in favour of the General Bank Ltd., to the credit of the appellant. It has also been found by the High Court that Narayana lyer paid off the debt due from the appellant to the Bank at the request of the appellant for discharging the appellant 's liability upon the promissory note executed by him in favour of the Bank. These findings of the High Court have not been seriously challenged before us and in our opinion quite rightly. In view of these findings the contention of learned counsel that the payment was made "in the interest of the creditor" cannot be sustained. In the circumstances, therefore, we uphold the decree of the appeal court and dismiss the appeal with costs. Appeal dismissed.

The State Government is empowered under section 3(1) to issue a notification declaring that the estate specified therein has passed to the State, but the notification must be in respect of the ' property which is defined as an estate in a. 2(g) and that estate must be held by an intermediary as defined in section 2(h). In order to be an intermediary according to the definition in section 2(h) the person must be, among other things, "a Zamindar, Ilaquedar, Kherposhdar or Tagirdar within the meaning of Wajibul arz or any Sanad, deed or other instrument." 843 Held, that the proprietors of Hamgir and Serapgarh properties were not intermediaries as defined in section 2(h) and their respective properties were not "estates" within the meaning of section 2(g) and therefore Government had no jurisdiction or authority to issue any notification under section 3 with respect to their properties. Held (Per PATANJALI SASTRI C.J.,DAS and GHULAM HASAN JJ., MAHAJAN and BOSE JJ., dissenting), as respects the Nagra Zamindari that the Zamindar (appellant) was an intermediary as defined in a. 2(h) of the Act and his estate was an estate within the meaning of section 2(g) because the predecessor in title of the present Zamindai had acknowledged the overlordship of Raja of Gangpur and there fore the State Government had jurisdiction to issue a notification under section 3 of the Act declaring that the estate had passed to and become vested in the State. Per MAHAJAN and BosE JJ. The words "deed" and "other instruments" in a. 2(h) are not to be read ejusdem generis with "Sanad" and thus are not confined to a document of title like a Sanad in which one party creates or confers a zamindari estate on another. The words must be read disjunctively and be inter. preted according to their ordinary meaning. With reference to merged territories an intermediary neither "includes" a zamindar nor "means" a zamindar, but means a zamindar "within the meaning of" (1) the Wajib ul arz (2) any Sanad (3) any deed or (4) of any others instrument. The kind of zamindar referred to in section 2(h) is one who may be called "a true intermediary" within the meaning of the four documents set out there, that is to may, persons who hold an interest in the land between the raiy at and the overlord of the estate.

Civil Appeal No. 532(NT) of 1989. From the Judgment and Order dated 4.2. 1987 of the Allahabad High Court in S.T.R. No. 298 of 1986. AND Civil Appeal No. 533 (NT) of 1989. From the Judgment and Order dated 26.3. 1987 of the Allahabad High Court in Sales Tax Revision No. 454 of 1986. S.C. Manchanda, R.S. Rana and Ashok K. Srivastava for the Appellant. R.C. Mishra and Dr. Meera Aggarwal for the Respondent in C.A. No. 532 of 1989. Raja Ram Aggarwal, Vijay Hansaria and Sunil K. Jain for the Respondent in C.A. No. 533 of 1989. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted and these appeals are disposed of by the judgment herein. These appeals are from the judgments and orders of the High Court of Allahabad dated 4th February, 1987 and March 26, 1987 respectively. These involve a common question. The facts of the appeal arising out of Special Leave Petition No. 1293 of 1988 and the facts of the appeal arising out of Special Leave Petition No. 1296 of 1988 are similar. In order to appreciate the contentions raised herein, it would be appropriate to deal with the facts of the appeal arising out of Special Leave Petition No. 1293 of 1988. The assessee is engaged in repairing and refilling of cotton bowl on the shafts which are used as part of calendering machine in the textile industry. The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and 425 affixed. It is used in the textile finishing industries as an essential part of calendering machine. In the course of its use the cotton pasted on the shaft loses its thickness and shape and after some time it requires repairing and refilling. The assessee in this case moved an application under section 35 of the U.P. Sales Tax Act, 1948 (hereinaf ter called 'the Act '). It may be mentioned that Section 35 was added by the U.P. Sales Tax (Amendment and Validation) Act No. 23 of 1976. Section 35 of the said Act has been amended by Section 31 of the U.P. Act 12 of 1979. Section 35 provides for determination of disputed ques tions by moving an application before the Commissioner of Sales Tax. The relevant part of the said section as it stood at the relevant time was as follows: "35. Determination of disputed questions (1) If any question arises, otherwise than in a proceeding pending before a court or before an Assessing Authority under Section 7 or Section 21, whether, for the purposes of this Act, (a) any person or association of persons, society, club, firm company, corporation, undertaking or Government Department is a dealer; or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term; or (c) any transaction is a sale or purchase and, if so, the sale or purchase price, as the case may be, therefore; or (d) any particular dealer is required to obtain, or to apply for the renewal of registration ; or (e) any tax is payable in respect of any particular sale or purchase and, if so, the rate thereof, the person or the dealer concerned may, after depositing the fee specified in Section 32, submit an application to the Commissioner of Sales Tax, along with such documents as may be prescribed. 426 (2) The Commissioner of Sales Tax shall, after giving the applicant an opportunity of being heard, decide, as he deems fit, the question so arising: Provided that, before giving such decision, the Commissioner of Sales Tax may, in his discretion, ask an officer subordinate to him to make such inquiries as he considers necessary for the decision of the question. (3) No decision of the Commissioner of Sales Tax under this section shall affect the validity or operation of any order passed earlier by any Assessing Authority, Appellate Author ity, Revising Authority or the Tribunal. (4) No question which arises from an order already passed, in the case of the applicant, by any authority under this Act or the Tribunal, shall be entertained for determination under this section. (5) A decision given by the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final. (6) XXX XXX XXX. " The question that arises in these appeals before us is the true interpretation of sub section (5) of section 35 of the Act, namely, whether a revision shall lie to the High Court from the decision of the Commissioner under section 35 of the Act which has been the subjectmatter of an appeal before the Tribunal. The respondent dealer moved an applica tion under section 35 of the Act and the decision was ren dered in terms of the said section. The decision, inter alia, included the questions whether the job of repairing and refilling of cotton bowl and the process involved there in amounted to "manufacture" or "sale" within the meaning of the Act. The Commissioner of Sales Tax by his order dated 10th June, 1985 decided both the questions against the assessee. Aggrieved thereby the assessee had preferred an appeal before the Sales Tax Tribunal. The Tribunal by its order dated 14th November, 1985 allowed the appeal in part. The Tribunal held that the process of repairing and refill ing of cotton bowls of the customers did not amount to "manufacture" as defined under section 2(e i) of the Act. It further held that such an activity of the assessee amounted to "sale" as defined under section 2(h) of the Act as amend ed by the U.P. Sales Tax Amendment and Validation Act, 1985.It is against this decision of the Sales Tax Tribunal that the Commissioner of Sales Tax had preferred revision to the High Court. The High Court went into the question whether further revision lay to the High Court. The High Court, noticed of the terms of section 35 noted hereinbefore which provided by sub section 5 of section 35 that a decision given by the Commissioner of Sales Tax under that section, subject to an appeal to the Tribunal, shah be final. (Emphasis supplied) The High Court examined the question whether further revi sion lay and answered it in the negative. Therefore, we were concerned in these appeals with the question whether at the relevant time in terms of section 35 of the Act any further revision lay to the High Court from the decision of the Commissioner which has been the subject matter of appeal before the Tribunal. The High Court came to the conclusion that having regard to the scheme of the provisions and the amendment made by the U.P. Act 12 of 1979 and in view of the decision of the Division Bench of the High Court in Indo Lube Refineries vs Sales Tax Officer, Sector I, Gorakhpur, [1987] 66 STC 145 no further revision lay to the High Court from the order of the Tribunal. In that view of the matter, the High Court dismissed the revision. Aggrieved thereby, the Commissioner has come up in appeal before this Court in these two appeals. Shri Manchanda for the appellants and Shri Raja Ram Agarwal for the respondents both submitted that the judgment under appeal is not correct though for different reasons. It is necessary to refer to the scheme of the Act and the amendments from time to time effected therein. Broadly speaking, the assessment is made by the Sales Tax Officer in terms of section 3 and other allied sections. Section 9 of the Act deals with appeals and provides that any dealer or other person aggrieved by the order made by the Assessing Authority other than an order mentioned in section 10 A, may, within 30 days from the date of the service of the copy of the order or appeal to such authority, as may be pre scribed, request the appellate authority in writing for summary disposal of his appeal. The other consequential provisions of law need not at the present moment be examined in detail. Section 10 provides for Sales Tax Tribunal. The section was substituted at first by Act 12 of 1979 and thereafter by Act 22 of 1984. After the substitution by the Act 12 of 1979 the Act has provided that there shall be a Sales Tax Tribunal consisting of a President and such other members as the State Government may from time to time deem it necessary to appoint from amongst persons who have been, or who are qualified to be judges of the High Court and persons who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax provided that when the 428 Tribunal consisted of one or more persons who have been judges of a High Court then he or one of them should be appointed the President. Sub section (5) of Section 10 authorises the Tribunal, as the case may be, to confirm, cancel or vary such order. Sub section (2) of Section 10 stipulates that any person aggrieved by an order passed by an appellate authority under section 9 or by the revising authority under section 10 B or by a decision given by the Commissioner of Sales Tax under section 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal. Sub section 10(a) of Section 10 provides that an appeal against the order of the Appellate Authority under section 9 shall be heard and disposed of, inter alia, (i) by a bench of one member, whether such order is passed by an Assistant Commis sioner (Judicial), the amount of the tax, fee or penalty in dispute does not exceed five thousand rupees; and (ii) by a bench of two members, in any other case. An appeal against the order passed under section 10 B should be heard and disposed of by a bench of two members. An appeal against an order passed under section 35 shall be heard and disposed of by a bench of three members. The President has the power to direct an appeal to be heard and decided by a larger bench and transfer an appeal from one bench to another. There was a subsequent amendment by section 10 of the U.P. Act 22 of 1984. Section 10 as it stands after amendment by Act 22 of 1984 is as follows: "10. Sales Tax Tribunal (1) There shall be a Sales Tax Tribunal consisting of such members, including a President, as the State Government may, from time to time, deem it necessary to appoint from amongst (a) the persons who are qualified to be Judges of the High Court; and (b) the persons belonging to the Uttar Pradesh Sales Tax Service who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax: Provided that: (i) where the Tribunal consists of one or more persons who is or are members of the Uttar Pradesh Higher Judicial Service, then he or the senior most amongst them shall be appointed President; 429 (ii) no person shall be appointed from amongst advo cates unless he has paid income tax on income from such profession (exclusive of all other incomes) in each of the five consecutive years preceding such appointment. (1 A) The State Government may prescribe such other qualifi cations or conditions for the appointment of the President and other members of the Tribunal as it may deem fit. (1 B) The provisions of Rule 56 of the Uttar Pradesh Funda mental Rules shall continue to apply to every member of the Tribunal including the President, whether appointed before or after the commencement of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1983, as they apply to any other Government servant: Provided that a member of the Tribunal including the President, appointed before the commence of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1983, may continue as such till he attains the age of sixty years. (2) Any person aggrieved by an order passed by an Appellate Authority under Section 9, other than an order referred to in sub section (4 A) of that said section, or by the Revis ing Authority under section 10 B or by the Commissioner of Sales Tax under sub section (3) of section 4 A or by a decision given by the Commissioner of Sales Tax under Sec tion 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal: Provided that where the disputed amount of tax, fee or penalty does not exceed one thousand rupees, the appellant may, at his option, request the Tribunal in writ ing for summary disposal of his appeal, whereupon the Tribu nal may decide the appeal accordingly. Explanation For the purpose of this sub section, the expression 'any person ' in relation to any order passed by an authority other than the Commissioner of Sales Tax, 430 includes the Commissioner of Sales Tax. (2 A) The manner and procedure of summary disposal of appeal shall be such as may be prescribed. (3) Section 5 of the , shall apply to appeals or other applications under this section. (4) The Tribunal may at any stage, after giving the appel lant a reasonable opportunity of being heard, dismiss the appeal. (5) The Tribunal may, if it has not already dismissed the appeal under sub section (4), after calling for and examin ing the relevant records, and after giving the parties a reasonable opportunity of being heard or as the case may be, after following the procedure prescribed under subsection (2 A) (a) confirm, cancel or vary such order, or (b) set aside the order and direct the assessing or appellate or revisional authority or the Commissioner of Sales Tax, as the case may be, to pass a fresh order after such further inquiry, if any, as may be specified, or (c) order such amount of tax, fee or penalty or other money as may have been realised in excess of the due amount to be refunded according to the provisions of this Act. Explanation The power to vary an order referred to in clause (a) includes the power to vary the order by reducing or enhancing the amount of assessment or penalty. (6) Where an appeal under this section has been filed, the Tribunal may, on the application of the appellant moved within thirty days from the filing of such appeal, after giving the parties a reasonable opportunity of being heard, stay the operation of the order appealed against or the recovery of the disputed amount of any tax, fee or penalty payable,or refund of the amount due, or proceedings for re assessment, under the order appealed against till the dis posal of the appeal: 431 Provided that: (i) no application for stay of recovery of any disput ed amount of tax, fee or penalty shall be entertained unless the applicant has furnished satisfactory proof of the pay ment of not less than one third of such disputed amount in addition to the amount required to be deposited under sub section (1) of Section 9; (ii) the Tribunal may, or special and adequate reasons to be recorded in writing, waive or relax the requirement of clause (i) regarding payment of one third of such disputed amount. (8) No order passed under this section for the stay of recovery of tax, fee or penalty shall remain in force for more than thirty days unless the appellant furnishes ade quate security to the satisfaction of assessing authority concerned for payment of the outstanding amount. (9) The members of the Tribunal shall sit in such benches of one, two or more members as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub section (1) and the rules, be allotted to them by order, or in accordance with the directions of the President of the Tribunal. (10)(a) An appeal against the order of appellate authority under section 9 shall be heard and disposed of (i) by a bench of two members, where such order is passed by a Deputy Commissioner (Appeals) or the amount of tax, fee or penalty in dispute exceeds ten thousand rupees; (ii) by a single member in any other case. (b) An appeal against an order passed under Section 10 B shall be heard and disposed of by a bench of two members. (c) An appeal against an order passed under sub section (3) of Section 4 A or a decision given under Section 35, which shall be filed before the President shall be heard and 432 disposed of by a bench of three members. (d) The President may, if he so thinks fit (i) direct an appeal to be heard and decided by a larger bench; (ii) transfer an appeal from one bench to another bench. (11) The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt. (12) The decision of case heard by a bench shall be in accordance with the opinion of the majority. Where the members are equally divided the President of the Tribunal may (a) if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accordance with such opinions, or (b) from a larger bench. " The section has been set out in extend in order to appreciate the contentions raised. As will be apparent from the aforesaid sub section 10(c) that an appeal against an order passed or a decision given under section 35 shall be filed before the President and shall be heard and disposed of by a bench of three members. So far as revision is concerned, this was the subject matter of section 11 of the Act. The Sales Tax Act of 1948 under went an amendment in 1984 so far as revision is concerned and as it stands today and so far as it is material for the present purpose, is as follows: "11. Revision by High Court in special cases (1) Any person aggrieved by an order made under subsection (4) or sub section (5) of section 10, other than an order under sub section (2) of that section summarily dis 433 posing of the appeal, or by an order passed under Section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law: Provided that, where such order was served on the person concerned at any time before the date of commencement of this section, as substituted by the Uttar Pradesh Taxa tion Laws (Amendment and Validation) Act, 1978 (hereinafter in this section referred to as the said date), and the period of one hundred and twenty days for making the appli cation as referred to in this sub section, as it existed before the said date, had not expired on the said date the person aggrieved may apply for revision within sixty days from the said date. " The other sub sections are not relevant for the present purpose. Section 10 A deals with orders against which no appeal or revision lies and Section 10 B stands for revision by the Commissioner of Sales Tax. Section 11, as mentioned herein before, stands for revision by the High Court and has been amended from time to time. In the aforesaid background the question posed in these appeals will have to be examined in the light of the deci sion of the High Court. The High Court in its judgment under appeal after analysing the provisions of Section 35 observed that the Commissioner entered into the determination of the disputed questions. Sub clause (2) of Section 35 of the Act, according to the High Court, enjoins on the Commissioner to decide the questions referred to him as he deems fit after giving the applicant an opportunity of being heard. Under sub clause (5) of Section 35 it has been stated that the decision given by the Commissioner of Sales Tax shall sub ject to an appeal to the Tribunal, be final. The High Court while examining the section noticed that when an appeal against the order passed under Section 35 of the Act is before the Tribunal, the appeal is to be heard and disposed of by a bench of three members, although in regard to other appeals before the Tribunal these can be disposed of even by a single member or by a bench consisting of two members. The High Court noted that under subclause (5) of section 35 of the Act prior to its amendment brought out by U.P. Act No. 12 of 1979, an appeal used to lie to the High Court against the order of the Commissioner of the Sales Tax. By the 434 aforesaid amendment brought out by U.P. Act No. 12 of 1979 under clause (5) of section 35 the words "High Court" have been deleted and substituted by the word "Tribunal". The learned Judge of the High Court observed that an appeal before the Tribunal was specially treated by the legislature and it was enjoined that it should be disposed of by a bench of not less than three members. The learned Judge noted that the Division Bench of the High Court in the case of Indo Lube Refineries vs Sales Tax Officer, Sector l, Gorakhpur, [1987] 66 STC 145 had taken the view that an order passed by the Commissioner under Section 35 of the Act was an adminis trative order and in so doing he did not act as a Tribunal. In this connection reference may be made to the Division Bench decision of the High Court of Allahabad in Indo Lube Refineries (supra). There the petitioner filed a writ peti tion contending that as the order of the Commissioner of Sales Tax had become final under sub section (5) of section 35 of the U.P. Sales Tax Act, 1948, it was binding on the Revenue as well as the petitioner and it was open to the Sales Tax Officer who was inferior in hierarchy to ignore the order of the Commissioner in passing the assessment order. Dismissing the petition, it was held by the High Court that the Sales Tax Act had made a clear distinction between judicial proceedings which had to be conducted and concluded in accordance with sections 7, 9, 10, 10 B, 21 and 35 and the High Court noted that the proceedings under sections 7 to 10 B were of different character than the one contemplated under section 35, and it excluded a proceeding pending before a court or before an assessing authority under section 7 or section 21. It was a type of miscellane ous jurisdiction, it was held, to be exercised only in given circumstances or situations. In respect of proceedings under section 7, which will take within itself an appeal and revision, the legislature had not made the Commissioner a final arbiter. The Sales Tax Officers or the assessing authority while determining the turnover with a view to assess tax liability acts as a tribunal. Likewise, the appellant authority under section 9 and the Tribunal under section 10 of the Act are tribunals. The Commissioner did not act as a tribunal while dealing with an application under section 35. The nature of his jurisdiction is adminis trative according to the High Court. The legislature, ac cording to the High Court, has used the language "otherwise than in a proceeding pending before a court or before an assessing authority under section 7 or 21" deliberately with a view to maintain and preserve the sanctity of the judicial proceedings under the Act. The word "final" used in sub section (5) of section 35 is only with regard to the pro ceedings contemplated by that section and the order of the Commissioner 435 would be final. But this will not bar the other authorities under the Act from deciding the controversy before it on its own by looking to the evidence and considering the question of law which comes before it. Therefore, the High Court rejected the submission that the order of the Commissioner of Sales Tax is binding in the assessment proceedings and those proceedings have to be decided in accordance with the same. It is difficult to accept the position that under sec tion 35 which empowers the Commissioner to determine disput ed questions and the Commissioner under sub section (2) after giving the parties opportunity of being heard, decides a question, his order can be called to be an administrative order. In our opinion, the very language of the section which enjoins a decision by the Commissioner envisages that the decision is quasi judicial or judicial and cannot be characterised as administrative. Whether that decision will be binding on other party and what will be the effect of the decision of the Commissioner of Sales Tax in pending assess ment proceedings is another matter and we are not concerned in these appeals with that question. We are concerned with the question whether on the language of the section a revi sion is entertainable from the decision of the Commissioner which has been subjected to an appeal to the Tribunal. In our opinion, in view of the language used specifically in the absence of a provision that such a revision will be maintainable, such revision will not be. Sub section (5) of section 35 after the amendment states that the decision of the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final. In view of the language of that section, in our opinion, it cannot contemplated a further revision to the High Court against a decision of the Tribunal. In Kydd vs Watch Committee of City of Liverpool, , 331 32, Lord Lorebum, L.C., construing the provisions of section 11 of the Police Act, 1890 of England which provided an appeal to quarter sessions as to the amount of a constable 's pension, and also stipu lated that the court shall make an order which shall be just and final, observed: "Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the busi ness at quarter sessions . . " The Judicial Committee in Maung Ba Thaw vs Ma Pin, [1933 34] 61 LR Indian Appeals 158 while dealing with the Provincial Insolvency 436 Act observed that when a fight of appeal was given to any of the ordinary courts of the country, the procedure, orders and decrees of that court would be governed by the ordinary rules of the Civil Procedure Code and therefore an appeal to Privy Council was maintainable by the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of Civil Procedure but to the courts enumer ated under the Sales Tax Act and the revision is contemplat ed under the provisions of the Sales Tax Act. 'Final ' in the section means that it is final and under the Act subject to the limited procedure contemplated under the Act. The inten tion of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and questions in connection thereto. The observations of Lord Lorebum, L.C. were referred to in South Asia Industries Pvt. Ltd. vs S.B. Sarup Singh, , where this Court observed at page 766 of the report that the expression "final" prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observations in M/s. Jetha Bai and Sons, Jew and others vs M/s. Sunderdas Rathenai and others, may be relied on. We have noted that section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub section (4) or sub section (5) of Section 10, other than an order under sub section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such a situation, to be heard by a bench of three Judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such deci sion of the Commissioner would not have been made final by sub section (5) of Section 35. It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing and refilling of the cotton bowls of the customers did not amount to "manufacture" as defined in Section 2(e 1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 with effect from 2nd February, 1985. In the scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a bench of three judges. 437 Where it was provided that the decision of the Commissioner would be final subject to an appeal to the Tribunal, in our opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 17 lay to the High Court. Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law. It may be mentioned that the High Court had mentioned that under sub clause (5) of sec tion 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Com missioner of Sales Tax. By the aforesaid amendment brought forward by the U.P. Act 12 of 1979 under clause (5) of Section 35 the words "High Court" have been deleted and substituted by the word "Tribunal". It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies. So far as the appeal before the Tribunal against the order passed under section 35 is concerned, special treatment has been provided for by the legislature. The Tribunal has come in place of the High Court in hearing the appeal. In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted. As mentioned hereinbefore, we have to find out the intention of the Legislature in such a situation. The intention of the Legis lature is a slippery phrase as observed in Aron Salomon vs A. Salomon and Company Ltd., ; , 38 see also observations in Lord Howard De Walden vs Inland Revenue Commissioners, [1948] All England Reports page 825. In such cases it is better to find out the intention of the legisla ture from the words used by the natural meaning of the words and spirit and reason of the law. See Cross on Statutory Interpretation, Second Edition, page 21. Having regard to the scheme manifested from the amend ment, that is to say, to make the Commissioner 's decision final, subject to an appeal to the Tribunal where the Tribu nal is enjoined to hear such an appeal by a bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under section 11 of the Act. In our opinion, therefore, the High Court was right that no further revision in such a situation lies to the High Court. This, however, does not eliminate the cor rection by the High Court. In an appropriate case by exer cise of a writ of certiora under Article 226 of the Consti tution it exercises superintendence over all courts and tribunals throughout the 438 territory. See in this connection Re Gilmore 's Application, [1957] 1 All England Reports 796. We are not concerned with that situation in these appeals. In that view of the matter it appears to us that the High Court is right in so far as it held that no revision lay to the High Court. These appeals, therefore, fail and are dismissed. Par ties will pay and bear their own costs. N.V.K. Appeals dismissed.

The assessee respondent in the appeals was engaged in the repairing and refilling of cotton bowls on the shafts which are used as part of calendering machine in the textile industry. The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and affixed. It is used in the textile finishing industries as an essential part of the calendering machine. In the course of its use the cotton pasted on the shaft loses its thickness and shape and after sometime it requires repairing and refilling. The assessee moved an application under section 35 of the U.P. Sales Tax Act, 1948 and the decision inter alia included the question whether the job of repairing and refilling of cotton bowl and the process involved therein amounted to "manufacture" or "sale" within the meaning of the Act. The Commissioner of Sales Tax decided both these ques tions against the assessee, and the assessee preferred an appeal before the 422 Sales Tax Tribunal. The Tribunal allowed the appeal in part. It held that the process of repairing and refilling of cotton bowl of the customers did not amount to "manufacture" as defined under section 2(e i) of the Act. It further held that such an activity of the assessee amounted to "sale" as defined under section 2(h) of the Act as amended by the U.P. Sales Tax Amendment and Validation Act, 1985. The:Commissioner of Sales Tax preferred a revision to the High Court which went into the question whether a fur ther revision lay to the High Court. It came to the conclu sion having regard to the scheme of the provisions contained in section 35 and the amendment made by the U.P. Act 12 of 1979, and the earlier Division Bench decision of the High Court in Indo Lube Refineries vs Sales Tax Officer, [1987] 66 S.T.C. 145 (All) that no further revision lay to the High Court from the order of the Tribunal. The High Court accord ingly dismissed the revision. The Commissioner appealed by special leave to this Court. On the question: whether a revision shall lie to the High Court from the decision of the Commissioner under section 35 of the U.P. Sales Tax Act which has been the subject matter of an appeal before the Tribunal. Dismissing the Appeals, the Court, HELD: 1. The very language of section 35 of the U.P. Sales Tax Act, 1948 which enjoins a decision by the Commis sioner envisages that the decision is quasi judicial or judicial and cannot be characterised as administrative. The question is whether on the language of the section a revi sion is entertainable from the decision of the Commissioner which has been subjected to an appeal to the Tribunal. In view of the language used specifically in the absence of a provision that such a revision will be maintainable such revision will not be. [435C E] 2. Sub section (5) of section 35 after the amendment states that the decision of the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribu nal, be final. In view of the language of that section, it cannot contemplate a further revision to the High Court against a decision of the Tribunal. [435E F] Indo Lube Refineries vs Sales Tax Officer Sector l. Gorakhpur, [1987] 66 STC 145, approved. 423 3. In the instant case, the right of appeal has been given under the Act not to any ordinary Court of the country under the Code of Civil Procedure but to the courts enumer ated under the Sales Tax Act, and the revision is contem plated under the provisions of the Sales Tax Act. [436B] 4. "Final" in section 35 means that it is final and under the Act subject to the limited procedure contemplated under the Act. The expression 'final ' prima facie means that an order passed under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. [436C D] Kydd vs Vatch Committee of City of Liverpool, , 331 32; Maung Ba Thaw vs Ma Pin, [1933 34] 61 LR Indian Appeals 158; South Asia Industries Pvt. Ltd. vs S.B. Sarup Singh, and M/s. Jetha Bai and Sons Jew and others vs M/s. Sunderdas Ratheni and others; , , referred to. Revision to the High Court in special cases under section 11 is contemplated on the ground that the case involved a question of law. [437B] 6. Having regard to the scheme of the U.P. Sales Tax Act, 1948 manifested from the amendment, to make the Commis sioner 's decision final, subject to an appeal to the Tribu nal where the Tribunal is enjoined to hear such as appeal by a Bench of three members and where revision is provided only in special cases, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under section 11 of the Act. The High Court was, therefore, right that no further revision in such a situation would lie to the High Court. [437F G] 7. This, however, does not eliminate correction by the High Court. In an appropriate case by exercise of a writ of certioraris under Article 226 of the Constitution it exer cises superintendence over all Courts and Tribunals through out the territory. [437G H] Re Gilmore 's Application, [1957] 1 All England Reports 796, referred to. The intention of the legislature is a slippery phrase. It is better to find out the intention of the legis lature from the words used by the natural meaning of the words and the spirit and reason of the law. [437E] 424 Aron Salomon vs A. Salomon and Company Ltd., ; ,38; Lord Howard De Walden vs Inland Revenue Commis sioners,[1948] 2 All England Reports page 825. referred to. Cross Statutory Interpretation (Second Edn.) p. 21. referred to.

Civil Appeal No. 1321 of 1980. From the Judgment and Order dated the 15th February, 1976 of the High Court of Rajasthan at Jodhpur in section B. Civil Revision No. 320 of 1978. P. G. Gokhale and Mr. B. R. Agarwala for the Appellant. Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by CHANDRACHUD, C.J. The appellant, the Bank of Baroda, agreed through its Banswara Branch to sanction a demand loan facility in the sum of Rs.36,000 in favour of respondent l. In consideration thereof, respondent I executed a demand promissory note in favour of the Bank on June 18, 1973. He also executed a bond hypothecating the standing Crop of his lands situated at Khandu and 786 Surjipada in Rajasthan Respondents 2 and 3 are the guarantors for the repayment of the loan. In order to further secure the repayment of the loan, respondent 1 executed a deed of simple mortgage in favour of the Bank, ill respect of the lands at Khandu and Surjipada. The respondents having failed to repay the loan, the appellant filed against them a suit in the court of the learned District Judge, Banswara, for recovering a sum of Rs. 52,000 and odd which was due ` on the loan transaction. Respondents raised a preliminary objection to the maintainability of the suit on the ground that the claim in the suit was essentially one for enforcing the mortgage executed by them in favour of the Bank and, therefore, the Revenue court had the exclusive jurisdiction to entertain the suit, by reason of the provisions contained in the Rajasthan Tenancy Act 3 of 1955, (hereinafter called "the Act"). That objection was overruled by the learned District Judge but, in a civil revision application filed by the respondents, the High Court upheld it. According to the High Court, "the execution of the mortgage deed by defendant No. l in favour of the plaintiff in respect of his tenancy rights in agricultural land also forms the essential part of the cause of action of the plaintiff and as such, the suit is triable by a revenue court". The correctness of this view is questioned by the plaintiff in this appeal by special leave. Section 207 of the Act reads thus; 207. Suit and applications cognizable by revenue court only. (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation: If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted. Section 256 of the Act, which is complementary to section 207, reads thus; 787 "256. Bar to Jurisdiction of civil courts. (1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect to any matter arising under this Act or the Rules made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein. (2) Save as aforesaid, no order passed by the State Government or by any revenue court or officer in exercise of the powers conferred by this Act or the Rules made there under shall be liable to be questioned in any civil court". A combined reading of these two sections would show that the Jurisdiction of civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule. The civil court has no jurisdiction to entertain a suit or proceeding with respect to any matter arising under the Act or the Rules made thereunder provided that a remedy by way of a suit, application or appeal or otherwise is provided in the Act. The legal position on the question of jurisdiction which is stated above requires examination of the various entries in the Third Schedule. That Schedule is divided into three parts, the first of which is called "Suits", the second is called "Applications", and the third is called "Appeals". We are concerned in this appeal with the 35 entries which are comprehended in the first part which deals with suits. It is common ground, and the High Court has not held to the contrary, that none of the specific entries I to 34 is applicable to the suit filed by the appellant Bank. The argument is that the residuary Entry 35 would govern the suit and, therefore, by reason of sections 207 and 256 of the Act, the Revenue court alone could entertain it. Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act. The description of the entry as "General" is given in Column 2 of the Third Schedule which is headed "Section of Act. " the third column of the Schedule carries the heading "Description of suit, application or appeal". Under that column, the relevant description runs thus: "Any other suit in respect of any matter arising under this Act, not specifically provided for elsewhere in this Schedule". 788 We are unable to appreciate how the suit filed by the Bank can fall under this "General" or residuary entry. The suit of the Bank to recover the loan is not in respect of any matter arising under the Act. The long title of the Act shows that it was passed in order "to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith". A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation, of the Act and can, by no stretch of imagination be said to be in respect of any matter arising under the Act. The High Court has relied on section 43 of the Act in order to come to the conclusion that the deed of mortgage was executed by respondent 1 in favour of the Bank in accordance with that section and, therefore, the suit for the sale of the tenancy rights of the mortgagee by enforcement of the mortgage is a suit in respect of a matter arising under the Act. The High Court holds that such a suit would attract the residuary entry since the matter to which it relates has not been specifically provided for elsewhere in the Third Schedule. With respect, we are unable to accept this line of reasoning. Section 43 (1) of the Act, which is relevant for this purpose, reads thus: "43. Mortgage: (1) Khateder tenant, or, with the general or special permission of the State Government or any officer authorised by it in this behalf, a Ghair Khatedar tenant, may hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining loan from the State Government or a Land Development Bank as defined in the Rajasthan Co operative Societies Act, 1965 (Act 13 of 1965) or a Co operative Society registered or deemed to be registered as such under the said Act or any Scheduled Bank or any other institution notified by the State Government in that behalf" The High Court is in error in saying that `it cannot be disputed ' that the mortgage was executed by respondent 1 in pursuance of section 43. The business of the Bank, in so far as lending transactions are concerned, is not to lend moneys on mortgages but the business is to lend moneys. In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction. It is only by way of a collateral security that the Bank obtained a hypothecation bond and 789 a deed of mortgage from respondent 1 find a letter of guarantee from A respondents 2 and 3. The entire judgment of the High Court is based on the assumption that the mortgage was executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted. Once it is appreciated that the mortgage executed by respondent I is outside the scope of the Act, the reasoning of the High Court has to be rejected. On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. If the matter is approached from that point of view, it would be clear that primarily and basically, the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent 1 and the guarantee given by respondents 2 and 3. The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents. By the second prayer, the Bank has asked that "in case of non payment of the decretal amount" the mortgaged property should be brought to sale and if the proceeds of that sale are not enough to meet the decretal liability, the other movable and immovable properties of the respondents should be put at sale. The suit is not one to enforce the mortgage and, even assuming for the purpose of argument that it is, the mortgage not having been executed under Section 43 of the Act, nor being one relatable to `that section, the residuary Entry 35 can have no application. If that entry is out of way, there is no other provision in the Act, which would apply to the instant suit. The civil court has therefore, jurisdiction to entertain the suit filed by the appellant Bank. For these reasons, we set aside the judgment of the High Court and restore that of the District Court. The suit shall be disposed of expeditiously. The appellant will be entitled to its costs of this appeal from the respondents. section R. Appeal allowed.

The respondents, Landlord. filed three ejectment applications on March 9, 1967, May 13, 1968 and March 9, 1971 respectively against the appellants, a tenant for possession of one room situate at Kamla Nagar, New Delhi. The first application was on the ground of non payment arrears of lent and bona fide requirement, the second on the ground of bona fide requirement of the landlord and the third one again on the ground of non. payment of arrears of rent. The first application, where the appellant complied with an order passed by the Rent Controller u/s 14(21 r/w section 15(1 ) of the Delhi Rent Control Act, 1958 calling upon the appellant to deposit arrears of rent, was withdrawn by the respondents subsequently on the ground that they had not given to the appellant a notice to quit. The second application was dismissed on merits. In the third application out of which the present appeal arises, the Additional Rent Controller passed an order of eviction against the appellant holding that no order section 15(1), of the Act could be passed on the ground that such a benefit was given to the appellant in the first eviction petition and that by reason of the proviso to sub section 2 of section 14 of the Act, the appellant could not claim that benefit once again. The appeal of the appellant against the order of eviction was allowed by the Rent Control Tribunal, which took the view that the appellant was entitled to the benefit of the provision contained in section 14 (2) of the Act and that, the proviso to that sub section had no application because, the benefit of the provision contained in section 14 (2) was being availed of by the appellant for the first time in the present proceedings. But the High Court in second appeal set aside the judgment of the Rent Control Tribunal and restored that of the Rent Controller. The appellant contended that the proviso to sub section (2) of section 14 can have no application to the instant case because, in the first ejectment proceedings the appellant had not obtained any benefit under that sub section. The respondent contended that if a tenant avails of the benefit of an order passed section 15 (1), he must be regarded as having obtained the benefit of the provision contained in section 14 (2) and that the final result of the eviction petition in which an order was passed under section 15 (1) for the first time, or the form of the final order passed in that proceeding, has no relevance on the question whether the tenant had obtained benefit of the provision contained in section 14 (2). 389 Allowing the appeal, ^ HELD: (I) Section 14 (2) of the Act provides that no order for the recovery of possession of any premises can be made on the ground that the tenant has committed default in the payment of rent, if he pays or deposits the rent in accordance with the provisions of section 15. The benefit which the tenant obtains under section 14 (2) is the avoidance of the decree for possession. Though he had committed default in the payment of rent, no decree for possession can be passed against him. This benefit accrues to the tenant by reason of the fact that he has complied with the order passed by the Controller under section 15 of the Act. The passing of an order under section 15 is not a benefit which accrues to the tenant under section 14(2). It is obligatory upon the Controller to pass an order under section 15(1) in every proceeding for the recovery of possession or: the ground specified in section 14 (1) (a), that is, on the ground that the tenant has committed default in the payment of rent. That is a facility which the law obliges the Controller to give to the tenant under section 15. It is through the medium of that facility that the tenant obtains the benefit under section 14(2). And that benefit consists in the acquisition of an immunity against the passing of an order of possession on the ground of default in the payment of rent. It must follow that, it is only if an order for possession is Dot passed against the tenant by reason of the provision contained in section 14(2), that it can be said that he has obtained a benefit under that section. [394C G] (2) If the earlier proceeding was withdrawn by the landlord, it cannot be said that the tenant obtained the benefit of not having had an order of possession passed against him. It is self evident that if a proceeding ends in an order granting permission for its withdrawal, it cannot possibly be said that "no order for the recovery of possession was passed therein for the E reason that the tenant had made payment or deposit as required by section 15". That is the gist of Section 14(2). The stage or occasion for passing an order to the effect that 'no order for possession can be passed because of the fact that the tenant has complied with the order passed under section 15 does not arise in the very nature of things, in a case wherein the landlord is permitted to withdraw the application for ejectment of the tenant. [394H; 395A B] (3) In the instant case, the reason leading to the termination of the earlier ejectment application was that the respondents wanted to cure the formal defect from which the application suffered and not that no order for possession could be passed against the appellant for he reason that the had complied with the order passed under section 15. In other words, there was no nexus between the final order which was passed in the earlier ejectment application and the fact that the appellant had complied with the order passed under section 15. The earlier ejectment application was founded on two grounds, namely, that the appellant had committed default in the payment of rent and that respondents wanted the premises for their personal need. The fact that the first of these grounds was no longer available t ) the respondents since the appellant had complied with the order passed under section 15 could not have resulted in the dismissal of the ejectment application because, the other ground on which eviction of the appellant was sought by the respondents had yet to be considered by the Rent Controller. This is an additional reason why it cannot be said on the facts, of this case 390 that the appellant obtained a benefit under section 14(2). But, the two circumstances, just mentioned will not make any difference to the fundamental legal position explained above that the proviso to section 14(2) can be attracted only if it is shown that the tenant had obtained the benefit of the provision contained in that section and not otherwise. [395D H] (4) The Court allowed the appeal, set aside the judgment of the High Court and restored that of the Rent Control Tribunal with the modification that the period of one month for depositing the arrears Or rent shall be computed from the date of this judgment. [397C] Rama Gupta vs Rai Singh Kain , Ashok Kumar vs Ram Gopal 1982 (2) Rent Control Journal 29 approved. Kahan Chand Makan vs B.S. Bhambri, AIR 1977 Delhi 27 referred to.

ivil Appeal Nos. 2486 87 (N) of 1978. From the Judgment and Order dated 17.3.1978 of the Bombay High Court in Second Appeal Nos. 293 and 361 of 1972. P.H. Parekh for the Appellant. section Padumanabhan, Amicus Curiae, R.A. Perumal and G. Narasimhulu for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. Litigation, between two sisters, by way of cross suits, one, for permanent injunction by the appellant basing her claim on gift deed executed in 1954 by her mother, a Hindu widow, of the entire estate inherited by her from her husband, and another for declaration and partition by respondent assailing validity of the gift deed and claiming reversioner 's right after death of the mother in 1968, has reached this Court by grant of special leave against judgment of the Bombay High Court in Second Appeal raising a legal issue of seminal importance as to nature of right and title of female donee of Hindu widow 's estate after coming into force of Hidnu Succession Act (hereinafter refferred to as the Act). Facts are simple. Stakes, also, are not substantial, but the issue is of far reaching consequence. Could a Hindu widow alienate by gift the entire estate inherited from the husband, in favour of one of the female reversioners prior to enforcement of Act 20 of 1956. In case answer to issue is in the affirmative then what was the nature of right that the donee got under law? Did she become an owner of a widow 's 605 estate, a limited owner, an owner with some right or title, so as to acquire rights of absolute ownership under section 14 of Act or a trespasser and if trespasser then whether she acquired rights by adverse possession by perfecting her rights against the donor only or it was essential to prescribe rights against reversioners as well? Shorn of details, and various issues raised in the suits, suffice it to mention that even though the trial court found the gift deed to have been duly attested and executed after obtaining permission from the appropriate authority the claim of appellant, for permanent injunction, was decreed not on Section 14 of the Act as the widow who had executed the gift deed in 1954 was, `incompetent to alienate widow 's estate by gift permanently ' under Hindu Law but on adverse possession and estoppel. The appellate court while affirming the finding on section 14 of the Act allowed the appeal and dismissed the suit as `adverse possession against the widow is not adverse against reversioners, and the next reversioner is entitled to recover the possession of the property or his share in it within 12 years from the date of the death of the widow '. It was further held that the appellant could not acquire, any right by, `estoppel under section 41 of the Transfer of Property Act against the reversioners by reason of the widow 's conduct '. In view of the concurrent findings of two courts below on section 14 of the Act the High Court appears to have been invited to adjudicate, only, on the question if the appellate court was justified in reversing the finding on adverse possession wich it disposed of, treating it as finding of fact, and observing that possession of appellant, `must be deemed to be on behalf of other co sharers in the absence of any evidence before ouster of the other sisters '. Wheher the High Court was justified in not examining the question of adverse possession is not necessary to be gone into as the appellant can succeed, only, if the finding recorded by the first appellate court that the appellant could not acquire any rights against reversioners during lifetime of the widow is found to be erroneous in law. But before doing so the claim of the appellant that she became an absolute owner under section 14 of the Act, reiterated, once again, in this Court, may be examined as it is a question of law. A full bench of the Delhi High Court in Smt. Chinti vs Smt. Daultu, AIR 1968 Delhi 264 held that possession of a female donee in pursuance of gift deed executed by her mother could not be characterised as illegal or of trespasser, therefore, she being a female Hindu `possessed ' of the property on the date came into force became an absolute owner under section 14 of the Act. When more or less similar 606 matter came up before Patna High Court in Sulochana Kuer vs Doomati Kuer, AIR 1970 Patna 352 the court, held that, "a Hindu woman 's estate as such is not capable of transfer either by sale or gift. The mere concept of such an estate is not transferred on the transfer of properties attaching to the estate". In Anath Bandhu vs Chanchala Bala, AIR 1976 Calcutta 303 the Calcutta High Court, specifically, dissented from the Delhi decision and held that, "Section 14 wanted to benefit those female Hindus who were limited owners in then existing Hindu Law before the commencement of the Act. In the present case the limited owner Motibala having transferred the limited interest to Chanchala before the passing of the Act, it cannot be said that Chanchala 's limited interest,if any, ripened into absolute interest in terms of section 14 of the Act". A full bench of Punjab and Haryana High Court in Parmeshwari vs Santokhi, AIR 1977 Punjab 141 too, did not agree with Delhi High Court. It went into the background of legislation, the original form of the bill, ambit of the explanation, anomalies that would result if, even, female alienee was deemed to be a limited owner and held, " that section 14 of the Act was not intended to benefit the alienees of a limited Hindu owner". Similar view was taken by Andhra Pradesh and Madras, High Court in AIR 1957 AP 280 and AIR 1958 Madras, Gaddam Venkayama vs Gaddam Veeryya, and Marudakkal vs Arumugha. Thus according to Delhi Court a donee of even entire Hindu widow 's estate became absolute owner under section 14 of the Act whereas according to Patna, Calcutta, Punjab, Madras and Andhra Pradesh High Courts, rights of a female donee under Hindu Law, prior to coming into force of the Act did not get enlarged under section 14 of the Act and it did not preclude reversioners from assailing validity of the gift deed. To ascertain which view accords more to the objective sought to be achieved by the Act it appears necessary to extract section 14 which reads as under: (1) Any property possessed by a female Hindu,whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what 607 soever, and also any such property held by her as Stridhana immediately before the commencement of this Act. (2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. Needless to emphasise that the section was a step forward towards social amelioration of women who had been subjected to gross dis crimination in matter of inheritance. Even when the Hindu Women 's Rights to Property Act XVIII of 1937 was enacted it succeeded partially only. While providing for inheritance and devolution to widow and even widow of predeceased son the Act could not go beyond creating limited interest or a Hindu woman 's estate. Absolute ownerships or female heir by effacing inequality and putting male an female heirs at par in matter of inheritance was achieved by the Succession Act. A female Hindu inheriting property under the Act, also, became a stock of descent. In Eramma vs Verrupana, , this Court observed, "The object of the section is to extinguish the estate called `limited estate ' or `widow 's estate ' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder". But did the legislature intend to extend same benefit, namely, enlarge the estate, held, on the date the Act came into force by any or every female Hindu into full and absolute estate irrespective of whether she was a limited owner or not. According to learned counsel for appellant the answer should be given in affirmative. He urged that since the age long traditional limitation on inheritance and disposition by a female was removed and the section was widely worded by using broad and comprehensive expressions such as, `and property, `possessed ', `acquired before or after the commencement of the Act ' and each of these expressions have received expansive of the Act ' and each of these expressions have received expansive interpretations by the Court there was no reason not to give similar interpretation to the word female Hindu. The learned counsel submitted that there was no warrant to confine scope of the section to limited owners. He argued that if the argument of the respondent was accepted it shall result in substitution of the word ` female Hindu ' with `limited owner ' which 608 would be contrary to legislative intention, the social philosophy on which the section was founded and the principle of interpretation. Relying on the explanation, to the section, it was urged that it not only explained meaning of the word `property ' but it left no room for doubt that a female Hindu possessed of any property, which satisfied the extended meaning on the date the Act came into force, became an absolute owner. It was further argued that the expression `limited owner ' has been used in the section not to whittle down the otherwise simple and plain meaning of the words `female Hindu ' by introducing narrow concept of widows ' estate or limited owner but to put beyond doubt the nature and status of rights of females after the Act. Support was also drawn from the marginal note of the section and it was urged that the words, `property of a female Hindu to be her absolute property ', was yet another indication to interpret the word `female Hindu ' widely, so as to include in its ambit a donee from a limited owner. That the section is not very happily worded, does not admit of any doubt. It was commented upon by this Court in V. Tulsamma vs Shesha Reddy, ; and it was observed that the section was, "a classic instance of statutory provision which, by reason of its inapt draftsmanship has created endless confusion for litigants". May be so but the answer to the issue must emerge from the section, its background, purpose of its enactment and the reason for use of such wide expression. Nothing turns on the marginal note as it is usually not restored to for construing meaning of a section, particularly, when the language is plain and simple. It is well settled that a section has to be read in its entirely as one composite unit without bifurcating it or ignoring any part of it. Viewed from this perspective the section, undoubtedly, comprises of two parts, one descriptive, specifying the essential requirements for applicability of the section, other consequences arising out of it. One cannot operate without the other. Neither can be read in isolation. Both are integral parts of the section. Mere provision that any property possessed by a female Hindu on the date the Act came into force shall be held by her would have been incomplete and insufficient to achieve the objective of removing inequality amongst male and female Hindus unless it was provided that the otherwise limited estate of such a female would become enlarged into full or absolute estate. Any other construction would result in not only ignoring the expression, `and not as a limited owner ' which would be against principle of interpretation but also against the historical background of enactment of the section. Whereas if it is read in its entirety with one part throwing light on another then the conclusion is irresistible that a limited owner became a full owner provided she was 609 in possession of the property on the date of enactment of the Act. Property acquired by a female Hindu before the Act came into force comprised, broadly, of inherited property or stridhana property acquired by her from a male or female. Nature of her right in either class of property, unlike males, depended on the school by which she was governed as well as whether it came to her by devolution or transfer from a male or female. This invidious discrimination was done away with after coming into force of 1956 Act and the concept of Hindu widows ' estate or limited estate or stridhana ceased to exist by operation of section 14 read with section 4 of the Act which has an overriding effect. A female Hindu who but for the Act would have been a limited owner become full owner. But the section being retrospective in operation the meaning of female Hindu prior to 1956 has to be understood in the light of Hindu Law as it prevailed then. The section enlarged the estate of those female Hindu who otherwise would have been limited owners. This result follows by reading the first part with the last which uses the expression, 'held by her as full owner thereof and not as a limited owner '. To put it differently a limited owner become a full owner provided she was a female Hindu who was possessed of any property acquired before the commencement of the Act. Therefore, mere being female Hindu was not sufficient. She should have been of that class of female Hindus who could on existence of other circumstances were capable of becoming full owners. Further the Act being applicable by virtue of section 2 to not only Hindus by religion but also to Buddhists, Jains or Sikhs and to any person who was not a Muslim, Christian, Parsi or Jew it was but necessary to use an expression of such wide connotation as female Hindu because by virtue of sub section (3) of the section the word `Hindu ' in any portion of the Act, which includes section 14, the word had to be understood as including not only a person who was Hindu by religion but even others. However, the objective being to remove disparity and injustice to which females were subjected under Hindu Law the section limits its operation to such female Hindus who were limited owners. Reference to the explanation by the learned counsel was also not very apposite. It was appended to widen the meaning of property by adding to it the inherited property, and the property which came to be possessed by a female Hindu in manner mentioned in it. Its effect was that a female Hindu became absolute owner not only in respect of inherited property but even of property received by way of gift or on partition or in lieu of maintenance etc. provided she was a limited owner. And not that it enlarged the estate of even those who were not limited owner. Any other construction would militate against the, otherwise, clear meaning of sub section (1). 610 Although this section has come up for interpretation, by this Court, on various occasions in different context but in none of these cases the Court had occasion to examine the ambit of expression female Hindu and whether it extended to females other than limited owner. Since in every case whether it was decided for or against it was the widow who was alive on the date the Act came into force and she being a limited owner the decision turned on if she was `possessed ' of the property so as to become full owner. For instance in Gummalapura Taggina Matada Kotturuswami vs Setra Veeravva & Ors., [1959] Supp. 1 SCR 968=AIR the widow was held to have acquired rights as the adoption made by her having been found to be invalid she was deemed to be in constructive possession and thus `possession ' of the property on the date the Act came into force. Mangal Singh vs Smt. Rattno, ; was another case where widow 's constructive possession enured to her benefit as she having been dispossession by her collaterals in 1954 and filed a suit for recovery of possession before the Act came into force was held to be `possession ' of the property so as to entitle her to become full owner. Munna Lal vs Raj Kumar, AIR 1962 SC 1495 was a case where the share of the widow was declared in preliminary decree. No actual division of share had taken place, yet the court held that it was property `possessed ' by her on the date the Act came into force. In Sukhram vs Gauri Shankar, ; it was held that a widow was full owner in joint Hindu family property as she became entitled to the interest which her husband had by virtue of Hindu Women Right to Property Act. The Court ruled that even though a male was subject to restrictions qualienation on his interest in joint Hindu family property, but a widow acquiring an interest by virtue of the Act did not suffer such restriction. V. Tulsamma vs Shesha Reddy; , and Bai Vijia vs Thakorbhai Chelabhai, were cases where the widow was `possessed ' of the property in lieu of maintenance, and therefore, she was held to be full owner. In all these cases since the widow was in possession, actual or constructive, on the date the Act came into force she was held to be a female Hindu `possessed ' of the property, and consequently, her limited ownership stood converted into full ownership by operation of law. Even in Eramma vs Verupana (supra) and Kuldeep Singh vs Surain Singh, [1988] Andhra law Times, where the benefit was denied under section 14 the female Hindu were widows but they were not held to be `possessed ' of the property because their possession was not backed by even the remotest vestige of title. in Eramma 's case (supra) the benefit was denied as Hindu Women 's Right to Property Act being not applicable on the date the succession opened she could not be held to be possessed of the property. And in 611 Kuldeep Singh 's case (supra) she had been divested of her interest as a result of transfer made by her. Contest in all these cases was between reversioner and the widow herself or the person claiming through her. Review of these decisions indicates that this Court has consistently taken the view as stated in Bai Vijia vs Thakorbhai Chelabhai,: "For the applicability of sub section, two conditions must co exist, namely, (i) The concerned female Hindu must be possessed of property; and (ii) Such property must be possessed by her as a limited owner. " mention is necessary to be made in this connection about observation in Gulwant Kaur vs Mohinder Singh, ; that the Court in Bai Vijia 's case did not support, to lay down, that, "what was enlarged by sub section (1) of section 14 into a full estate was the Hindu woman 's estate known to Hindu Law. When the Court uses the word, `limited estate ', the words are used to connote a right in the property to which possession of the female Hindu may be traced, but which is not a full right of ownership". Gulwant Kaur 's case was concerned with acquisition of right by wife, on entrustment of property in lieu of maintenance, after 1956, when the concept of widows ' estate or limited estate or even stridhana had ceased to exist. Therefore, what was necessary was being possessed of property, actual or constructive, by female Hindu under some right or title. Whereas Bai Vijia 's case was concerned with acquisition of right in property held in lieu of maintenance before 1956. Therefore a female Hindu could become absolute owner only if she was limited owner. Sub section of section 14 deals with right of female Hindu both before and after the Act came into force. Female Hindu could become absolute owner of property possessed by her on the date the Act came into force only if she was a limited owner whereas she would become absolute owner after 1956 of the property of which she would otherwise have been a limited owner. Reference may be made to Maharaja Pallai Lakshmi Ammal vs Maharaja Pillai T. Pilllai, ; where this Court while examining right of wife put in exclusive possession of the property with the right to take the income for her maintenance was held to have become full owner under section 14(1) as she entered into possession after the death of her husband in 1955 and was in possession in 1956. 612 The Court held that the right to utilise income for her maintenance must be "presumed to have resulted in property being given to her in lieu of maintenance". On this finding the property being possessed on the date the Act came into force as contemplated in the explanation, the widow being a limited owner became a full owner and the gift executed by her in favour of her daughter after 1956 was unexceptionable. The Court, however, while repelling the submission advanced on superficial conflict in Gulwant Kaur and Bai Vijia reiterated what was observed in Gulwant Kaur 's case. As already discussed Gulwant Kaur 's case related to acquisition of property after 1956 whereas in Bai Vijia it was acquired before 1956. The observations made in the two decisions must be understood in that context. Moreover in Gulwant Kaur 's case the ratio was founded on Jagannathan Pillai vs Kunjithapadam Pillai, ; a decision which shall be adverted to later. But it too was concerned with acquisition after 1956. And the bench while discussing scope of section 14(1) observed. "that the limited estate or limited ownership of a Hindu female would enlarge into an absolute estate or full ownership of the property in question in th following fact situation: `Where she acquired the limited estate in the property before or after the commencement of the Act provided she was in possession of the property at the time of the coming into force of the Act on June 17, 1956 '. " None of these decisions, namely, Gulwant Kaur (supra) or Maharaja Pillai (supra ) or Jagannathan Pillai purported to lay down that the Section 14(1) contemplated enlargement of estate prior to 1956 of even those females who were not limited owners. According to Mulla 's Hindu Law (sixteenth edition, paragraph 174) every female who took a limited or restricted estate was known as limited heir. And according to every school except Bombay every female who succeed as an heir whether to a male or female took a limited estate in the property. Even in Bombay a female who by marriage entered into Gotra (family) of the deceased male inherited a limited estate only. And in paragraph 176 it is stated that incident of estate taken by every limited owner was similar to incident of widow 's estate. Mayne 's Hindu Law, (12th edition, paragraph 671) too brings out the same by stating that the typical form of estate inherited by a woman from a male was compendiously known as the widow 's estate. And the limitation which applied to such estate applied to all estate derived by a female by 613 descent from a male or female whether she inherited as daughter, mother, grandmother, sister or as any other relation. Even stridhana property according to Mulla created limited interest in its successors, except in Bombay in certain circumstances and a female inheriting stridhana took a limited interest in it and on her death it passed not to her heirs but to the next stridhan heirs of the female from she inherited. Thus on plain reading of the Section, and its interpretation by this Court in various decisions a female possessed of the property on the date the Act came into force could become absolute owner only if she was a limited owner. This being the legal position it may now be seen if a Hindu widow could transfer or alienate widow 's estate by way of gift prior to 1956 and if so to what extent. And in such alienation what right or interest was created in the alienee. Did she become a limited owner so as to become a full owner under Section 14 of the Act? A Hindu widow succeeding or inheriting any property from her husband or as widow of predeceased son, held limited interest known as Hindu women 's estate, prior to coming into force of 1956 Act, under the Hindu Women 's Right to Property Act, 1937. Since such an estate could not be alienated under Hindu Law except in certain circumstances and for specific purpose the holder of the estate was known as limited owner. The expression `limited owner ' thus could not be understood, except as it was interpreted and understood in Hindu Law. Could the same be said of a female donee or alienee? The Delhi High Court assumed that a female donee was a limited owner, consequently, of she was possessed of the property on the date the Act came into force and her possession was not `without title ', she became an absolute owner. Basis for the decision was construction of the word `possessed ' by this Court in Gummalapura Taggina 's case (supra) wherein it was held that the word was used in widest connotation so that a widow, even if in constructive possession, was entitled to absolute ownership under Section 14 of the Act. Support was also drawn from converse case of Eramma (supra) this Court negatived the claim of widow under Section 14 as her possession on the date the Act came into force was not legal but that of a trespasser. What the High Court lost sight of was that the claim of widow in Gummalapura 's case (supra) was upheld because the adoption made by her having been found to be invalid she was deemed to be in constructive possession on the date the ACt came into force. And Eramma 's case (supra) was concerned with a widow, who claimed to have inherited through son in State of Hyderabad where Hindu Women 's Rights to Property Act did not apply on the date the son died. Consequently, it was held that ``the 614 provisions of Section 14 of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property ' '. The High Court overlooked the vital observation made in earlier part of the judgment to the effect. ``In other words, Section 14(1) of the Act contemplates that a Hindu female who in absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this Section. ' ' Limited owner commonly means a person with restricted rights as opposed to full owner with absolute rights. In relation to property absolute, complete or full ownership comprises various constituents such as the right to posses, actual or constructive, power to enjoy, that is to determine manner of use extending even to destroying, right to alienate, transfer or dispose of etc. Any restriction or limitation on exercise of these rights may result in limited or qualified ownership. For instance restriction on enjoyment of property or its alienation. Such restriction or limitation may arise by operation of law or by deed or instrument. The limited ownership of female Hindu in Hindu Law arose as a matter of law. A Hindu widow, according to different schools, Banaras, Bengal or Mithila and even in Bombay inherited or succeeded to property whether of male or female as a limited owner and held a limited estate only. Nature of such estate was explained by the Privy Council in Janki Ammal vs Narayanaswami, [1916] p. 43 I. A. p. 207 to be, ``her right is of the nature of a right to property, her powers in that character are limited ' '. In Jaisri vs Raj Diwan Dubey, it was observed by this Court that ``when a widow succeeds as heir to her husband the ownership in the property both legal and beneficial vests in her ' '. And the restriction on her power to alienate except for legal necessity is imposed, ``not for the benefit of reversioners but is an incident of estate ' '. Thus a Hindu widow prior to 1956 held the property fully with right to enjoy or even destroy or dispose it of or alienate it but such destruction or alienation should have been impressed with legal or for religious or charitable purposes or for spiritual welfare of the husband. Necessary consequences that flowed from an alienation for legal necessity was that the property vested in the transferee or alienee, and the reversioners were precluded from assailing its validity. In Kamala Devi vs Bachu Lal Gupta, this Court after reviewing various authorities extended this principle to female donee. A gift made within reasonable limits, in favour of daughter even two years after the marriage but in pursuance of promise made at time of the marriage was upheld and 615 the reversioners claim was repelled on permissible alienation under Hindu Law. But what right or title is acquired by the alienee if transfer is against legal necessity or contrary to law? The authorities appear to be at one that such transfer being not void but voidable could be avoided by reversioners including Govt. taking by escheat Collector of Masulipatam vs Cavaly Vencata, [1861] 8 M.I.A. 529. But the widow was held bound by the transfer. In Natwalal Punjabhai & Anr. vs Dadubhai Manubhai & Ors., ; , the Court held as under: "The Hindu Law certainly does not countenance the idea of a widow alienating her property without any necessity merely as a mode of enjoyment as was suggested before us by Mr. Ayyangar. If such a transfer is made by a Hindu widow it is not correct to say that the transferee acquires necessarily and in law an interest commensurate with the period of the natural life of the widow or at any rate with the period of her widowhood. Such transfer is invalid in Hindu Law, but the widow being the grantor herself, cannot derorate from the grant and the transfer cannot also be impeached so long as a person does not come into existence who can claim a present right to possession of the property." Thus if prior to 1956 any alienation was made by a Hindu widow of widow 's estate prohibited by law or being beyond permissible limits, it stripped the widow of her rights and she could not acquire any rights under section 14. And so far as alienees were concerned it could utmost create temporary and transitory ownership precarious in nature and vulnerable in character open to challenge if any attempt was made to cloud reversioner 's interest. Her possession may be good against the world, her right in property may not be impeachable by the widow but her interest qua the reversioner was to continue in possession at the maximum till the lifetime of her donor of transferor. It was life interest, loosely, as the duration of interest created under invalid transfer came to an end not on death of donee or transferee but donor or transferor. So far as the male alienees from limited owners, that is female Hindu prior to 1956, are concerned, it was held by this Court in Radhey Krishan Singh & Ors. vs Shiv Shankar Singh & Ors., that, the alienation could be challenged by the reversioner as there was nothing in the which has taken away such a right. A female alienee did not enjoy better or different status as the Hindu Law applied universally and uniformaly 616 both to male and female alienees. She did not become limited owner or holder of a limited estate as understood in Hindu Law. And the alienation without legal necessity could be assailed by the reversioner. No change was brought about in this regard by the Act. If the alienation was valid i.e., it was for legal necessity or permitted by law then the donee became an owner of it and the right and title in the property vested in her. But if it was contrary to law, as in this case the gift being of entire widow 's estate, then it did not bind the reversioner who could file a suit after the death of the widow. And the appellant cannot claim to have acquired title to the property under the gift deed. Nor had she become a limited owner under Hindu Law which could mature into full ownership when the Act came into force. In fact such possession was not backed any title as against reversioner which could preclude her from bringing the suit for declaration. Reliance was placed on observations in Jagannathan Pillai vs Kunjithapadam Pillai & Ors., ; that, ``To obviate hair splitting, the legislature has made it abundantly clear that whatever be the property possessed by a Hindu female, it will be of absolute ownership and not of limited ownership notwithstanding the position under the traditional Hindu Law ' ', and it was submitted that the appellant satisfied the criteria to entitle her to claim that her estate irrespective of its nature Hindu Law got enlarged under section 14 of the Act. An observation without reference to facts discloses neither the law nor the ratio de cedindi which could be taken assistance of. Factually, the issue was the effect of re transfer by the alienee in favour of the widow after 1956. And the answer was that, ``When the transaction was reversed and what belonged to her was retransmitted to her, what the concerned Hindu female acquired was a right which she herself once possessed namely, a limited ownership (as it was known prior to the coming into force of the Act) which immediately matures into or enlarges into a full ownership in view of Section 14(1) of the Act on the enforcement of the Act. The resultant position on the reversal of the transaction would be that the right, title and interest that the alienee had in the property which was under `eclipse ' during the subsistance of the transaction had re emerged on the disappearance of the eclipse ' '. Truely speaking, the interpretation of sub section (1) of section 14 was no different from the other decisions as is clear from the extracts quoted earlier. It is thus clear that an alienee from a Hindu widow prior to 1956 did not acquire limited estate or widow 's estate nor she was a limited owner who could get any benefit under section 14 of the Act. It was not even a life estate except loosely, as the right to continue in possession was not related with her span of life but of the 617 transferor that is the Hindu widow. The decision of Delhi High Court, therefore, does not lay down the law correctly. The other view taken by Patna, Calcutta and Punjab and Haryana Courts that sub section (1) of section 14 did not extend the benefit of full ownership to female alienees brings out the objective of the section appropriately and correctly. Nor is the decision in Badri Pershad vs Smt. Kanso Devi, ; of any assistance. It was a case where the widow entitled to the interest of her husband got certain property prior to 1956 as a result of arbitration with specific stipulation and she shall have only life interest. This was ignored asnd she was held, rightly, to be the absolute owner whose rights were governed by section 14(1) and not 14(2). Further did not obliterate Hindu Law. What has ceased to be operative after coming into force of the Act under section 4 is text or rule etc. for which privision is made in the Act. And under section 4(2) any law in force immediately before the commencement of the Act ceased to have effect if it was inconsistent with any provision of the Act. Therefore except to the extent provision has been made in section 14, that is, enlargement of the estate of limited owner, the Hindu Law in other regards remained opearative. There is no provision in the Act which deprives reversioners of their rights except to the extent mentioned in section 14. In Radha Rani vs Hanuman Prasad, AIR 1966 SC 216 this Court overruled the decisions of the Allahabad and Patna High Courts that there were no reversioners or reversionary rights after 1956 and held, ``it is open to reversioner to maintain a suit for declaration that an alienation made by a Hindu female limited owner before the coming into force of was without legal necessity and was not binding upon reversioners ' '. Coming now to the issue of adverse possession the High Court was not justified in concluding that it was a question of fact. Possession under a gift deed which was found to be invalid, as it was not permitted under Hindu Law was on general principle contrary to law, and as such could be adverse. When did it become adverse to the donor and what circumstances constitute adverse possession against the donor is an aspect which does not arise for consideration as, even assuming in favour of the appellant, the question is, if adverse possession against donor was sufficient to clothe her with right or title in the property so as to deprive the reversioners of their right to claim the property after the death of the widow? In Radha Rani 's case (supra) this Court held. 618 ``In the case of an alienation by Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the lifetime of the widow. They could wait till her death and then sue the alienee for possession of the alienated property trating the alienation as a nullity. ' ' Therefore, it is obvious that the appellant could not acquire any right by adverse possession against reversioner during lifetime of her mother. Her claim was rightly negatived. Before parting with this case, we express our thanks to Sri Padmanabhan, Senior Advoacate who, on our request rendered valuable assistance. We are thankful to Sri Parekh and Sri Narasimhulu also for their assistance. The result is that this appeal fails and is dismissed. But there shall be no order as to costs. R.P. Appeal dismissed.

The respondent, a Section Officer in the office of the Chief Controller of Import and Exports, was communicated adverse remarks for the year 1984. He made a representation against the adverse remarks but the same was rejected by the Ministry of Commerce by its order dated 6.1.1986. Thereafter he made a Memorial to the President and the Government by its order dated 14.8.86 partially expunged the adverse remarks. The respondent filed a petition before the Central Administrative Trubunal challenging the order rejecting his representation on the ground that it did not contain any reasons. The Tribunal by its order dated 27.7.87 quashed both the order dated 6.1.86 as well as 14.8.86 by holding that the orders were vitiated in law in the absence of reasons. In appeal to this Court by the Union of India, it was contended on behalf of the respondent that the principles of natural justice require the superior authority to records reasons in rejecting the Government servant 's representation made against the adverse remarks as the order of rejection affected the respondent 's right. Allowing the appeal, this Court, HELD: 1. The superior authority while considering the represen 452 tation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. There is no rule or administrative order for recording reasons in reacting such a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reasons. The decision, rejecting such a representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. It does not mean that the competent authority has licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer counter signing the Confidential Reports. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reason. In many cases having regard to infinite variations of circumstances it may not be possible to disclose reasons, for the opinion formed about the work and conduct or character of the Government servant. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In Governmental functioning before any orde is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its ipinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence ali unde before the court to justify its action. [459G H, 460A, E F H, 461A B] Gurdial Singh Fijji vs State of Punjab & Ors., , referred to. 2 The President was under no legal obligation to record reasons in rejecting the respondent 's representation against the adverse remarks. Consequently, the order of the President was not vitiated in law. The Central Administrative Tribunal committed error in quashing the order of the President as well as the order of the Ministry of Com 453 merce dated 6.1.1986. Accordingly, the Tribunal 's order dated 27.7.1987 is set aside. [461C E] 3. The purpose of the rules of natural justice is to prevent miscarriage of justice and the principles of natural justice are applicable to administrative orders if such orders affect the right of a citizen. Arriving at the just decision is the aim of both quasi judicial as well as administrative enquiry, an unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasijudicial enquiry. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the right involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. [458H, 459A D] State of Orissa vs Dr. (Miss) Binapani Dei & Ors., ; ; Mohinder Singh Gill & Ors. vs The Chief Election Commissioner, New Delhi & Ors., ; A. K. Kraipak & Ors. vs Union of India & Ors., and Regina vs Gaming Board for Great Britain ex. p. Benaim and Khaida, ; , referred to. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefor desirable that reasons should be stated. [459F] 4. Ordinarily, Courts and Tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an 454 administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide it is always open to the authority concerned to place reasons before the Court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by communicated to the Government servant. If the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order. [457H, 458A C]

Appeal No. 333 of 1969. (Appeal by Special Leave from the Order dated the 22 8 1968 the Punjab and Haryana High Court in L.P.A. No. 427 of 1968). B. Sen and H.K. Puri, for the appellant S.K. Mehta, P.N. Puri and K.R.Nagaraja. for respondent No. 5. The Judgment of the Court was delivered by BEG, J. This appeal by special leave is directed against the judgement of a Division Bench of the High Court of Punjab & Haryana. dismissing in litnine an appeal against a judgment and order of a 123 learned single Judge of that Court by which a Writ Petition made to the High Court had been granted. We have been taken through the very detailed judgment of the learned single Judge where all the relevant facts are considered in detail. The questions which have been raised before us are: firstly, whether the learned single judge was justified in considering the facts of the case and recording certain findings of fact without having even the advantage ' of the record of the proceedings of the Deputy Chief Settle ment Commissioner, and other officers who had given certain other findings in favour of the appellant; secondly, whether the learned single Judge 's findings of fact are correct; and, thirdly, whether any such apparent error was disclosed in the proceedings of the authorities acting under the Refugees Rehabilitation and Settlement Act as to justify interference by the High Court. It was urged that a mistake apparent on the face of the record has to be one which does not necessitate delving deep into facts on record to discov er it after a re examination of questions of fact which ought to be left to the authorities empowered to give these findings. It is true that the High Court does not sit as a Court of appeal to substitute its own judgment for that of the authorities which are empowered to give their decisions in such cases. Apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record. An error to be apparent must, according to a rough test laid down by this Court in S.L. Hedge & Ors. vs M.B. Tirumale(1), be one which does not take prolonged arguments to bring it to the surface. These propositions are quite well estab lished. It is, however, also a settled rule of practice of this Court not to interfere with the exercise of discretionary powers of High Courts under Article 226 of the Constitution merely because two views are possible upon the facts of a case. Furthermore, in order to induce this Court to inter fere under Article 136 of the Constitution the the question must involve at least a matter of public or general importance or the injustice suffered by an individual due to an error of law should be so gross as to touch the con science of this Court in which case it would be deemed to be one of more than private importance. The case before us is one of a competition between two auction purchasers of the same property put up for sale at two different auctions by the Managing Officer, Amritsar. The first was in favour of the respondent Smt. Rup Kaur, held on 20th August, 1959, and the second in favour of. Beant Singh, the appellant, held on 10th May, 1961, on the assumption that the first auction could be cancelled. The broad material facts, apparent from the original official record, which is now before us, are stated below. At the auction sale on 20th August, 1959, held by the Managing Officer, Amritsar, Rup Kaur 's bid of Rs. 32,000/ , being the highest, was accepted and this fact was communi cated to her by a letter dated (1) [1960] (1) S.C.R. 890. 124 11th September, 1959, sent through her son and general attorney M.S. Grewal. This letter was in the following terms: "Dear Sir/Madam, I am to inform you that your bid for Rs. 32,000/(Rupees thirty two thousands only) in respect of property No. B XII 18 S 14 (Portion I and III) Hide Market Amritsar has been accepted as per terms and conditions of the auction. You have executed an indemnity bond in lieu of the earnest money due from you for adjustment against the compensation admissible on your verified claim(s). For this purpose please furnish if you have not already done at the time of auction the registration number of your compensation application, so as to reach this office within seven days of the issue of this letter. In case you intend to associate any other claimants with you in the purchase of the above mentioned property you should also submit affidavits of association duly completed by you and by each of your asso ciates, as per specimen attached to this office within the period specified above. The balance of the purchase money, if any, found due from you, after scrutiny of your compensation application and that of your associates will be communicated to you in due course. Yours faithfully, Sd/ District Rent & Managing Officer, Amri tsar". The above mentioned letter showed that the contesting re spondent being a displaced person had executed an indemnity bond and had to furnish some information so that adjustment of the compensation due to her may be made against the amount which she had to deposit. What was that information? On the margin of the front page of this letter is a partial ly illegible writing running from top to bottom of the printed full scap sheet on the original record. With some difficulty the following part only can be read: "You are required to submit the following documents regarding provi sional possession within seven days from the receipt of this letter failing which your case wilt be . " After "will be" nothing is found written. It is disputed between the parties whether this writing in hand of the margin existed on the letter received by Smt. Rup Kaur 's attorney. Howev er, even looking at the copy on the original record, the meaning is not at all intelligible. If it existed, it could only confuse and not enlighten the recipient as to what was to be done. An order was then passed, on 8th March, 1961, which runs as follows: 125 "ORDER, Smt. Roop Kaur through her attorney Shri M.S. Grewal the auction purchaser of unit No. B.XIII 18 S 14 (Portion I and III) Hide Market Amritsar has failed to deposit the balance sale price amounting to Rs. 28,000/ in spite of issue of registered notice for 2 1 61. Her bid is, therefore, cancelled and earnest money forfeited. Settlement Officer Jullndur may be requested to deduct Rs. 3200/ as earnest money out of CA No. P/J/I0110. The applicant may be informed accordingly and property disposed of in the next sale programme. Announced. Dated 8 3 61. Sd/ Distt. Rent & Managing Officer, Am ritsar". This order does not state that parties were duly heard. It is disputed whether the notice mentioned in it, alleged to have been sent to Smt. Rup Kaur on 18 12 1960 asking her to. appear on 2 1 1961, was received by the contesting respond ent. ' Even if the learned Single Judge 's finding that it was not received at all by her were not correct, the time fixed for her appearance was too short. Furthermore, the allega tion that she had been called upon, presumably by the letter dated 11 9 1959 to deposit Rs. 28,000/ was, on the face of it, untrue. Despite a report in her favour by the Regional Settlement Commissioner, who investigated the facts and reported to the Chief Settlement Commissioner, that she had not been properly served, justice was denied to her by the Chief Settlement Commissioner on 26 6 1963. The learned single Judge had examined the facts and pointed out other obvious illegalities at earlier stages showing that provisions of Rules 90 and 92 and 105 of the Displaced Persons Compensation & Rehabilitation Rules 1955 were not complied with in cancelling the sale. According to Rup Kaur, who filed some application on 9th May, 1961, when she learnt what had happened, she had also filed an appeal against the order of 8th March, 1961, and made a request for extension of time for payment of the balance of the purchase money, but, on 14th June, 1961, the following order was passed by the Assistant Settlement Commissioner on her appeal: "This is an appeal against the order of Distt. Rent & Managing Officer Amritsar dated 8 3 61 whereby he cancelled the appellants bid and forfeited the earnest money on account of his failure to deposit the balance price of property No. B. XIII 18 S 14 (Portion I & III) Hide Market Amritsar purchased by him at the open auction within the specified time. For all intents and purposes this appeal is for extension of time to deposit the balance purchase price. 126 Extension of time is an administrative matter for which no judicial action is called for. Dismissed. Inform the appellant accordingly". The learned Single Judge pointed out that the above mentioned order of the Appellate authority was also void for contravening the provisions of Rule 105 as interpreted by a Full Bench of the High Court of Punjab in Hira Lal Kher vs The Chief Settlement Commissioner, New Delhi(1), so that it was the duty of the Settlement Commissioner, to fix a date for hearing and to inform the 'appellant it was not discharged. Apparently, the appeal was decided without informing the contesting respondent Smt. Rup Kaur when her appeal would be heard. Rule 105, which was thus contra vened, provides: "105. Provisions of Order XLI of the Code of Civil procedure apply to appeals and revisions. Except as otherwise expressly provided in the Act or in these rules, the procedure laid down in order XLI of the Code of Civil Procedure 1908 (Act V of 1908) shall,. so far as may be applicable, apply to the hearing and disposal of ap.peals and revisions and the Act". Furthermore, extension of time was not just an "adminis trative matter". The question whether Rup Kaur had made out a case for it or not should have been quasi judicially considered and decided. Indeed, if provisions of the Civil Procedure Code were applied to these appeals and extension of time was only a relief sought, the discretion to grant it or refuse it had to be judicially and judiciously exercised. The order was made on an apparently wrong assumption. The learned single Judge had restored the position to what it was when the letter dated 11th September, 1959, was received by M.S. Grewal, the son and general attorney of Rup Kaur, and had directed the Managing Officer to proceed in accordance with Law. After having heard Learned Counsel for both sides at some length, we are not satisfied that any injustice has been done to the appellant who will, no doubt, get back whatever money he may have deposited. We think, that, in the circumstances of the case, it could not be said that the learned single Judge 's conclusion, that provisions of Rule 90 had not been complied with in dealing with the case of Rup Kaur, who had suffered injustice, was erroneous. The learned Judge had stated his conclusion as follows: "A mere reading of the above quoted provision shows that one of the conditions precedent entitling the Rehabilitation Authorities to cancel the sale and to forfeit the initial deposit is the service on the auction purchaser of a notice specified in sub rule (11), sub rule (12) or sub rule (13) of rule. The petitioner admittedly complied with the requirement of the notice under sub rule (12) of rule 90 (Annexure "F") and no notice in terms of the requirements of subrule (13) of rule 90 was ever admittedly issued to or (1) 127 served on the petitioner. In these circumstances, the Rehabilitation Authorities has no jurisdiction whatsoever for cancelling the sale in favour of the petitioner on account of alleged non payment of the balance of the purchase price and for forfeiting the initial deposit made by her. In this view of the matter, the impugned orders cancelling the sale in favour of the petitioner and forfeiting her initial deposit are wholly without jurisdiction and cannot possibly be sustained. Errors of law in the orders of the Chief Settlement Commissioner and the order Rehabilitation Authorities are apparent on their face inasmuch as the said orders have been passed in absolute ignorance of the statutory provisions referred to above". We, therefore, see no reason to interfere with the view taken by the High Court. Consequently, we dismiss this appeal. But, in the circumstances of the case, the parties will bear their own costs. M.R. Appeal dis missed.

The property under dispute was put up for sale at two different auctions by the Managing Officer, Amritsar. The Rehabilitation authorities cancelled the bid of the first auction purchaser Smt. Rup Kaur, holding that she had failed to deposit the sale price in spite of issuing her a regis tered notice, and at the. second auction the appellant 's bid was accepted. In a petition filed under article 226, a Single Judge of the High Court found the findings of facts to be erroneous and the impugned order void, and granted a writ in favour of Smt. Rup Kaur. On appeal, the decision was upheld by a Division Bench of the High Court. Dismissing the appeal the Court, HELD: (1) The High Court does not sit as a court of appeal to substitute its own judgment for that of the au thorities which are empowered to give their decisions, but apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record. An error to be apparent must be one which does not take prolonged arguments to bring it to the surface. The Single Judge 's conclusion that provisions of Rule 90 of the Displaced Persons Compensation and Rehabilitation Rules, 1955, had not been complied with, was not erroneous. [123C D. 126E F] S.L. Hegde & Ors. M.B. Tirumale [1960] (1) SCR 890, ap plied Hiralal Kher vs The Chief Settlement Commissioner New Delhi , referred to. (2) It is a settled rule of practice of this Court not to interfere with the ' exercise of discretionary powers of High Courts under article 226 of the Constitution merely be cause two views are possible upon the facts of a case. For interference by this Court, the question must involve at least a matter of public or general importance or the injus tice suffered by an individual due to an error of law should be so gross as to touch the conscience of this Court in which case it would be deemed to be one of more than private importance. [123E F]

Civil Appeal No. 163 of 1951. Appeal by special leave from the Judgment dated the 10th April. 1951, of the High Court of Judicature for the State of Punjab at Simla (Kapur J.) in Civil Revision No. 286 of 1950 arising out of Order dated the 24th March, 1950, of the Court of Subordinate Judge, 1st Class, Delhi, in an Application under Section 33 of Indian Arbitration Act, X of 1940. Rattan Lal Chawla (K. N. Agarwal, with him) for the appellant. Som Nath Chopra for the respondent. February 25. The Judgment of the court was deliv ered by FAZL ALI J. This is an appeal by special leave against the judgment of the Punjab High Court upholding the decision of a Subordinate Judge of Delhi relating to a petition filed by the appellant company under section 33 of the Indian Arbitration Act against the respondents, 503 The material facts are these. On the 22nd April, 1947, the appellant company insured a car belonging to the first respondent and issued a policy which fully sets out the terms and conditions of the agreement relating to the insur ance. The first respondent left his car in a garage at Lahore and came away to India on the 31st July, 1947. Subsequently, he learned about the loss of his car, and sent a legal notice dated the 18th March, 1948, through his advocate Mr. A.R. Kapur to the Head Office of the company at Calcutta, claiming a sum of Rs. 7,000 for the loss of the car. On the 10th April, 1948, Mr. Kapur received a letter from the Branch Manager of the Company 's office at Amrit sar asking for information regarding certain matters stated in the letter. This information appears to have been sup plied on the 30th April, 1948. On the 26th May, 1948, the company 's Branch Manager at Amritsar wrote to the first respondent repudiating the liability of the company for the loss of the car on the ground that the loss was "due to communal riots which were going on in the whole of Punjab" and was not covered by the agreement of insurance. A simi lar letter was written again by the Branch Manager on the 3rd July, 1948, to the first respondent, and another letter was written by one Mr. Rattan Lal Chawla representing him self to be counsel for the company, to Mr. A.R. Kapur, on the 1st August, 1948. On the 21st November, 1949, the first respondent wrote a letter to the Branch Secretary of the Company 's office at Calcutta, stating that his claim was valid and nominating Mr. T.C. Chopra, Assistant Manager, Lakshmi Insurance Company Ltd., Delhi, as arbitrator on his behalf and requesting the company to appoint another person as arbitrator on its behalf. Thereafter, the company pre sented an application on the 29th December, 1949, in the court of the Senior Sub judge, Delhi, under section 33 of the Indian Arbitration Act, against the first respondent and Mr. T.C. Chopra, the arbitrator, who is the second respond ent in this appeal, praying for 504 (1) a declaration to the effect that the reference to arbitration and the appointment of respondent No. 2 as sole arbitrator was illegal; (2) a declaration to the effect that if the respondent No. 2 made any award it would not be binding on the company;and (3) an injunction restraining the respondents Nos. 1 and 2 from taking any proceeding in the matter and the respond ent No. 2 from making any award. Upon this petition, notice was issued to the respond ents, and an injunction was issued directing them not to file any award till the date of the next hearing, which was fixed for 31st January, 1950. On the 4th February, 1930, the first respondent wrote to the second respondent (the arbitrator) that since no arbitrator had been appointed by the company and since the company had refused to appoint any arbitrator, he (Mr. Chopra) was to act as the sole arbitra tor. On the 6th February, 1950, Mr. Chopra wrote to inform the insurance company that he had been appointed sole arbi trator and asked the company to send the statement of its case and to produce all the evidence on the 14th February, 1950. On the 10th February, 1950, the insurance company filed a petition before the Subordinate Judge, Delhi, pray ing that the respondents be stopped from proceeding further in the matter so that its application under section 33 may not become infructuous. On the 11th February, the Subordi nate Judge issued notice to the respondents fixing the 17th February as the date of hearing and passed the following order: "Moreover (till) the decision of this application the arbitrator should not give or pronounce his award but should continue the proceedings. " On the 14th February, 1950, the second respondent pronounced his award after making a note to the following effect: " Mr. G.R. Chopra, the counsel of the defendants, sent a telephonic message at 12 A.M. requesting extension till 1 P.M. I agreed and accordingly I waited for 505 him and the plaintiff with his counsel also waited up to 1 P.M. Nobody turned up on behalf of the defendants. I commenced the proceedings and took the statement of the plaintiff and the documents that he had produced." He made a further note at the end of the award to this effect : "As after the giving of the award a notice was served upon me not to give the award, I have not sent any formal letter to the parties informing them of the award and its costs. " On the 24th March, 1950, the Subordinate Judge passed an order on the company 's application under section 33, dis missing it and holding that the terms of clause 7 of the agreement "were comprehensive enough to include the points of disputes between the parties now and as such are triable by the arbitrator and not by the court. " The Subordinate Judge concluded his order by observing: "I, therefore, hold that the reference to the arbitra tion of the differences is perfectly valid and the points raised by the parties to this application with regard to the abandonment of claim and its becoming irrecoverable are to be decided by the arbitrator. " The judgment of the Subordinate Judge was upheld in revision by the Punjab High Court and the company has now preferred an appeal to this court by special leave. The points that were urged on behalf of the appellant in this appeal are these: (1) that the arbitration clause had ceased to be opera tive and the question as to the existence and validity of the arbitration agreement was triable by the court under section 33 of the Arbitration Act and not by the arbitrator; and (2) that the award was invalid and not binding on the appellant, because it was pronounced in spite of the order of the court dated the 11th February, 1950, directing the arbitrator not to pronounce his award. 506 Clause 7 of the policy of insurance rims as follows : "All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single arbitrator to the decision of two arbi trators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or in case the arbitrators do not agree of an umpire appointed in writing by the arbitrators before entering upon the reference. The umpire shall sit with the arbitrators and preside at their meeting and the making of an award shall be a condition precedent to any right of action against the company. if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein con tained then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. " It will be noticed that this clause provides among other things that if the company disclaimed liability to the insured for any claim under the policy and such claim was not within twelve calender months from the date of such disclaimer referred to arbitration, then the claim should be deemed to have been abandoned and was not recoverable. The case of the company is that it disclaimed liability for the loss of the car on three successive occasions, namely, on the 26th May, 1948, the 3rd July, 1948, and the 1st August, 1948. The first respondent however did not take any action in regard to the appointment of an arbitrator until the 21st November, 1949, i.e, until more than 12 months after even the last disclaimer by the company. For this reason, the claim put forward by the first respondent must be deemed to have been abandoned and he cannot recover anything from the company. On the other hand. the case of the first respond ent, which 507 is set out in. his affidavit dated the 17th February, 1950, is that there was never any valid disclaimer by the company of its liability. The position that he took up was that the Branch Manager of the company had no authority to disclaim the liability, and it could have been disclaimed only by a resolution of the company. Now these being the respective contentions of the parties, the question is whether the point in dispute fell to be decided by the arbitrator or by the court under section 33 of the Arbitration Act. Section 33 is to the following effect: "Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedi ent, it may set down the application for hearing on other evidence also. and it may pass such orders for discovery and particulars as it may do in a suit. " The question to be decided is whether the point on which the parties are in dispute is a difference "arising out of the policy" in terms of clause 7 of the policy. The test for determining such a question has been laid down in a series of cases and is a simple one. The test is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract is necessary. then the matter must come within the scope of the arbitrator 's jurisdiction. In the present case, both the parties admit the contract and state that they are bound by it. Indeed, the appellant company, in order to make good its contention, is obliged to rely and does rely on that part of clause 7 of the policy which states that if the company should disclaim liability and the claim be not referred to arbitration within 12 months of such disclaimer, the claim shall be deemed to have been abandoned. Evidently, the company cannot succeed without calling in aid this clause and 508 relying on it. Again, the first respondent does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made. The position therefore is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party, also relying on that clause, says that there has been no breach but on the other hand the requirements of that clause have been fulfilled. Thus, the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement. It is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdic tion to decide it, the parties having made him the sole judge of all differences arising out of the policy. A large number of cases were cited before us on behalf of the parties, but it is unnecessary to refer to them, since the question which arises in this appeal is a simple one and is covered by the statement of law which is to be found in the decision of this Court in A.M. Mair & Co. vs Gordhandass Sagarmull C), and in a series of English author ities, some of which only may be referred to. In Heyman vs Darwins, Ltd. (2) the law on the subject has been very clearly stated in the following passage : "An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for exam ple, the making of such a contract is illegal)the arbitra tion (1)[1950] S.C.R. 792. (2) [1941] 1 A.E.R.337,343 509 clause cannot operate, for on this view the clause ' itself is also void. however, the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them as to whether there has been a breach by one side or the other, or as to whether circumstances have arisen which have discharged one or both parties from fur ther performance, such differences should be regarded as differences which have arisen 'in respect of, ' or 'with regard to, ' or 'under ' the contract, and an arbitration clause which uses these, or similar expressions, should be construed accordingly. " In Macaura vs Northern Assurance Co. (1), the appellant had insured a large quantity of timber against fire and the greater part of the timber having been de stroyed by fire, he sued the insurance company to recover the loss but the action was stayed and the matter was re ferred to arbitration in pursuance of the conditions con tained in the policy. The arbitrator held that the claimant had no insurable interest in the goods insured and disal lowed the claim. One of the points raised in the case was that the arbitrator had no jurisdiction to decide the mat ter, but that contention was rejected by Lord Sumner in these words: "The defendants do not repudiate the policy or dispute its validity as a contract; on the contrary, they rely on it and say that according to its terms, express and implied, they are, relieved from liability: see Stebbing 's case(2), Woodall vs Pearl Assurance Co.(3). It is a Fallacy to say that they assert the policy to be null and void." In Stebbing vs Liverpool and London and Globe Insurance Company Limited(2), to which reference was made by Lord Summer, the policy of insurance contained a clause referring to the decision of an arbitrator "all differences arising out of this policy ". It also (1) (3) , (2) , 66 510 contained a recital that the assured had made a proposal and declaration as the basis of the contract, and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers. One of the conditions provided that if any false declaration should be made or used in support of a claim all benefit under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to deter mine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading C.J. observed as fol lows: " If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact inducing the contract, of which the force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy. " The main contention put forward on behalf of the appel lant is that the points in dispute fall outside the juris diction of the arbitrator, firstly because the existence of the arbitration agreement is challenged, and secondly, because the sole object of the application under section 33 of the Arbitration Act is tO have the 511 effect of the arbitration agreement determined. In our opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither party 's case that there is no arbitration agreement in the policy. On the ,:other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists,but that is very different from saying that the agreement never existed or was void ab initio and therefore is to be treated as non existent. Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both,parties construe it in the same way. The real question between them is whether the first respondent has or has not complied with the conditions of the agreement. But this question does not turn on the effect of the agreement. This is the view which has substantially been taken by the High Court, and in our opinion it is correct. The second point urged before us is that the award is invalid, since it was made in spite of the court 's injunc tion directing the arbitrator not to pronounce any award. This point however does not, in our opinion, fall within the scope of this appeal. The application under section 33 of the Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced. In that applica tion, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the applica tion was filed. The learned counsel for the appellant made an application before us praying for the amendment of the petition under section 38 by introducing certain 512 additional facts and adding a prayer for declaring the award to be invalid, but it was rejected/by us. It should be stated that as early as the 24th March, 1950, the Subordi nate Judge in dismissing the appellant 's petition under section 33, made the following observations : "During the pendency of the arbitration proceedings the arbitrator pronounced the award. . The award has now been filed in the court of section Mohinder Singh, Sub Judge, 1st class, Delhi. Any objection against the award can be filed there. In this application in which there is no prayer for setting aside the award, which exists, I do not think it proper to decide the question of the validity of the award. " In our opinion, the Subordinate Judge correctly indi cated the course which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the courts below for amending the petition under section 33, the company cannot ask this court to go into the validity of the award by widening the scope of the original petition. This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under section 33 to be amended now and to decide a question involving investigation of facts with out having the benefit of the judgments of the courts below. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. Agent for respondent No. 1.: S.D. Sekhri.

The appellant company insured a car belonging to re spondent No. 1 and issued a policy which contained, inter alia, the following terms : "All differences arising out of this policy shall be referred to the decision of an arbitra tor to be appointed by the parties. . If the company shall disclaim liability to the insured for any claim here under and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable. " The car was lost, and the company through its Branch Manager disclaimed liability on three different dates. The insured did not take any action in regard to the appointment of an arbitra tor until more than twelve months after the last disclaimer by the company. The case of the company was that the in sured must be deemed to have abandoned his claim by virtue of the contract of insurance policy while 'the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no au thority to disclaim the liability and it could have been disclaimed only by the resolution of the company. The company presented the present application under see. 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company. It was contended on its behalf that the arbitration clause had ceased to be 65 502 operative and the question as to the existence and validity of the Arbitration agreement was triable by the court under sec. 33 of the Arbitration Act and not by the arbitrator. Held, (i) that the point on which the parties were in dispute was a difference "arising out of the policy ", because recourse to the contract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them as there was no contention raised in the present case by either of the parties that there was no contract entered into at all or that it was void ab initio, and therefore the arbitrator had jurisdic tion to decide the matter referred to him. A contention that the arbitration agreement has ceased to be applicable or that it no longer subsists will not oust the jurisdiction of the arbitrator. (ii) No question of determining the effect of the arbitra tion within the meaning of sec. 33 arose because there was no dispute between the parties as to what it meant. A.M. Mair and Co. vs Gordhandas Sagarmull [1950] (S.C.R. 792), Heyman vs Darwins Ltd. ([1941] 1 A.E.R. 337), Mecaura vs Northern Assurance Co. ([1925] A.C. 619), Stebbing vs Liverpool, London and Globe Insurance Co. Ltd. ([1917], 2 K.B. 433) referred to.

Appeal No. 123 of 1952. Appeal against the Judgment and Order, dated the 22nd March, 1951, of the High Court of Judicature at Calcutta (Harries C.J. and Banerjee J.) , in Reference No. 2 of 1951 in Civil Rules Nos. 20 and 21 of 1950. December 11. The Judgment of the Court was delivered by PATANJALI SASTRI C.J. This is an appeal from a judgment, of the High Court of Judicature at Calcutta declaring certain provisions of the West Bengal Land Development and Planning Act, 1948, (hereinafter referred to as the "impugned Act ") unconstitutional and void. The impugned Act was passed on October 1, 1948, primarily for the settlement of immigrants who had migrated into the Province of West Bengal due to communal disturbances in East Bengal,and it 560 provides for the acquisition and development of land for public purposes ' including the purpose aforesaid. A registered Society called the West Bengal Settlement Kanungoe Co operative Credit Society Ltd., respondent No. 4 herein, was authorised to undertake a development scheme, and the Government of the State of West Bengal, the appellant herein, acquired and made over certain lands to the society for purposes of the development scheme on payment of the estimated cost of the acquisition. On July 28, 1950, the respondents I to 3, the owners of the lands thus acquired, instituted a suit in the Court of the Subordinate Judge, 11 Court at Alipore, District 24 Parganas, against the society for a declaration that the impugned Act was void as contravening the Constitution and that all the proceedings taken thereunder for the acquisition aforesaid were also void, and of no effect and for other consequential reliefs. The State of West Bengal was subsequently impleaded as a defendant. As the suit involved questions of interpretation of the Constitution respondents 1 to 3 also moved the High Court under article 228 of the Constitution to withdraw the suit and determine the constitutional question. The suit was accordingly transferred to the High Court and the matter was heard by a Division Bench (Trevor Harries C.J. and Banerjee J.) who, by their final judgment, held that the impugned Act as a whole was not .unconstitutional or void save as regards two of the provisions contained in section 8 which, so far as it is material here, runs as follows: "A declaration under section 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and, after making, such declaration, the Provincial Government may acquire the land and thereupon the provisions of the Land Acquisition Act, 1894, (hereinafter in this section referred to as%, the said Act), shall, so far as may be, apply: Provided that (b) in determining the amount of compensation to be awarded for land acquired in pursuance of this 561 Act the market value referred to in clause first of sub section (1) of section 23 of the said Act shall be deemed to be the market value of the land on the date of publication of the notification under sub section (1) of section 4 for the notified area in which the land is included subject to the following condition, that is to say if such market value exceeds by any amount the market value of the land on the 3 1 st day of December, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the said notification, the amount of such excess shall not be taken into consideration. " The provision making the declaration of the Government conclusive as to the public nature of the purpose of the acquisition and the limitation of the amount of compensation so as not to exceed the market value of the land on December 31, 1946, were declared ultra vires the Constitution and void. The Attorney General, appearing for the appellant, rightly conceded that inasmuch as article 31(2) made the existence of a public purpose a necessary condition of acquisition the existence of such a purpose as a fact must be established objectively and the provision in section 8 relating to the conclusiveness of the declaration of Government as to the nature of the purpose of the acquisition must be held unconstitutional but he contended that the provision was saved by article 31(5)of the Constitution which provides: "Nothing in clause (2) shall affect (a) the provisions of any existing _ law other than a law to which the provisions of clause (6) apply, or. . . " Clause (6) reads thus: "Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and, thereupon, if the President public notification so certifies, it shall not be called question in any court on the ground that it contract the provisions of clause (2) of this article, 562. contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935. " It was argued that the impugned Act having been passed within 18 months before the commencement of the Constitution and not having been submitted to the President for his certification, it was a law to which the provisions of clause (6) did not apply and, therefore, as an existing law, the impugned Act was not affected by clause (2) of that article. The argument is manifestly unsound. Article 31(6) is intended to save a State law enacted within 18 months before the commencement of the Constitution provided the same was certified by the President while, article 31(5) saves all existing laws passed more than 18 months before the commencement of the Constitution. Reading the two clauses together, the intention is clear that an existing law passed within 18 months before January 26, 1950, is not to be saved unless it was submitted to the President within three months from such date for his certification and was certified by him. The argument, if accepted, would reduce article 31(6) to ameaningless redundancy. The only serious controversy in the appeal centred round the constitutionality of the " condition " in proviso (b) to section 8 limiting the compensation payable so as not to exceed the market value of the land on December 31, 1946. The Attorney General, while conceding that the word " compensation " taken by itself must mean a full and fair money equivalent, urged that, in the context of article 31(2) read with entry No. 42 of List III of the Seventh Schedule, the term was not used in any rigid sense importing equivalence in value but had reference to what the legisla ture might think was a proper indemnity for the loss sustained by the owner. Article 31(2) provides: No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken sesion of or acquired for public purposes under law authorising the taking of such possession acquisition, unless the law provides for 563 compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. and entry 42 of List III reads thus Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given. It is argued that the term " compensation " in entry 42 could not mean full cash equivalent, for then, the power conferred on the legislature to lay down the principles on which compensation is to be determined and the form and the manner in which such compensation is to be given would be rendered nugatory. On the other hand, the entry showed that the compensation to be "given " was only " such compensation " as was determined on the principles. laid down by the law enacted in exercise of the power, and, as the concluding words used in article 31(2) are substantially the same as in the entry, the Constitution, it was claimed, left scope for legislative discretion in determining the measure of the indemnity. We are unable to agree with this view. While it is true that the, legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are 74 564 to be neglected, is a justiciable issue to be adjudicated by the court. This, indeed, was not disputed. Reference was made to certain Australian cases where the opinion was expressed that the terms of compulsory acquisition of property were matters of legislative policy and judgment. The decisions largely turned on the absence of any constitutional prohibition in regard to deprivation of private property without compensation as in the Fifth Amendment of the American Constitution and on the use of the words " just terms " instead of " compensation " in section 51 (xxxi) of the Commonwealth Constitution which conferred power on the Parliament to make laws with respect to " the acquisition of property on just terms from any State or person. . " (cf. Grace Brothers Pty. Ltd. vs The Commonwealth(1). Those decisions, therefore, are of no assistance to the appellant here. Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the latter part of the proviso to section 8 limits the amount of compensation so as not to exceed the market value of the land on December 31, 1946, no matter when the land is acquired. Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came in. to force, the fixing of the market value on December 31,1946, as the ceiling on compensat I ion, without reference to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of article 31 (2). The fixing of an anterior date for the ascertainment of value may not, in certain circumstances, be a violation of the constitutional requirement as, for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date, which might have no relation to the value of the land when it is acquired, may be, many years later, cannot but be regarded as arbitrary. The learned Judges (1) ; 565 below observe that it is common knowledge that since the end of the war land, particularly around Calcutta, has increased enormously in value and might still further increase very considerably in value when the pace of industrialisation increases. Any principle for determining compensation which denies to the owner this increment in value cannot result in the ascertainment of the true equivalent of the land appropriated. We accordingly hold that the latter part of proviso (b) to section 8 of the impugned Act which fixes the market value on December 31, 1946, as the maximum compensation for lands acquired under it offends against the provisions of article 31 (2) and is unconstitutional and void. The appeal is dismissed with costs. Appeal dismissed. Agent for respondents Nos. 1, 2 and 3: section C. Banerjee. Agent for the intervener: G. H. Rajadhyaksha.

The West Bengal Land Development and Planning Act, 1948, passed primarily for the settlement of immigrants who had migrated into West Bengal due to communal disturbances in East Bengal provides for the acquisition and development of land for public purposes including the purpose aforesaid: Held, that the provisions of section 8 of the West Bengal Act XXI of 1948 making the declaration of the Government. conclusive as to the public nature of the purpose of the acquisition and the limitation of the amount of compensation so as not to exceed the market value of the land on December 31, 1946, are ultra vires the Constitution and void 559 (i)inasmuch as article 31(2) of the Constitution made the existence of a public purpose a necessary condition of acquisition, the existence of such a purpose as a fact must be established objectively ; (ii)that in view of the fact that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31, 1946, as the coiling on compensation without reference to the value of the land at the time of acquisition, is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirements of article 31(2) (iii)the Act is not saved by article 31(5) from the operation of article 31(2) as it was not certified by the President as provided for by article 31(6). Held, further, that while entry No. 42 of List III of the Seventh Schedule confers on the legislature the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner of the property appropriated, article 31(2) requires that such principles must ensure that what is determined as payable must be "compensation", that is, a just equivalent of what the owner has been deprived of. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable issue to be adjudicated by the Court.

ivil Appeal No. 3535 of 1982. From the Judgment and Order dated 16.3. 1982 of the Calcutta High Court in F.M.A No. 282 of 1981 & C.R. No. 3842 (m) of 1980. T.S. Krishnamurthy Iyer, G.L. Sanghi, G.S. Chatterjee and D.P. Mukherjee for the Appellant. L.N. Sinha, M.P. Jha, K.C. Mittal and A.K. Chopra for the Respondents. The Judgment of the Court was delivered by KANIA, J. This is an appeal directed against the judg ment of a Division Bench of the High Court of Calcutta in Appeal from Original Order No. 282 of 1981 with C.R. No. 3842 (m) of 1980. The relevant facts for the purpose of this appeal can be shortly stated. In August 1969, the appellant before us obtained a money decree in the High Court at Calcutta against the judgment debtor Maharaj Kumar Maley Chand Mahatab. On 31st July 1970 the appellant filed a petition for execution of the decree, numbered as Title Execution Case No. 19 of 1970. On 3rd August 1970 attachment was levied in execution on open land 1040 belonging to the judgment debtor admeasuring about 19 Kathas at 10A, Diamond Harbour Road, and portion of premises No. 2 Judges Court Road, now, numbered as 6/1D, Diamond Harbour Road and 2/A, Judges Court Road, 24 Paraganas respectively. On 14th September 1970, the judgment debtor sold a portion of the attached property admeasuring a little over to 11 Kathas to one Bharat Shamshere Jung Bahadur Rana. On 29th March, 1972 Bharat Shamshere ,lung Bahadur Rana sold a portion of the said land admeasuring a little over 9 Kathas (referred to hereinafter as "the said property") to Prabhat ilal Chowdhary and others who are the respondents in the present appeal. On 9th May, 1972 the aforesaid Execution Petition, namely. Title Execution Case No. 19 of 1970 was dismisssed for default. On 16th September, 1975, on an application by the appellant, the said Title Execution Case No. 19 of 1970 was restored. On a petition dated 26th Sep tember, 1975 the said property was again attached. Thereaf ter. a proclamation for sale of the said property was issued under Order 21 Rule 66 of the Code of Civil Procedure. The respondents Prabhatilal Chowdhary & Others filed a petition under Order 21 Rule 58 of C.P.C. for releasing the said property from attachment. This application was registered as Misc. Case No. 8 of 1978. On 11th August, 1980 the said Misc. Case No. 8 filed by Prabhatilal and Others was dis missed. On 16th March, 1982 the aforesaid appeal from Order No. 282 of 1981 and C.R. NO. 2843(m) of 1980 was allowed by the Calcutta High Court. It is this decision allowing the said appeal which is assailed before us. Mr. Sanghi, learned counsel for the appellant urged that the sale of the said property by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the said property by the said Bharat Shamshere Jung Bahadur Rana to the respondent were both effected during the subsistence of the attachment. Although the attachment ceased on the dis missal of the said Title Execution Case on 9th May, 1972, the said attachment was revived by reason of restoration of the said case on 16th September, 1975. It was submitted by him that, in view of the provisions of Section 64 of the Code of Civil Procedure, the sale of the said property by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the same by the Bharat Shamshere Jung Baha dur Rana to the respondent are both void as against the appellant decree holder. Section 64 of the Code of Civil Procedure runs as follows: "Where an attachment has been made, any private transfer 1041 or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attach ment. " There is an Explanation to this Section, but it is not material for our purposes. Order 21 Rule 57 as it stood prior to its amendment in 1976 and as amended by the Calcutta High Court as follows: "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the appli cation or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease unless the Court shall make an order to the contrary. " The words "unless the Court shall make an order to the contrary" have been added by way of amendment to the said Rule made by the Calcutta High Court. In view of the plain wording of the aforesaid Rule, it is clear that when the aforesaid Title Execution Suit was dismissed for default, the attachment levied ceased as no order to continue that attachment was made by the Court. The question as to what is the effect of the restoration of the said Title Execution Suit, that is, whether the said resto ration would restore the original attachment and, if so, to what extent. In this connection, it has been held by the Calcutta High Court that where an order for releasing property from attachment is set aside on appeal, the effect is to make the property still subject to the attachment and to restore the state of things which had been disturbed by the order of release. It makes no difference whether the order for releasing the attachment under Order 21 Rule 63 of the Code of Civil Procedure is passed in appeal or revision. (See Sushila Bala Dasi vs Guest Keen Williams, Ltd., I.L.R. 1949 Vol. 1 Calcutta, p. 177. A Division Bench of the Madras High Court in Annapurna Patrani & Ors. vs Lakshmana Kara & Anr., A.I.R. 1950, Ma dras, p. 740 has held that where in execution of decree property is attached 1042 but the petition for execution is dismissed for default and on appeal the order of dismissal for default is set aside, the effect of the appellate order is to restore the order attaching property and the trial Court would have to proceed with the execution application from the stage at which it had interrupted it by dismissing it for default. The appel late order restoring attachment would relate back to the date when the attachment was first made and would render invalid any alienation in the interim period. A similar view has been taken by a learned Single Judge of the Bombay High Court in Pradyut Natwarlal Shah vs SuryakantN. Sangani & Ors., A.I.R. 1979 Bombay, p. 166. However, in the present case the restoration of the Title Execution Case was not made on an appeal or revision, whereby order of dismissing the said suit for default was set aside, but the said suit has been restored on an appli cation made for restoration. Such an order for restoration cannot be equated with an order passed on appeal or in 2revision setting aside the dismissal. In this case we are not called upon to consider what is the effect of an order of dismissing the Execution Application for default being set aside on appeal or revision, and we do not propose to express any opinion in that connection. In a case which is more relevant for determination of the question before us, namely, Tavvala Veeraswami vs Pulim Ram anna & Ors., A.I.R 1935 Madras, p. 365 which was decided by a full Bench of the Madras High Court an order dismissing a suit for default was set aside on an application for that purpose. It was held that where an order dismissing a suit for default is set aside on an application for that purpose, the suit remains as it was on the day when it was dismissed and all proceed ings taken up upto that date must be deemed to be in force when the dismissal is set aside and all interlocutory orders will be revived on the setting aside of the dismissal. Similarly, an order for attachment of property will also be revived. In that case an attachment before judgment was raised on security being furnished. The suit in which the attachment was levied was dismissed for default, but was restored on an application made for that purpose and decreed and the decreeholder sought to enforce the security bond. It was held that on the restoration of the suit, all ancillary orders were restored without any further order, and that therefore, the security bond given for the raising of at tachment before judgment was also restored and the decree holder was entitled to enforce the security bond. It was observed by Beasley C.J., who delivered the judgment with which other learned Judges concurred, as follows: "It does not seem to be reasonable that the plaintiff in a 1043 suit who has got an attachment before judgment should have again, after the restoration of the suit after its dismissal for default, to apply to the Court for a fresh attachment and that having done so, the defendant should have to apply to raise the attachment by producing a surety or sureties. The commonsense view of the matter is that all ancillary orders should be restored on the suit 's restoration without any further orders. " In the present case both, the sale by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale by Bharat Shamshere Jung Bahadur Rana to the respondent, were effected during the subsistence of the attachment and before the Title Execution Case was dismissed for default. In our view, even if a doubt were to be entertained as to whether an order for restoration of the suit or execution applica tion would have the effect of restoring the attachment retrospectively so as to affect alienations made during the period between dismissal of the suit or execution applica tion and the order directing restoration, it is clear that an order of restoration would certainly restore or revive the attachment for the period during which it was in sub sistence, namely, prior to the dismissal of the suit or execution application. The learned counsel for the respondent drew our atten tion to the decision of the Division Bench of the Calcutta High Court in the case of Patringa Koer vs Madhavanand Ram & Ors., Calcutta Law Journal, 1911, Vol. 14 p. 476 where it was held that a revival of execution proceedings does not operate as revival of the attachment so as to prejudice the rights of strangers who have in the interval acquired a title to the property. The reversal of judicial orders leaves unaffected the rights of strangers, bona fide pur chasers, whether under execution sale or under private sale, who have acquired title on the assumption that such orders were valid in law. A careful reading of this decision shows it is of no assistance to the case of the respondent because the judgment makes it clear that what was really held was that in the absence of statutory provisions to the contrary, the court cannot cancel the order of dismissal for default of an execution application with retrospective effect so as to prejudice the title that might have been acquired in the interval by a stranger, when the property was admittedly not in the custody of the Court. This decision might have helped the respondents if the alienations in question had been effected during the interval between the dismissal of the Title Execution Case and its restoration. But, in the present case, the alienations were effected 1044 when the attachment was subsisting as we have already point ed out and hence this decision is of no assistance to the respondents. We are not called upon to consider as to wheth er the aforesaid decision lays down good law or as to what would have been the effect of the restoration of the Title Execution Case had the alienations been effected during the aforesaid interval and we do not propose to say anything in this regard. In our view, the Division Bench of the Calcutta High Court was in error in taking the view, in the judgment appealed against, that by reason of the dismissal of the said Title Execution Case, the attachment came to an end and the order of restoration of the said case would not affect any alienation made before the restoration although such alienations might have been made during the subsistence of the attachment. We may mention that our attention was drawn to the amendment of Rule 57 of Order 21 made by the Calcutta High Court, but in our view that amendment merely provides that although under Rule 57 of Order 21 the attachment would cease on an order dismissing the application for execution it is open to the Court to make an order to the contrary. which would mean that the Court could make an order to continue the attachment for some time. The amendment, howev er, is of no relevance in the case before us. In the result, the appeal is allowed, the impugned judgment set aside and the order of First Subordinate Jude at Alipore in Misc. Case No. 8 of 1978 which was set aside by the Calcutta High Court restored. The respondents must pay to the appellant the cost of the appeal. N.P.V. Appeal allowed.

In criminal writ petition No. 292 of 1986, preferred by detenu 's wife on various grounds, the Vacation Judge ordered his release on parole till further orders. However, when the petition came up for hearing before the Division Bench on 3rd March, 1987 the counsel confined his submissions to one aspect only that arose out of the proceedings in Court i.e., that the period of parole should not be added to the period of detention. That plea was rejected and the petition dis missed on 22nd April, 1987. In the present writ petition filed thereafter on April 27, 1987 it was averred that the counsel did not give up the other points in the earlier writ petition, and had the Court indicated that the petitioner 's submission would not find favour with it he would have proceeded to argue the case. Further, two more points were raised: (1) that the detenu had been prejudiced in making an effective representation to the Board against his detention in the absence of the sum mons issued under section 108 of the Customs Act to him, which document had not been supplied in spite of demand, and (2) that since the detenu was already in custody at the time the order of detention was served the said order was liable to be quashed. Dismissing the writ petition, HELD: 1. It is common experience that when several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the hearing. In the instant case, only one point was argued at the previous hearing. It was open to the counsel to make full submissions on all aspects arising in the writ petition. That having not been done it was improper on his part to raise such allegations. [844A, D] 841 2.1 The detenu had been called by the Customs Authori ties for investigation on February 27, 1986. A statement had been made by him under section 108 of the Customs Act and there after he was taken into custody and produced before the Additional Chief Metropolitan Magistrate, who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention under section 3(1) of the COFEPOSA Act for one year came to be made on February 28, 1986 he was in jail at the most for one day. Chargesheet had not been submitted against him in the crimi nal case. [847FG] 2.2 Since there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, it could not be held that summons under section 108 of the Customs Act was in existence. Once the summons was out in existence it could not be said that there was prejudice to the detenu on account of the authority 's withholding the summons. [846D] 3.1 The fact that the detenu was already in detention did not take away the jurisdiction of the detaining authori ty in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detain ing authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. [851D] 3.2 In the instant case, there was sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made yet he was satisfied that his preventive detention was necessary. The order of detention was, therefore, not viti ated. [851E] Binod Singh vs District Magistrate, Dhanbad, ; ; Rameshwar Shaw vs District Magistrate Burdwan, ; ; Kartic Chandra Guha vs State of West Bengal, ; Dr. Ramakrishna Rawat vs District Magistrate, Jabalpur, Vijay Kumar vs State of Jammu and Kashmir, ; ; Merugu Satyanarayana vs State of Andhra Pradesh, ; and Suraj Pal Sahu vs State of Maharashtra, ; , referred to.

Appeal No. 288 of 1958. Appeal by Special Leave from the judgment and order dated December 3, 1956, of the Punjab High Court (Circuit Bench) at Delhi in Letters Patent Appeal No. 25 D of 1956, arising out of the judgment and order dated April 9, 1956, of the said High Court (Circuit Bench) at Delhi in Civil Writ No. 8 D of 1955. N. C. Chatterjee and R. section Narula, for the appellant. M. C. Setalvad, Attorney General for India, B. Sen and T. M. Sen, for the respondent 1958. December 12. The Judgment of the Court was delivered by section K. DAS, J. This is an appeal by special leave and the only question for decision is if the order of the President dated October 1, 1954, removing the appellant from service with effect from that date is invalid, as claimed by the appellant, by reason of a contravention of the provisions of article 311(2) of the Constitution. The short facts are these. The appellant stated that he joined permanent Government service on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which be held then was a post in the Central Service, Class 11. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949, he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August, 1951, he was posted as 894 and Deputy Chief Controller of imports, Calcutta, and continued to work in that post till September, 1952. He then took four months ' leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and lie made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated: Normally I am due to retire in April 1956 but I find it difficult to reconcile myself to the new conditions of service under which I am now placed to work. I find that I would not be wasting only myself but I would also not be doing full justice to the ' interest of my Government and country in my present environment. Under the circumstances, I pray that I may be permitted to retire from the 1st May, 1953. " On February 14, 1953, the appellant amended his leave application and said that he had been informed by the I Administrative Branch of the Development Wing that the question of permission to retire was under consideration, because of some difficulty with regard to the inclusion in the service of the appellant the period during which he held the, post of Assistant Secretary, Frontier Corps; therefore be said that he might be granted leave on full average pay for four months with effect from February 15, 1953, if the decision to give him permission to retire was likely to be postponed beyond May 1, 1953. He amended his leave application by making the following prayer: " Leave may be sanctioned for four months from. the 15th February, 1953, or up to the date from which I am permitted to retire whichever may be earlier ". On March 10, 1953, the appellant was informed that he could not be allowed to retire at that stage, but the Ministry had agreed to grant him leave from February 16, 19 3, to April 30, 1953. The appellant then went on leave and on February 25, 1953, he 895 wrote to Government to say that he was contemplating to join the service of Messrs. Albert David & Co. Ltd., Calcutta, and for that purpose he was accepting a course of training in that Company for two months. In April, 1953, the appellant accepted service under Messrs. Albert David & Co. Ltd., and he wrote to Government to that effect on April 6, 1953. On June 16, 1953, the appellant was charged with hav ing violated r. 15 of the Government Servants ' Conduct Rules and Fundamental Rule 11. Rule 15 of the Government Servants ' Conduct Rules states, inter alia, that a Government servant may not without the previous sanction of Government engage in any trade or undertake any employment other than his public duties. Fundamental Rule 11 says in effect that unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him. A. P. Mathur, Joint Chief Controller of Imports, was asked to hold an enquiry against the appellant on the charge mentioned above. The appellant submitted an explanation and an enquiry was held by A. P. Mathur in due course. The Enquiring Officer submitted his report on September 12, 1953, in which he found that the appellant had, contrary to the rules governing the conditions of his service, accepted private employment without previous sanction of Government during the period when he was still in Government service. On April 14, 1954, the appellant was asked to show cause in accordance with the provisions of article 311(2) of the Constitution. As the whole of the argument in this case centres round this show cause notice, it is necessary to set it out in full Sir, I am directed to say that the Enquiry Officer appointed to enquire into certain charges framed against you has submitted his report ; a copy of the report is enclosed for your information. On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a 896 major penalty, viz., dismissal, removal or reduction should be enforced on you. Before he takes that action, he desires to give you an opportunity of showing cause against the action proposed to be taken. Any representation which you may make in that connection will be considered by him before taking the proposed action. Such representation, if any, should be made, in writing, and submitted so as to reach the undersigned not later than 14 days from the receipt of this letter by you. Please acknowledge receipt of this letter. Yours faithfully, Sd. section Bhoothalingam, Joint Secretary to the Government of India. " The appellant then showed cause and on October 1, 1954, the President passed an order in which it was stated that after taking into consideration the report of the Enquiring Officer and in consultation with the Public Service Commission, the President found that the charge had been proved against the appellant and the appellant was accordingly removed from service with effect from that date. The appellant then moved the Punjab High Court by a petition under article 226 of the Constitution in which his main contentions were (a) that he had no opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of article 311 (2) of the Constitution and (b) that he had asked for leave preparatory to retirement and accepted service under Albert David & Co. Ltd. in the bona fide belief that Government had no objection to his accepting such private employment. Dulat, J., who dealt with the petition in the first instance, held against the appellant on both points. He found that there was no contravention of the provisions of article 311 (2) of the Constitution and on the second point, he held that on the facts admitted in the case there was no doubt that the appellant had accepted private employment in contravention of the rules governing the conditions of his service and there was little substance 897 in the suggestion of the appellant that he had no sufficient opportunity to produce evidence. The second point no longer survives, and the only substantial point for our consideration is the alleged contravention of article 311(2) of the Constitution. Mr. N. C. Chatterjee, who has appeared on behalf of the appellant, has submitted before us that the show cause notice dated April 14, 1954, stated all the three punishments mentioned in article 311 (2) and inasmuch as it did not particularise the actual or exact punishment proposed to be imposed on the appellant, the notice did not comply with the essential requirements of article 311 (2) of the Constitution; therefore, the final order of removal passed on October 1, 1954, was not a valid order. In the recent decision of Khem Chand vs Union of India (1) this Court explained the true scope and effect of article 311 (2) of the Constitution. It was stated in that decision that the reasonable opportunity envisaged by article 311 (2) of the Constitution included (a) an opportunity to the Government servant to deny his guilt and establish his innocence, (b) an opportunity to defend himself, and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority after the enquiry is over and after applying its mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant. It is no longer in dispute that the appellant did have opportunities (a) and (b) referred to above. The question before us is whether the show cause notice dated April 14, 1954, gave the appellant a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Mr. N. C. Chatterjee has emphasised two observations made by this Court in Khem Chand 's case (1). He points out that in connection with opportunity (c) aforesaid, this Court observed that a Government (1) ; 113 898 servant can only make his representation if the competent authority after the enquiry is over and after applying its mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant. Mr. Chatterjee emphasises the observation " one of the three punishments ". Secondly, he has drawn our attention to the observations made in the judgment of the Judicial Committee in High Commissioner for India and High Commissioner for Pakistan vs I. M. Lall (1), which observations were quoted with approval in Khem Chand 's case (2). One of the observations made was: " In the opinion of their Lordships no action is proposed within the meaning of the sub section " (their Lordships were dealing with sub section (3) of section 240 of the Government of India Act, 1935) " until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on." Mr. Chatterjee emphasises the expression " actual punishment " occurring in the said observations. It is to be remembered, however, that both in I. M. Lall 's case, (1) and Khem Chand 's case (1) the real point of the decision was that no second notice had been given to the Government servant concerned after the enquiry was over to show cause against the action proposed to be taken in regard to him. In I. M. Lall 's case (1) a notice was given at the same time as the charges were made which directed the Government servant concerned to show cause " why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce, etc. " In other words, the notice was what is usually called a combined notice embodying the charges as well as the punishments proposed. Such a notice, it was held, did not comply with the requirements of sub section (3) of section 240. In Khem Chand 's case (2) also the report of the Enquiring Officer was approved by the Deputy Commissioner, Delhi, who imposed the (1) (1948) L.R. 75 I.A. 225,242. (2) ; 899 penalty of dismissal without giving the Government servant concerned an opportunity to show cause against the action proposed to be taken in regard to him. In Khem Chand 's case (1) the learned SolicitorGeneral appearing for the Union of India sought to distinguish the decision in I. M. Lall 's case (2) on the ground that the notice there asked the Government servant concerned to show cause why he should not be dismissed, removed or reduced or subjected to any other disciplinary action, whereas in Khem Chand 's case(1) the notice issued to the Government servant before the enquiry mentioned only one punishment, namely, the punishment of dismissal. Dealing with this argument of the learned Solicitor General this Court said (at p. 1100): " A close perusal of the judgment of the Judicial Committee in I. M. Lall 's case will, however, show that the decision in that case did not proceed on the ground that an opportunity had not been given to 1. M. Lall against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage bad been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment. " Therefore, the real point of the decision both in I. M. Lall 's case (2) and Khem Chand 's case (1) was that no opportunity had been given to the Government servant concerned to show cause after a stage had been reached when the charges had been established and the competent authority bad applied its mind to the gravity or otherwise of the charges proved and tentatively proposed the punishment to be given to the Government servant for the charges so proved. It is true that in some of the observations made in those two decisions the words " actual punishment " or particular punishment " have been used, but those (1) ; (2) (1948) L.R. 75 I.A. 225, 242. 900 observations must, however, be taken with reference to the context in which they were made. Let us examine a little more carefully what consequences will follow if article 311(2) requires in every case that the " exact " or " actual " punishment to be inflicted on the Government servant concerned must be mentioned in the show cause notice issued at the second stage. It is obvious, and article 311 (2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him; for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but merits a lesser punishment, such as removal or reduction in rank. If it is obligatory on the punishing authority to state in the show cause notice at the second stage the " exact " or " particular " punishment which is to be inflicted, then a third notice will be necessary if the State Government accepts the representation of the Government servant concerned. This will be against the very purpose for which the second show cause notice was issued. Then, there is another aspect of the matter which has been pointedly emphasised by dulat, J. If in the present case the show cause notice had merely stated the punishment of dismissal without mentioning the other two punishments, it would still be open to the punishing authority to impose any of the two lesser punishments of removal or reduction in rank and no grievance could have been made either about the show cause notice or the actual punishment imposed. Can it be said that the enumeration of the other two punishments in the show cause notice invalidated the notice ? It appears to us that the show cause notice in the present case by mentioning the three punishments gave a better and fuller opportunity to the appellant to show cause why none of the three punishments should be inflicted on him. We desire to 901 emphasise here that the case before us is not one in which the show cause notice is vague or of such a character as to lead to the inference that the punishing authority did not apply its mind to the question of punishment to be imposed on the Government servant. The show cause notice dated April 14, 1954, stated in clear terms that " the President is provisionally of opinion that a major penalty, namely, dismissal, removal or reduction, should be enforced on you. " Therefore, the President had come to a tentative conclusion that the charge proved against the appellant merited any one of the three penalties mentioned therein and asked the appellant to show cause why any one of the aforesaid three penalties should not be imposed on him. We see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him. We turn now to certain other decisions on which learned counsel for the appellant has relied. They are: Jatindra Nath Biswas vs R. Gupta (1), Dayanidhi Rath vs B. section Mohanty (2) and Lakshmi Narain Gupta vs A. N. Puri (3). In the case of Jatindra Nath Biswas (1) no second show cause notice was given and the decision proceeded on that footing. Sinha, J., observed, however: "Where there is an enquiry, not only must he have an opportunity of contesting his case before the (1) (2) A.I.R. 1955 Orissa 33. (3) A.I.R. 1954 Cal. 3.35 902 enquiry, but, before the punishment is imposed upon him, he must be told about the result of the enquiry and the exact punishment which is proposed to be inflicted." Mr. Chatterjee has emphasised the use of the word " exact ". As we have pointed out, the decision proceeded on a different footing and was not rested on the ground that only one punishment must be mentioned in the second show cause notice. The decision in Dayanidhi Rath 's case (1) proceeded on the footing that if the punishment that is tenatively proposed against a civil servant is of a graver kind, he can be awarded punishment of a lesser kind; but if the punishment that is tentatively proposed is of a lesser kind, there will be prejudice in awarding a graver form of punish ment. What happened in that case was that the show cause notice stated that in view of the Enquiring Officer 's findings contained in the report with which the Secretary agreed and in consideration of the past record of the Government servant concerned, it was proposed to remove him from Government service; in another part of the same notice, however, the Government servant concerned was directed to show cause why the penalty of dismissal should not be inflicted for the charges proved against him. Thus, in the same notice two punishments were juxtaposed in such a way that it was difficult to say that the punishing authority had applied its mind and tentatively come to a conclusion as to what punishment should be given. It was not a case where the punishing authority said that either of the two punishments might be imposed in the alternative; on the contrary, in one part of the notice the punishing authority said that it was proposed to remove the Government servant concerned and in another part of the notice it said that the proposed punishment was dismissal. In Lakshmi Narain Gupta 's case (2) the notice called upon the petitioner to show cause why disciplinary action, such as reduction in rank, withholding of increments, etc., should not be taken against him. The learned Judge pointed out (1) A.I.R. 1955 Orissa 33. (2) A.I.R. 1954 Cal 335. 903 that there were seven items of penalties under r. 49 of the Civil Service (Classification, Control and Appeal) Rules, and the notice did not indicate that the punishing authority had applied its mind and come to any tentative conclusion as to the imposition of any of the punishments mentioned in that rule. On that footing it was held that there was no compliance with the provisions in article 311(2) of the Constitution. We do not, therefore, take these decisions as laying down that whenever more than one punishment is mentioned in the second show cause notice, the notice must be held to be bad. If these decisions lay down any such rule, we must hold them to be incorrect. We have come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him, and we are further of the view that the show cause notice dated April 14, 1954, in the present case did not contravene the provisions of article 311 (2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This disposes of the principal point in controversy before us. Mr. Chatterjee referred to certain mistakes of reference in the order of the President dated October 1, 1954. Instead of referring to r. 15 of the Government Servants ' Conduct Rules, r. 13 was referred to. There was also a reference to para. 5 of a particular Government order which prohibited Government servants from taking up commercial employment within two years of retirement. Mr. Chatterjee submitted that this particular order did not apply to Government servants in Class 11. We do not think that the inaccurate references were of any vital importance. In effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated r. 15 of the Government Servants ' Conduct Rules and r. II of the Fundamental Rules; he accepted private employment without sanction of Government while he was still in Government service. That was the basis for the enquiry against 904 the appellant and that was the basis for the order of removal passed against him. For these reasons we hold that there is no merit in the appeal which must accordingly be dismissed with costs. Appeal dismissed.

The Ajmer (Sound Amplifiers Control) Act, 1952, was enacted by the Ajmer Legislative Assembly which, by section 21 Of the , was empowered to make laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List. The respondents were prosecuted under section 3 Of the Act for breach of the conditions of the permit granted for the use of sound amplifiers. On a reference under section 432 of the Code of Criminal ' Procedure, the judicial Commissioner of Ajmer held that the Act fell within Entry NO. 31 of the Union List and not within Entry No. 6 of the State List as was claimed by the State, and, therefore, was ultra vires the State Legislature. Held, that the pith and substance of the impugned Act was the control of the use of amplifiers in the interests of health and also tranquillity and thus the Act was substantially within the powers conferred by Entry No. 6 and conceivably Entry No 1 of the State List, and did not fall within Entry No. 31 of the Union List, even though the amplifier, the use of which is regulated and controlled, is an apparatus for broadcasting or communication. Accordingly, the Act was intra vires the State Legislature.

Appeal No. 616 of 1963. Appeal from the judgment and order dated September 21, 1961 of the Bombay High Court (Nagpur Bench) at Nagpur in Special Civil Application No. 2 of 1961. section G. Patwardhan, G. L. Sanghi, J. B. Dadabhanji, O. C. Mathur and Ravinder Narain, for the appellant. A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Shah, J. The first respondent Tukaram was a protected lessee within the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951 hereinafter called "the Berar Act" in respect of certain land at Monza Karwand in the Vidarbha Region (now in the State of Maharashtra). The appellant who is the owner of the land served a notice under section 9(1) of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation, and submitted an application to the Revenue Officer under section 8(1)(g) of the Berar Act for an order determining the tenancy. The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958. In the meantime the Governor of the State of Bombay (the Vidarbha region having been incorporated within the State of Bombay by the ) issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants (Prosection from Eviction and Amendment of Tenancy Laws) Act, 1957. By section 3 of Act 9 of 1958 a ban was imposed against eviction of tenants, and by section 4 all proceedings pending at the date of the commencement of the Act, or which may be instituted during the period the Act remained in force, for termination of any tenancy and for eviction of tenants were to be stayed on certain conditions set out in that section. Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 99 of 1958, which may hereinafter be referred to as "the Tenancy Act". The appellant applied on May 15, 1958 to the Naib Tahsildar, Chikhli for an order for "restoration of possession" of the land. By order dated August 2, 1960 the Naib Tahsildar ordered "restoration of possession of the land" to the appellant. 597 In appeal the Sub Divisional Officer, Buldana set aside the order of the Naib Tahsildar because in his view the application was not maintainable in that the appellant had failed to comply with the requirements of section 38 of the Tenancy Act. The Revenue Tribunal confirmed the order of the Sub Divisional Officer. The appellant then moved the High Court of Judicature at Bombay praying for a writ or direction quashing the order of the Sub Divisional Officer, Buldana and of the Revenue Tribunal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar. The High Court set aside the order of the Naib Tahsildar, the Sub Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment. The appellant appeals to this Court, with certificate under article 133 (1)(c) of the Constitution ranted by the High Court. The contention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should not have reopened the inquiry as directed in its judgment. It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined. The land was originally in the Vidharbha region which before the Bombay Reorganisation, Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act. The first respondent was a protected lessee in respect of the land under section 3 of the Berar Act. Section 8 of the Act imposed restrictions. on termination of protected leases. It was provided that notwithstanding any agreement, usage, decree or order of a court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein. Even if the landlord desired to obtain possession of the land for bona fide personal cultivation, he had to obtain an order in that behalf under section 8(1)(g). Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy. A tenant served with the notice under sub section (1) could under sub section (3) apply to the Revenue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice. Sub sections (4), (5), (6), (7) and (8) dealt with the proce 598 dure and powers of the Revenue Officer. The landlord had, after serving a notice under section 9 (1), to obtain an order under section 8 (1) (g) that possession was required by him bonafide for personal cultivation. Section 1 9 of the Berar Act prescribed the procedure for ejectment of a protected lessee. Sub section (1) provided: " A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under sections 8 or 9." Sub section (2) enabled a tenant dispossessed of land otherwise than in accordance with the provisions of the Act to apply to the Revenue Officer for restoration of the possession. By sub section (3) it was provided : "On receipt of an application under sub section (1) or (2), the Revenue Officer may, after making such summary enquiry as he deems fit, pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effect to his order." The appellant had obtained from the Revenue Officer concerned an order tinder section 8 ( 1) (g) determining the tenancy effective from April 1, 1958. But before that date Ordinance 4 of 1957 was promulgated. This Ordinance was later replaced by Bombay Act 9 of 1958. By section 4 of Bombay Act 9 of 1958 all proceedings either pending at the date of commencement of the Act or which may be instituted (during the period the Act remained in force) for termination of the tenancies were Stayed. The Tenancy Act (Bombay Act 99 of 1958) which was brought into force on December 30, 1958 repealed Bombay Act 9 of 1958 and the Berar Act and made diverse provisions with regard to protection of tenants. By section 9 of the Tenancy Act it was provided that no tenancy of any land shall be terminated merely on the round that the period fixed for its duration whether by agreement or otherwise had expired, and by section 19 it was provided that notwithstanding any agreement, usage, decree or order of a court of law, the tenancy of any land held by a tenant shall not be terminated unless certain conditions specified therein were fulfilled. Section 36 of the Tenancy Act set up the procedure to be followed, inter alia, for obtaining possession from a tenant after determination of the tenancy, and sub section (2) enacted that no landlord shall obtain possession of any ]an(], dwelling house 599 or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. By sub section (3) it was provided that on receipt of an application under sub section (1) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit provided that where an application under sub section (2) is made by a landlord in pursuance of the right conferred on him under section 38, the Tahsildar may first decide as preliminary issue, whether the conditions specified in cls. (c) and (d) of sub section (3), and cls. (b), (c) and (d) of sub section (4) of that section are satisfied. That takes us to section 38. By the first sub section, as it was originally enacted, it was provided : " Notwithstanding anything contained in section 9 or 19 but subject to the provisions of sub sections (2) to (5), a landlord may after giving to the tenant one year 's notice in writing at any time within two years from the commencement of this Act and making an application for possession under sub section (2) of section 36, terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fide requires the land for cultivating it personally :" (Amendment of this sub section by Maharashtra Act 5 of 1961 is not material for the purpose of this appeal.) By sub section (3) it was provided that the right of a landlord to terminate a tenancy under sub section (1) shall be subject to the conditions contained in cls. (a) to (e) (which need not, for the purpose of this appeal, be set out). Sub section (4) imposed on the right of the landlord certain restrictions in terminating the tenancy. A landlord may not terminate a tenancy (a) so as to reduce the area with the tenant below a certain limit, or (b) contravene the provisions of the Bombay Prevention of Fragmentation Act, or (c) where the tenant is a member of a co operative farming society, or (d) where the tenant is a co operative farming society. Sub section (4A) dealt with the special case of a member of armed forces ceasing to be a member of the serving force. Sub sections (5), (6) and (7) made certain incidental provisions. By sub section (1) of section 132, amongst others, the Berar Act and Bombay Act 9 of 1958 were repealed. By sub section (2) it was provided that nothing in sub section (1) shall, save as expressly provided in the Act, affect or be deemed to affect (i) any right, title, interest, obligation or liability already acquired, accrued before the commencement of the Act or (ii) any legal proceeding or remedy in respect of any, such right, title, interest, obligation or liability or anything done or suffered before the commencement of the Act, and any such 7Sup./65 10 600 proceedings shall be instituted, continued and disposed of, as if Act 99 of 1958 had not been passed. Sub section (3) provided : "Notwithstanding anything contained in sub section (1) (a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act, and (b). . . . As from December 30, 1958 the Berar Act ceased to be in operation. But by sub section (2) of section 132 any right, title, interest, obligation or liability already acquired before the commencement of the Tenancy Act remained enforceable and any legal proceedings in respect of such right, title, interest, obligation or liability could be instituted, continued and disposed of as if Bombay Act 99 of 1958 had not been passed. But to this reservation an exception was made by sub section (3) that a proceeding for termination of tenancy and ejectment of the tenant or for recovery or restoration of possession of the land under any repealed provisions, pending on the date of the commencement of Act 99 of 1958 before a Revenue Officer. was to be deemed to have been instituted and pending before the corresponding authority under the Tenancy Act and was to be disposed of in accordance with the provisions of that Act. Therefore when a proceeding was pending for termination 'of the tenancy and ejectment of a tenant the proceeding had to be disposed of in accordance with the provisions of the Tenancy Act, notwithstanding anything contained in sub section If the expression "proceedings pending on the date of commencement of this Act" in section 132(3)(a) be literally interpreted, a somewhat anomalous situation may result. An application under section 19 of the Berar Act pursuant to an order under sections 8 and 9, instituted before the Tenancy Act was enacted, will have to be disposed of in accordance with the provisions of the Tenancy Act, but if no proceeding under section 19 be commenced the proceeding would not be governed in terms by sub section (3) and would by the operation of sub section (2) be instituted and continued as if the Tenancy Act was not passed. This problem engaged 601 the attention of the Bombay High Court in Jayantraj Kanakmal Zambad and Another vs Hari Dagdu and Others(1), in which the facts were closely parallel to the facts in the present case. An order determining the lease under sections 8 & 9 of the Berar Act was obtained by the landlord before the Tenancy Act was enacted, and at a time when Bombay Act 9 of 1958 was in force, and proceedings were started by the landlord for obtaining possession from the tenant, after the Tenancy Act was brought into force. The High Court held that the application by the landlord for possession against the tenant whose tenancy was determined by an order under the Berar Act has, if instituted after the Tenancy Act was brought into force, to be decided according to the provi sions of the latter Act by virtue of section 132(3) and not under the Berar Act, and that an order for termination of the lease under section 8 does not come to an end until an order is made under sub s.(3) of section 19. The Court therefore in that case avoided the anomaly arising from the words of sub section (3) by holding that an order made under section 8 or under section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding, and it comes to an end when an order under section 19 of the Act is made. The High Court in the judgment under appeal, following the decision in Jayantroj Kanakmal Zambad 's case(1) held that the application filed by the appellant purporting to be under section 36(7) of the Tenancy Act must be regarded as an application under section 19 of the Berar Act and therefore be deemed to 'be a continuation of the application under sections 8 & 9 of the Berar Act. which was pending at the date when the Tenancy Act was brought into force, and to such an application section 38 (1) did not apply, but by virtue of sub section (3) cl. (a) of section 132 the application had to be disposed of in accordance with the provisions of the Tenancy Act, thereby making the provisions of section 38(3) and section 38(4) applicable thereto. Mr. Patwardhan for the appellant has, for the purpose of this appeal, not sought to canvass the correctness of the view of the judgment in Jayantraj Kanakmal Zambad 's case, but has submitted that the High Court has not correctly interpreted section 132(3) of the Tenancy Act. The appellant had acquired a right to obtain possession of the land on determination made by the Revenue Officer by order dated July 2, 1957 and a legal proceeding in respect thereof could be instituted or continued by virtue of sub section (2) of section 132 as if the Tenancy Act had not been passed. The exception made (1) I.L.R. F.B. 602 by sub section (3) of section 132 in respect of proceedings for termination of the tenancy and ejectment of a tenant which are pending on the date of the commencement of the Tenancy Act is limited in its content. Proceedings which are pending are to be deemed to have been instituted and pending before the corresponding authority under the Act and must be disposed of in accordance with the provisions of the Tenancy Act. By the use of the expression " shall be disposed of in accordance with the provisions of this Act" apparently the Legislature intended to attract the procedural provisions of the Tenancy Act, and not the conditions precedent to the institution of fresh proceedings. To hold otherwise would be to make a large inroad upon sub section (2) of section 132 which made the right, title or interest already acquired by virtue of any previous order passed by competent authority unenforceable, even though it was expressly declared enforceable as if the Tenancy Act had not been passed. The High Court was, in our judgment, right in holding that the application filed by the appellant for obtaining an order for possession against the first respondent must be treated as one under section 19 of the Berar Act, and must be tried before the corresponding authority. Being a pending proceeding in respect of a right acquired before the Act, it had to be continued and disposed of as if the Tenancy Act had not been passed [sub section (2)], subject to the reservation in respect of two matters relating to the competence of the officers to try the proceeding and to the procedure in respect of the trial. The appellant had obtained an order determining the tenancy of the first respondent. That order had to be enforced in the manner provided by section 19(1) i.e. the Revenue Officer had to make such summary inquiry as be deemed fit, and had to pass an order for restoring possession of the land to the landholder and to take such steps as may be necessary to give effect to his order. Since the repeal of the Berar Act the proceeding pending before the Revenue Officer would stand transferred to the Tahsildar. The Tahsildar was bound to give effect to the rights already acquired before the Tenancy Act was enacted, and in giving effect to those rights he had to follow the procedure prescribed by the Tenancy Act. Between sections 19(3) of the Berar Act and 36(3) of the Tenancy Act in the matter of procedure there does not appear to us any substantial difference. Under the Berar Act a summary inquiry has to be made by the Revenue Officer, whereas under the Tenancy Act the Tahsildar must hold an inquiry and pass such order (consistently with the rights of the parties) as he deems fit. But to the trial of the application for enforcement of the right acquired under the 603 Berar Act, section 38 of the Tenancy Act could not be attracted. Section 38 authorises the landlord to obtain possession of the land from a tenant, if the landlord bona fide required the land for cultivating it personally. In order to effectuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36 within the prescribed period. The section is in terms prospective and does not purport to affect rights acquired before the date on which the Tenancy Act was brought into force. The High Court was therefore also right in observing "The notice referred to in sub section (1) of section 38 could not obviously have been given in respect of proceedings which were pending or which are deemed to have been pending on the date of the commencement of this Act. It does not also appear that it was the intention of the Legislature that such proceedings should be kept pending for a further period until a fresh notice as required by sub section (1) of section 38 had been given. For the same reasons, the proviso to sub section (2) of section 36 will not apply in such cases. " But we are unable to agree with the High Court that sub sections (3) and (4) of section 38 apply to an application filed or deemed to be filed under section 19 of the Berar Act. The High Court appears to be of the view that by the use of the expression "shall be disposed of in accordance with the provisions of this Act" it was intended that "all the provisions of the Act, which would apply to an application made under sub section (2) of section 36, would also apply to application which are deemed to have been made under this section", and therefore it followed that sub sections (3) and (4) of section 38 applied to all applications for obtaining possession of the land for personal cultivation made under section 19 of the Berar Act which were pending or which were deemed to have been pending on the date of the commencement of the Tenancy Act. It may be noticed that sub section (3) of section 38 in terms makes the right of the landlord to terminate a tenancy under sub section (1), subject to conditions mentioned therein. If there be no determination of the tenancy by notice in writing under sub section (1), sub section (3) could have no application. The words of sub section (4) are undoubtedly general. But the setting in which the sub section occurs clearly indicates that it is intended to apply to tenancies determined under section 38(1). Large protection which was granted by section 19 of the Tenancy Act 604 has been withdrawn from tenants who may be regarded as con tumacious. By section 38(1) a landlord desiring to cultivate the land personally is given the right to terminate the tenancy, but the right is made subject to the conditions prescribed in sub section (3) and the legislature has by sub section (4) (a) sought to make an equitable adjustments between the claims of the landlord and the tenant. If sub section (4) be read as imposing a restriction on the determination of all tenancies, it would imply grant of projection to a contumacious tenant as well. The Legislature could not have intended that in making equitable adjustments between the rights of landlords and tenants contumacious tenants who have disentitled themselves otherwise to the protection of section 19 should still be benefited. Again if sub section (4) be read as applying to determination of every agricultural tenancy, its proper place would have been in sub section (3) of section 36, and the proviso thereto would riot have been drafted in the manner it is found in the Act. By cls. (c) & (d) of sub section (4) tenants who are cooperative societies or members of cooperative societies are not liable to be evicted, and if the opening words of sub section (4) are intended to be read as applicable to termination of all tenancies, whatever the reason, we would have expected some indication to that effect in section 19 of the tenancy Act. Again inclusion of sub sections (2) to (5) in the non obstante clause in sub section (1) supports the view that the expression "In no case a tenancy shall be terminated" being. part, of an integrated scheme means that a tenancy determined "or reasons and in the manner set out in sub section (1) of section 38 must be determined consistently with sub section (4), but where the determination of the tenancy is not under sub section (1) of section 38, sub section (4) has no application. The application made by the appellant is undoubtedly one for ejectment of the tenant and for recovery of possession. The Naib Tahsildar was competent to entertain the application. It is true that the application was orginally filed under sections 8 & 9 of the Berar Act on the ground that the, landlord required the land bona fide for his personal cultivation, but once an order was passed under section 8 (1) (g) by the Revenue Officer, the only inquiry contemplated to be made on an application under section 19 was a summary inquiry before an order for possession was made in favour of the landlord. At that stage, there was no scope for the application of the conditions and restrictions prescribed by sub sections (3) & (4) of section 38, for, in our view, those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation. 605 We therefore modify the order passed by the High Court and direct that the orders passed by the Tahsildar and the Revenue Tribunal will be set aside and the matter will be remanded to the Tahsildar for dealing with the application on the footing that it is an application to enforce the right conferred by sections 8 & 9 of the Berar Regulation of Agricultural Leases Act, 1951 and the provisions of section 38 of the Bombay Act 99 of 1958 have no application thereto. There will be no order as to costs in this appeal. Order modified and case remanded.

The land in dispute as in the Vidarbha region originally forming part of the State of Madhya Pradesh, to which the Berar Regulation of Agricultural Leases Act, 1951 (Berar Act) applied. Under the Act, a landlord requiring land for personal cultivation, could terminate a lease by issuing a notice to the lessee under section 9, and obtaining an order in that behalf from the Revenue Officer under section 8(1)(g) and then, applying to the Revenue Officer for ejectment of the lessee. On the landlord 's application, the Officer, after making such summary enquiry as he deems fit, may pass an order restoring possession to the landlord. After the merger of the Vidarbha region with the State of Bombay, the Bombay Tenancy and Agricultural Lands (Vidarbha region and Kutch Area) Act (Tenancy Act) was passed on December 30, 1958 repealing, the Berar Act. Section 36 of the Tenancy Act set up a procedure for obtaining possession from a tenant and provided that the landlord may apply to the Tahsildar who, after holding an enquiry, may pass such order as he deems fit. Section 38(1) authorised the landlord to obtain possession of land from a tenant, if the landlord, bona fide required the land for personal cultivation and in order to efecetuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36, within the prescribed period. By section 38(3) it was provided that the right of a landlord to terminate a tenancy under section 38(1) shall be subject to the conditions contained in cls. (a) to (e) of sub section (3) and sub ,section (4) imposed certain restrictions on the right of the landlord to terminate a tenancy. By section 132(2) any right already acquired before 30th December 1958 remained enforceable. and any legal proceeding in respect of such right, could be instituted, continued and disposed of as if the Tenancy Act had not been passed. But to this reservation an exception was made by section 132(3) that a proceeding pending on 30th December 1958, was to be deemed to have been instituted and pending before the corresponding authority tinder the Tenancy Act, and was to be disposed of in accordance with its provisions. The appellant had obtained from the Revenue Officer concerned an order, determining the tenancy of the respondent under section 8(1)(g) of the Berar Act. effective from 1st April 1958. On 15th May 1959 after the Tenancy Act had come into force the appellant applied to the Tahsildar under section 36 for an order for restoration of possession. The Tahsildar ordered restoration of possession. but on appeal the Sub Divisional Officer set aside the order on the ground that the appellant failed to comply with the requirements of section 38 of the Tenancy Act. and the Revenue Tribunal confirmed the order of the Sub Divisional Officer. In a petition for the issue of a writ, the High Court set aside all the orders of the subordinate tribunals and remanded the case to the Tahsildar for dealing with the application in the light of directions given in its judgment. The High Court 595 held that though section 36(1) of the Tenancy Act did not apply to the appellant 's application, by vitrue of section 132(3) the provision of section 38(3) and (4) were applicable to it. In his appeal to the Supreme Court, the appellant contended that the High Court had not correctly interpreted section 132(3) and that it should have restored the order passed by the Tahsildar Direct should not have reopened the enquiry. HELD : The Tahsildar was competent to entertain the appellant 's application for recovery of possession. Once an order was passed under section 8(1)(g) of the Berar Act by the Revenue Officer, the only enquiry contemplated to be made on an application under section 19 of the Act, was a summary enquiry before an order for possession was made in favour of the landlord. At that stage there was no scope for the application of the conditions and restrictions prescribed by section 38(3) and (4), for those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation. Therefore the Tahsildar should deal with the application on the footing that it was an application to enforce right conferred by sections 8 and of the Berar Act and that the provisions of section 38 of the Tenancy Act have no application thereto. [604 F H; 605 A B] The appellant had acquired a right to obtain possession of the land on the determination made by the Revenue Officer under section 8(1)(g) of the Berar Act. An order made under section 8 or section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding it comes to an end only when an order under section 19 of the Act is made. Therefore, the application filed by the appellant purporting to be under section 36(2) of the Tenancy Act must be regarded its an application under section 19 of the Berar Act, and deemed to be a Continuation of the application under sections 8 and 9 of the Berar Act and pending at the date when the Tenancy Act was brought into force. Since the repeal of the Berar Act the proceeding would stand transferred to the Tahsildar, who was bound to give effect to the rights already acquired before the Tenancy Act was enacted under section 132(2), and in doing so, under section 132(3) he bad to follow the procedure prescribed by the Tenancy Act, But the exception made in section 132(3) is limited in its content. By the use of the expression 'shall be disposed of in accordance with the provisions of this Act '. the legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent to the institution of fresh proceedings. Therefore, a pending proceeding in respect of a right acquired before the Act, had to be continued and disposed of as if the Tenancy Act had not been passed, subject to the reservation in respect of two matters relating to the competence of the officers to try the proceedings and to the procedure in respect of the trial. Between section 19(3) of the Berar Act and section 36(3) of the Tenancy Act in the matter of procedure there is no substantial difference. But to the trial of the application for enforcement of the right acquired trader the Berar Act, section 38 of the Tenancy Act could not be attracted. Section 38(1) is in terms prospective and does not purport to affect rights acquired before the Tenancy Act was brought into force. Section 38(3) and (4) do not apply to an application filed or deemed to be filed under section 19 of the Berar Act. Section 38(3) in term makes the right of the landlord to terminate a tenancy under sub section subject to conditions mentioned therein. The words of section 38(4). are undoubtedly general, but the setting in which the sub section occurs indicating that it is also intended to apply to tenancies determined under section 38(1). Therefore where the determination of the tenancy is not under 38(1), sub sections (3) and (4) have no application. D, E, 60 A, B. F. G H, 603 B, E, F H] 596 Jayantraj Kanakanial Zambad vs Hari Dagdu, I.L.R. , approved.

Civil Appeal No. 396 of 1980. Appeal by Special Leave from the Judgment and Order dated 3.10. 1979 of the Bombay High Court (Nagpur Bench) in Special Civil Application No. 1501 of 1977. G.S. Sanghi, Mrs. Jayashri Wad and Mrs. Urmila Sirur for the Appellants. P.V. Holay, T.G. Narayana Nair, M.S. Gupta and G.S. Sathe for Respondent No. 1 & 2. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against an order of the High Court of Bombay of 2/3rd October, 1979 by which an order passed suspending the two respondents was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner who was not competent to suspend the respondents pending a departmental inquiry. The High Court was of the view that under the Rules and Bye laws of the City of Nagpur Corporation Act, 1948(hereinafter referred to as the 'Act ') as amended uptodate, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer. It appears that originally the order of suspension was passed by the Municipal Com 24 missioner on the 23rd September, 1974 which was confirmed by the Corporation by its order dated 23rd September, 1974. It is alleged by the respondents that latter order was not communicated to them. The suspension was ordered in connection with a departmental inquiry relating to two accidents which occurred during the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents and which resulted in the death of seven persons and injuries to eight others. A complaint was also filed before the police as a result of which a charge sheet under section 304 A I.P.C. was filed against the respondents, on the 25th September, 1976. In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13.1.77 with effect from 8.10.76. The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th July, 1977. Thereafter, the respondents filed a writ petition in the High Court which allowed the petition and quashed the order of suspension and directed the respondent to be paid their full salary and further directed the reinstatement of the respondents. Hence this appeal. The short point taken by Mr. Sanghi was that under section 59 (3) of the Act, the Municipal Commissioner is the competent authority to suspend the respondents pending a departmental inquiry. On a perusal of section 59 (3) we are of the opinion that the contention is well founded and must prevail. Section 59 (3) may be extracted thus: "Section 59 (3) : Subject, whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner who shall also (a). . (b) exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or bye laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances. "(Emphasis ours)" Thus clause (b) of section 59(3) in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision 25 and control over the acts of Municipal officers and servants. It may be noticed that the said clause (b) is preceded by the words 'vest in the Commissioner '. When the words 'control ' and 'vests ' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation. In the case of State of West Bengal vs Nripendra Nath Bagchi(1) while interpreting a similar language employed in article 235 of the Constitution of India which confers control by the High Court over District courts, this Court held that the word 'control ' would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations: "The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge," . . "In our Judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal. " This view was reiterated in High Court of Andhra Pradesh & Ors. vs V.V.S. Krishnamurhty & Ors.(2) where this Court clearly held that 'control ' included the passing of an order of suspension and that the power of control was comprehensive and effective in operation. In this connection, Sarkaria, J. speaking for the Court, observed as follows: "The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position 26 crystalized by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes: (a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. . (ii) In Article 235, the word 'control ' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. . (iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry. " It is thus now settled by this Court that the term 'control ' is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned. In the aforesaid case, suspension from service pending a disciplinary inquiry has clearly been held to fall within the ambit of the word 'control '. On a parity of reasoning, therefore, the plain language of clause (b) of section 59 (3), as extracted above, irresistibly leads to the conclusion that the Municipal Commissioner was fully competent to suspend the respondents pending a departmental inquiry and hence the order of suspension passed against the respondents by the Municipal Commissioner did not suffer from any legal infirmity. The High Court was, therefore, in error in holding that the order of suspension passed by the Municipal Commissioner was without jurisdiction. In this view of the matter the order of the High Court cannot be maintained and has to be quashed. We might, however, mention that although in the criminal case charge sheet was submitted as far back as September, 1976 we 27 understand that no charges have been framed so far. Criminal cases should be disposed of as quickly as possible so as to protect the accused from unnecessary harassment. We therefore direct the Judicial Magistrate First Class of Nagpur to dispose of the Criminal Case No. 1902 of 1976 pending in his file with the utmost expedition and if possible within six months from today. Mr. Sanghi on behalf of the Municipality, states that he will fully cooperate with the prosecution in producing all the available evidence before the court and bringing the case to a final conclusion within the period mentioned above. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will taken into consideration this factor in coming to the conclusion if it is really worth while to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the criminal court. If the respondents are convicted, then the legal consequenses under the rules will automatically follow. We might mention that at the time when special leave was granted by this Court, it was ordered that the respondents should be paid a lump sum of Rs. 10,000/ each apart from the 75% allowance. We think that in the interest of justice the department may not insist on the refund of the amount of Rs. 10,000/ until the 28 result of the departmental inquiry and if the departmental inquiry concludes in their favour, the amount will be either refunded or adjusted against their dues. With these observations, the appeal is accepted and the judgment of the High Court is quashed. Parties will bear their own costs throughout. S.R. Appeal allowed.

Upto November 30, 1973, there were two competing entries in the First Schedule to the U. P. Sales Tax Act, 1948, so far as the item "hypodermic clinical syringes" is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2% From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within entry 39 it became an unclassified item under section 3A(2A) of the U.P. Sales Tax Act, 1948 and the rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973 74 the appellant assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2%, as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39 and hence the appeal by special leave on the question whether hypodermic clinical syringes could be regarded as glass ware. Allowing the appeal, the Court ^ HELD: 1. The assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1974 will be taxable at the rate of 7% as an unclassified item. [298 H] 2: 1. It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined 295 but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. [297 C D] Ramavatar Budhiaprasad etc. vs Assistant Sales Tax Officer, Akola, and Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh, ; , followed. 2 : 2. The clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act. (a) In commercial sense, glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility: (b) in popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop. Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one 's mind. [298 E F] State of Orissa vs Janta Medical Stores, 37 STC 33, approved. Commissioner of Sales Tax vs S.S.R. Syringes and Thermometers, 1973 Law Diary 178, overruled.

Appeal No. 65 of 1975. From the Judgment and Order dated 3.12. 1973 of the Gujarat High Court in I.T.R. No. 35 of 1972. 1169 T.A. Ramachandran, Mrs. J. Ramachandran and S.C. Ratelh for the Appellant. V.S. Desai and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by certificate is di rected against the judgment of the High Court of Gujarat. Assessee is assessed as an individual and she derived income from "other sources" being in the shape of interest, dividends etc. The relevant year of assessment is 1966 67. During this year assessee claimed deduction of Rs.26986 being interest paid to Barivallabndas Kalidas Estate on loans taken by her. The Income tax Officer found that out of the loans real investment was of a sum of Rs. 1250 only. He disallowed the claim to the extent of Rs. 10,275 on propor tionate basis. According to him this claim could not be admitted under section 57(iii) of the Income tax Act of 1961. Assessee 's first appeal to the Appellate Assistant Commissioner was rejected. The Appellate Authority relied upon the ratio of the decision of the Bombay High Court in Bai Bhuriben Ballubhai vs Commissioner of Income tax, Bombay North Cutch and Saurashtra. [1956] ITR (XXIX) 543 and dis missed the appeal. In further appeal before the Tribunal the claim of the assessee was reiterated by contending that expenditure under the head of payment of income tax and wealth tax and annuity deposits should have been taken as revenue expenditure and the claim of interest in respect of such loans should have been admitted. It was further contended that the assessee instead of liquidating the investments which were return oriented, found it commercially expedient and viable to raise a loan instead of disturbing the investments and, therefore, the claim became admissible in law. The Tribunal did not accept this contention and observed that the loans were taken for meeting her personal obligation like payment of taxes and deposit of annuity and these had nothing to do with the business. The Tribunal also relied upon the ratio of Bombay High Court decision referred to above. As the Tribunal dismissed the appeal assessee asked for the case to be stated to the High Court and the following question was referred for its opinion: "Whether on the facts and in the circumstances of the case, 1170 payment of interest to the extent of Rs. 10.27 was not an admissible deduction under section 57(iii) of the Incometax Act?" The High Court referred to various authorities and decided against the assessee by concluding that at the relevant time it was obligatory for the assessee to make the annuity deposit and the earning of interest through such deposit was merely incidental. The High Court further found that the portion of the loan was not intended to meet expenditure wholly and exclusively for the purpose of earning the income and therefore did not come under section 57(iii) of the Act. It is not disputed by Mr. Ramchandran for the assessee that unless the claim comes within the purview of section 57(iii) of the Act it would not be admissible as a deduc tion. That section as far as relevant provides: "The income chargeable under the head 'income from other sources ' shall be computed after making the following deductions, namely: (i). (ii) . (iii) any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the pur pose of making or earning such income; P r ovided . . . . . . . E x p l a n a t ion: . . . . . . . In order that the claim for the deduction could be sustained, it was for the assessee to satisfy the Income tax Officer that the loan interest in respect of which is claimed as deduction was laid out or expended wholly and exclusively for earning the income from out of which the deduction was claimed. There is no dispute that the provi sion of section 57 of the Act corresponds to section 12(2) of the Act of 1922. Dealing with a claim under section 12(2) of the 1922 Act this Court in Eastern Investments Ltd. vs Commissioner of Income tax, West Bengal, [ 1 summarised the position of law thus: "On a full review of the facts it is clear that this transaction was voluntarily entered into in order indirectly to facilitate 1171 the carrying on of the business of the company and was made on the ground of commercial expediency. It therefore falls within the purview of Section 12(2) of the Income tax Act. 1922, before its amendment . . " "This being an investment company, if it borrowed money and utilised the same for its investments on which it earned income. the interest paid by it on the loans will clearly be a permissible deduction under section 12(2) of the Income tax Act. " In Commissioner of Income tax, West Bengal vs Rajendra Prasad Moody, 19 this Court observed: "The determination of the question before us turns on the true interpretation of section 57(iii) and it would, therefore. be convenient to refer to that section, but before we do so, we may point out that section 57(iii) occurs in a fasciculus of sections under the heading "F Income from other sources". Section 56, which is the first in this group of sections, enacts in sub section (1) that specified in section 14, Items A to B, shall be chargeable to tax under the head "Income from other sources" and sub section (2) includes in such income various items, one of which is "divi dends". Dividend on shares is thus income chargeable under the head "Income from other sources". Section 57 provides for certain deductions to be made in computing the income chargeable under the head "Income from other sources" and one of such deductions is that set out in clause (iii). which reads as fol lows: . . . " "The expenditure to be deductible under section 57(iii) must be laid out or expended wholly and excluSively for the pur pose of making or earning such income In the said decision this Court clearly indi cated that: "It is the purpose of the expenditure that is relevant in determining the applicability of section 57(iii) and that purpose must be making or earning of income. " The taxing authorities as also the High Court have clearly recorded a 1172 factual finding facts that the expenditure in this case was to meet the personal liability of payment of income tax and wealth tax and annuity. From the order of the Tribunal as also the judgment of the High Court it appears that the assessee had taken the stand that even if the claim relating to income tax and wealth tax was not admissible. that part of the claim relatable to annuity deposit should have been admitted as it fetched interest. We are inclined to agree with the High Court that so far as meeting the liability of income tax and wealth tax is concerned it was indeed a personal one and payment thereof cannot at all be said to be expenditure laid out or expended wholly and exclusively for the purpose of earning income. So far as annuity deposit is concerned the Tribunal and the High Court have come to the right conclusion that the dominant purpose was not to earn income by way of interest but to meet the statutory liabili ty of making the deposit. The test to apply is that the expenditure should be wholly and exclusively for the purpose of earning the income. The fact finding authorities have come to the conclusion that no part of the expenditure came within the purview of section 57(iii,) of the Act. Mr. Ramchandran then maintained that even if there was an indirect link between the expenditure and the income earned, the claim would be admissible and relied upon the observations of Bose. J. in Eastern Investments Case. No attempt has been made by the assessee to point out before the taxing authorities or even before the High Court by placing the necessary facts to justify such a claim. On mere assumptions such a point cannot be allowed to be raised here for consideration. In fact unless the loan is incurred for meeting the liability connected with the sources itself it would ordinarily be difficult to entertain the claims for deduction. This appeal has to fail and the order of the High Court has to be affirmed. We accordingly dismiss the appeal but leave the parties to bear their respective costs. A.P.J. Appeal dismissed.

The assessee, assessed as an individual, derived income from "other sources" in the shape of interest, dividends etc. In the assessment year 1966 67 she claimed deduction of Rs.26,986 being interest paid on loans taken by her, under section 57(iii) of the Income Tax Act, 1961. The income Tax Officer found that out of the loans real investment was Rs.1,250 only. He disallowed the claim of Rs.10,275 on proportionate basis. The Appellate Assistant Commissioner relying upon the ratio of the decision in Bai Bhuriben Lallubhai vs Commissioner of Income tax, Bombay North Cutch and Saurashtra, [1956 ITR (XXIX) 543] dismissed the appeal of the assessee. Before the Tribunal the assessee contended: (1) that expenditure under the head of payment of income tax and wealth tax and annuity deposits should have been taken as revenue expenditure and the claim of interest in respect of such loans should have been admitted and (2) that the asses see instead of liquidating the investments which was return oriented, found it commercially expedient and viable to raise a loan instead of disturbing the investments and, therefore, the claim became admissible. The Tribunal reject ing the contentions and dismissing the appeal observed that the loans were taken for meeting her personal obligation like payment of taxes and deposit of annuity and these had nothing to do with the business. On reference, the High Court held that at the relevant time it was obligatory for the assessee to make the annuity deposit and the earning of interest through such deposit was merely incidental and that the portion of the loan was not intended to meet expenditure wholly and exclusively for the purpose of earning the income and. therefore. did not come under section 57(iii) of the Act. 1168 Dismissing the appeal of the assessee the Court. HELD: 1. Unless the claim comes within the purview of section 57(iii) of the Income Tax Act. 1961 it would not be admissi ble as a deduction. [1170C] 2. The test to apply is that the expenditure should be wholly and exclusively for the purpose of earning the in come. [1172C] Eastern Investments Ltd. vs Commissioner of income tax, West Bengal, and Commissioner of Income tax, West Bengal vs RaJendra Prasad Moody. , followed. In order that the claim for deduction could be sus tained, it was for the assessee to satisfy the Income Tax Officer that the loan, interest in respect of which is claimed as deduction, was laid out or expended wholly and exclusively for earning the income from out of which the deduction was claimed. [1170F G] 4. The Income Tax Authorities as also the High Court have clearly recorded a factual finding of facts that the expenditure in this case was to meet the personal liability of payment of income tax and wealth tax and annuity and that no part of the expenditure came within the purview ors. 57(ii) of the Act. [1171H 1172A, D] 5. This Court is inclined to agree with the High Court that so far as meeting the liability of income tax and wealth tax is concerned, it was indeed a personal one and payment thereof cannot at all be said to be expenditure laid out or expended wholly and exclusively for the purpose of earning income. So far as annuity deposit is concerned. the Tribunal and the High Court have come to the right conclu sion that the dominant purpose was not to earn income by way of interest but to meet the statutory liability of making the deposit. [1172B C] 6. Unless the loan is incurred for meeting the liability connected with the sources itself it would ordinarily be difficult to entertain the claims for deduction. [1172F]

ION: Criminal Appeals Nos. 75 and 77 of 1961. Appeal by special leave from the judgment and order dated December 22 23, 1960, and from the order dated March 17, 1961 of the Calcutta High Court in Cr. Revision Nos. 1019 and 681 of 1959. C.K. Daphtary, Solicitor General of India, and I. N. Shroff, for the appellant (in Cr. A. No. 75/61). Purushottam Trikamdas, Prasunchandra Ghosh, S.C. Mitter and I. N. Shroff, for the appellant (in Cr. A. No. 77 of 1961). M. C. Setalvad, Attorney General of India, Alak Gupta, S.N. Andley, Rameshwar Nath and P.L. Vohra for the respondents. December 21. The judgment was delivered by S.K. Das, J. I regret that I have come to a conclusion different from that of my learned brethren in these appeals. I proceed now to state the necessary facts, the arguments advanced before us and my conclusions on the various questions urged. By an order dated April 10, 1961 this Court granted special leave asked for by the two appellants herein, Pramatha Nath Talukdar and Saurindra Mohan Basu, to appeal to this Court from two orders made by the High Court of Calcutta, one dated December 22/23, 1960 and the other dated March 17, 1961. By the first order a Special 301 Bench of the Calcutta High Court dismissed two applications in revision which the appellants had made to the said High Court against an order of the Chief Presidency Magistrate of Calcutta dated April 11, 1959 by which the said Magistrate issued processes against the two appellants for offences alleged to have been committed by them under sections 467 and 471 read with section 109 of the Indian penal Code on a complaint made by Saroj Ranjan Sarkar, respondent herein. By the second order a Division Bench of the said High Court refused the prayer of the appellants for a certificate under article 134(1)(c) of the Constitution of India that the case was a fit one for appeal to this Court. This refusal was based primarily on the ground that the order sought to be appealed from was not a final order within the meaning of the Article aforesaid. In pursuance of the special leave granted by this Court four appeals were filed, two against the order dated December 22/23, 1960 and the other two against the order dated March 17, 1961. The two appeals numbered 76 and 78 of 1961 from the order dated March 17, 1961 were withdrawn on the ground that special leave having been granted against the order of the Special Bench dated December 22/23, 1960, the appellants did not wish to press the appeals from the later order dated March, 17, 1961. Therefore, the present judgment relates to the two appeals numbered 75 and 77 of 1961 which are from the judgment and order of the Special Bench dated December 22/23, 1960. The principal question which arises for decision in these two appeals is whether a second complaint can be entertained by a Magistrate who or whose predecessor had, on the same or similar allegation, dismissed a previous complaint, and if so in what circumstances should such a second complaint be entertained. The question is one of 302 general importance and has given rise to some divergence of opinion in the High Courts. Let me first state the facts which have led to the filing of the second complaint in the present case. Saroj Ranjan Sarkar, who is the youngest brother of the late Nalini Ranjan Sakar a well known public man, financier and industrialist of Bengal filed a petition of complaint in the court of the Chief Presidency Magistrate, Calcutta. On April 3, 1959, I do not pause here to state the allegations made in that petition, a shall have occasion to refer to them in detail later on. The complaint was filed against four persons the appellants herein and two other persons, Narendra Nath Law and Amiya Chakravarty. A previous complaint on more or less the same allegations was made by Promode Ranjan Sarkar, second brother of the late Nalini Ranjan Sarkar. That complaint was made on March 17, 1954 and was dismissed under section 203 of the Code of Criminal Procedure by the then Chief Presidency Magistrate, Shri N. C. Chakravarti, on August 6, 1954. Thereafter, an application in revision was made by Promode Ranjan Sarkar to the High Court of Calcutta, which gave rise to Revision Case No. 1059 of 1954. This application in revision was dismissed on July 8, 1955 by Debabrata Mookerjee, J. Promode Ranjan Sarkar then applied for a certificate under article 134(1)(c) of the Constitution, but such a certificate was refused by a Bench of the Calcutta High Court on September 1, 1955. Promode Ranjan Sarkar applied for special leave from this Court and obtained such leave on February 13, 1956. An appeal was filed in pursuance of that special leave, but ultimately Promode Ranjan Sarkar withdrew his appeal by filing a petition on February 3, 1959. In that petition he stated that at the intervention of Common friends and well wishers of the parties, he had settled his disputes with the respondents therein and did not want to proceed with the appeal 303 The appeal was accordingly withdrawn on March 12, 1959. Then, within about 22 days of that order, Saroj Ranjan Sarkar filed the complaint which has given rise to the present proceedings. For convenience and brevity, I shall refer to Promode Ranjan Sarkar 's complaint as the first complaint and Saroj Ranjan Sarkar 's as the second complaint. It is necessary here to give a little more of the background history of the second complaint. As stated earlier, the late Nalini Ranjan Sarkar was a well known person in Bengal. He was the Governing or Managing Director of N. R. Sarkar & Co. Ltd., which managed several public limited companies, such as, Hindustan Development Corporation Ltd., Hindustan Heavy Chemicals Ltd., and Hindusthan Pilkington Glass Works Ltd. He was also closely connected with the Hindusthan Co operative Insurance Society Ltd., of which he held a large number of shares. On January 4, 1948 he obtained leave of absence from the Directors of N. R. Sarkar & Co. Ltd. for a period of one year with a view to joining the Ministry in West Bengal and he assumed office as Finance Minister of the West Bengal Government on January 23, 1948. Later, the leave granted to him for one year was extended. He owned 4649 shares of N. R. Sarkar & Co. Ltd. Pramatha Nath Talukdar, who was a paid employee of the Hindusthan Co operative Insurance Society Ltd. up to the end of July, 1953 was also a Director of N. R. Sarkar & Co. Ltd. He held 299 shares of the said company. Promode Rajan Sarkar held 50 shares. Santi Ranjan Sarkar; son of a deceased brother of Nalini Ranjan Sarkar, held one share. Thus, it would appear that Nalini Ranjan Sarkar was the owner of the largest number of shares of N. R. Sarkar & Co., Ltd., and for all practical purposes he controlled the affairs of that company. On July 31, 1951 Nalini Ranjan Sarkar executed a deed of trust in respect of 3649 shares out of the 304 shares held by him in N. R. Sarkar & Co. Ltd. By the said trust deed he appointed Promode Ranjan Sarkar, Pramatha Nath Talukdar and Narendra Nath Law as the trustees; but the beneficiaries under the trust deed were his four brothers, namely, Promode Ranjan Sarkar, Pabitra Ranjan Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, as also Santi Ranjan Sarkar, the son of a deceased brother. It was alleged that the balance of 1000 shares held by Nalini Ranjan Sarkar was kept in custody with Pramatha Nath Talukdar and according to the case of the complainant these shares were kept in deposit with Pramatha Nath Talukdar for the benefit of the complainant and this brothers. Nalini Ranjan Sarkar died on January 25, 1953. It was alleged that a few days after the funeral ceremony had been performed, Saurindra Mohan Basu casually informed Promode Ranjan Sarkar that his brother Nalini Ranjan Sarkar had executed two documents to wit, an unregistered deed of agreement dated January 19, 1948 by which Pramatha Nath Talukdar was appointed Managing Director of N.R. Sarkar & Co. Ltd. and a deed of transfer of 1000 shares dated February 5, 1951 in favour of Pramatha Nath Talukdar. Promode Ranjan Sarkar and his brothers did not give credence to the information conveyed, and wanted to see the documents. It was alleged that this request was not complied with. On July 31, 1953, i.e. about six months after the death of Nalini Ranjan Sarkar Pramatha Nath Talukdar resigned from his salaried post under the Hindusthan Co operative Insurance Society Ltd. and sought to assume control of N. R. Sarkar & Co. Ltd. as its Managing Director. This led to some trouble between Promode Ranjan Sarkar and the appellants and also to some correspondence between Promode Ranjan Sarkar on one side and N. R. Sarkar & Co. Ltd. on the other, details whereof are not necessary for our purpose. 305 On September 22, 1953 a meeting of the Board of Directors of N.R. Sarkar & Co. Ltd. was held. It was alleged that the meeting was held irregularly without any agenda and a resolution was adopted, despite Promode Ranjan Sarkar 's protest, by which the appointment of Pramatha Nath Talukdar as Managing Director of N. R. Sarkar & Co. Ltd. was renewed for seven years. In September, 1953 Promode Ranjan Sarkar formally wrote to N.R. Sarkar & Co. Ltd. for inspection of the alleged deeds of agreement and transfer. On October 1, 1953 an inspection was taken, and on October 13, 1953 Promode Ranjan Sarkar was allowed to take photographs of the relevant portions of the documents. On this occasion Promode Ranjan Sarkar also inspected the minutes of the proceedings of N. R. Sarkar & Co. Ltd. and it was alleged that the proceedings dated January 16, 1948 purporting to bear the signature of Nalini Ranjan Sarkar were forged. The main allegations in the first and second complaints related to three documents and were to the effect "that in order to assume complete control over N. R. Sarkar & Co. Ltd. and the concerns under its managing agency, the accused persons entered into a criminal conspiracy with one another and others unknown, to dishonestly and fraudulently forge a deed of agreement, a deed of transfer and make a false document, to wit, minute book of N. R. Sarkar & Co. Ltd. and in pursuance thereof dishonestly and fraudulently forged and or caused to be forged and used as genuine the said documents". It will be noticed that three documents were stated to have been forged, and they were (1) An unregistered deed of agreement purporting to have been executed by the late Nalini Ranjan Sarkar as Governing Director of N. R. Sarkar & Co. Ltd. on January 19, 1948 appointing Pramatha Nath Talukdar as the Managing Director of N. R. Sarkar & Co. Ltd. on a remuneration of Rs. 1500 100 2000 per month. This document bore 306 the signature of Saurindra Mohan Basu as a witness attesting the signature of Nalini Ranjan Sarkar, which signature was stated to have been forged. (2) A transfer deed in respect of 1000 shares of N. R. Sarkar & Co. Ltd. which were said to have been entrusted to Pramatha Nath Talukdar, transfering them to the latter for and alleged consideration of rupees one lac purporting to have been executed by the late Nalini Ranjan Sarkar on February 5, 1951 with Saurindra Mohan Basu as the attesting witness both for the transferor and the transferee. (3) Minutes of the proceedings of the Board meeting of N.R. Sarkar & Co. Ltd. dated January 16, 1948 purporting to bear the signature of the late Nalini Ranjan Sarkar and containing a resolution to the effect that the Governing Director approved of a draft agreement of appointment between the Company and Pramatha Nath Talukdar for appointing the latter as Managing Director of the Company and that the Board of Directors approved of the said draft agreement. Of the aforesaid three documents the one relating to the alleged transfer of 1000 shares referred to as (2) above, is the subject of a separate suit stated to be now pending in the Calcutta High Court. That document is not, therefore, directly the subject matter of the second complaint. As to the unregistered deed of agreement referred to as (1) above, it may be stated that the original document could not be later found, and on behalf of the appellants and other accused persons it was stated that the document was not in their possession or control. As stated earlier, Promode Ranjan Sarkar had obtained a photostatic copy of the relevant portions of the document. As to this document the main allegation of the complainant was that it was engrossed on a rupee stamp paper which had been issued, on renewal, in the name of P.D. Himatsinghka & Co., a firm of solicitors in Calcutta 307 and evidence was led at the enquiry into the first complaint that the paper was stolen from that firm and furthermore that the signature on the document purporting to be that of Nalini Ranjan Sarkar was not his signature at all. With regard to the minutes of the proceedings dated January 16, 1948 the allegation was that the minutes were typed on a sheet of paper bearing the letter head N.R. Sarkar & Co. Ltd. with telephone number "City 6091" printed thereon; but the City Exchange did not come into existence until December, 1948 and the telephone connection relating to number "City 6091" was obtained for the first time by the Hindusthan Co operative Insurance Society Ltd. on or about March 18, 1949; and therefore the paper with the letter head N. R. Sarkar & Co. Ltd. with telephone number "City 6091" printed thereon could not have been in existence on the alleged date of the proceeding of the Board of Directors, namely January 16, 1948. In the second complaint certain other circumstances were also alleged in support of the allegation that the unregistered deed of agreement dated January 19, 1948 and the minutes of the proceedings dated January, 16, 1948 were forged. It is, however, unnecessary to refer to those circumstances in detail here. The learned Chief Presidency Magistrate, Shri Bijayesh Mukherjee, who dealt with the second complaint considered all the relevant materials and came to the following conclusions: (1) there was no delay in making the second complaint, if one had regard to the circumstances which led to the first complaint and the withdrawal of the appeal in the Supreme Court on March 12, 1959 arising out of the order made on the first complaint; (2) the dismissal of the first complaint and the application in revision arising therefrom by Debabrata Mookerjee, J. did not, as a matter of law, 308 operate as a bar to the entertainment of the second complaint. (3) the second complaint was not an attempt at blackmail; and (4) the relevant materials in the record showed prima facie that the minutes of the proceedings dated January 16, 1948 were forged and so also the unregistered deed of agreement dated January, 19, 1948. The learned Chief Presidency Magistrate then said: "Prima facie, I am satisfied about the truth of the allegations the complaint makes. That apart, the complaint is for an offence triable by a Court of sessions. And the materials I see before me are such as in my opinion may lead a reasonable body of men to believe the truth thereof. Judged so, there is in my opinion sufficient ground for proceeding within the meaning of section 204 of the procedure Code. On the question as to which of the four accused persons against whom process should issue, the learned Chief Presidency Magistrate came to the conclusion that there was a prima facie case against two of the accused persons only, namely, Pramatha Nath Talukdar and Saurindra Mohan Basu. Saurindra Mohan Basu, it may be stated here, was a solicitor of N.R. Sarkar & Co. Ltd. and had attested the signature of Nalini Ranjan Sarkar on the unregistered deed of agreement. The learned Chief Presidency Magistrate held that there was no sufficient ground for proceedings against the other two accused persons, namely, Narendra Nath Law and Amiya Chakravarty. Against the aforesaid order of the Chief Presidency Magistrate two applications in revision were filed by the appellants herein. These applications 309 in revision were first heard by a division Bench of two Judges of the Calcutta High Court, P. B. Mukherjee and H. K. Bose, JJ. In view of the importance of the questions raised in the two applications in revision and some earlier decisions of the Calcutta High Court bearing on those questions to which I shall presently refer, P.B. Mukherjee, J. came to the conclusion that the applications should be referred to a larger Bench to be constituted by the Chief Justice under the rules of the Court. H.K. Bose. J. (as he then was) was inclined to take the view that the applications in revision must fail, but in deference to the views expressed by P.B. Mukherjee, J. agreed that the applications should be referred to the Chief Justice for constituting a larger Bench. The matter was then referred to the learned Chief Justice, who constituted a Special Bench of three Judges to hear the two applications in revision. This Special Bench heard the two applications in revision and dismissed them by its order dated December 22/23, 1960. Three questions were agitated before the Special Bench. The first was whether the Special Bench was lawfully in seizin of the case and was competent to deal with the applications in revision. The second was whether the learned Chief Presidency Magistrate had jurisdiction to take cognizance of the offences alleged, in the absence of a sanction under section 196A of the Code of Criminal Procedure. The third and the principal question was whether it was open to the learned Chief Presidency Magistrate to entertain a second complaint on the same allegations when his predecessor had dismissed the first complaint; and if it was open to him to entertain the second complaint should he have entertained it in the circumstances of the present case ? The Special Bench unanimously decided these three questions against the appellants and further came to the conclusion that there was no undue delay in making the second 310 complaint; neither was it frivolous nor made in bad faith. It further expressed the view that it saw no reasons to differ from the finding of the learned Chief Presidency Magistrate that there was a prima facie case against the two appellants. Now, as to the first question. Chapter II of Rules of the High Court at Calcutta (Appellate Side) deals with the constitution and powers of the Benches of the Court. Rule 1 of the said chapter says in effect that a Division Bench for the hearing of appeals from decrees or orders of the Subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit; there is a proviso [proviso (ii)] to the rule which says that on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a special Division Bench to consist of three or more Judges for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of the any other matter. It is clear that the rule and the proviso deal with the hearing of appeals from decrees or orders of the Subordinate Civil Courts; in other words, they deal with civil matters. Rule 9 of the same chapter deals with criminal matter and sub r. (1) of the said rule says that a Division Bench for the hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges. There is no proviso to this rule similar to the proviso to r. 1, referred to earlier, and the argument is that in the absence of such a proviso it was not open to the Division Bench consisting of Mukherjee and Bose, JJ. to refer the case back to the Chief Justice for the constitution of a larger Bench (though it was open to the Chief Justice to constitute originally a Division Bench of three Judges to hear the case), and if the Judges were equally divided in opinion, section 429 of the Code of Criminal procedure would apply and the case had to be laid before another Judge and judgment given according to the 311 opinion of the third Judge. I am unable to accept this argument as correct. It is clear from the rules in Chapter II that the constitution of Benches is a matter for the Chief Justice and r. 13 in Chapter II says that a Full Bench appointed for any of the purposes mentioned in Chapter VII, rr. 1 to 5, shall consist of five Judges or three Judges as the Chief Justice may appoint. Now, r. 1 in Ch. VII says inter alia that whenever one Division Bench shall differ from any other Division Bench upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench and r. 5 says that if any such question arises in any case coming before a Division Bench as Court of Criminal Appeal, Reference or Revision, the Court referring the case shall state the point or points on which they differ from the decision of a former Division Bench, and shall refer the case to a Full Bench, for such orders as to such Bench seem fit. In his judgment P.B. Mukherjee, J. referred to two earlier decisions of the Calcutta High Court, Nilratan Sen vs Jogesh Chandra Bhattacharia(1) and Kamal Chandra Pal vs Gourchand Adhikary (2) and observed that the question as to whether those decisions were good law arose in the case and he gave that as a reason for referring the case to the Chief Justice for the constitution of a larger Bench. Even if rr. 1 and 5 in Chapter VII may not, strictly speaking, apply to the present case because the Division Bench consisting of Mukerjee and Bose JJ. did not formulate the point or points on which they differed from the earlier Division Bench decisions referred to by Mukherjee, J., I think that the principle of those rules would apply and it was open to the Chief Justice, on a reference by the Division Bench, to constitute a larger Bench to consider the case. I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to r. 9 in Chapter II correspon 312 ding to the proviso to r. I does not take away the inherent power of the Chief Justice to refer any matter to Bench of three Judges. Sub rule(1) of r. 9 itself provides that a Division Bench for the hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges. Therefore, it was open to the Chief Justice to constituted Bench of three Judges for the hearing of the case and in my view it made no difference whether he constituted such a Bench originally or on a reference back by the Division Bench. I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of the Division Bench feels, for a sufficient and good reason, that he should not hear the case. It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice, I think, must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or Otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case. Section 229 of the Code of Criminal Procedure does not apply to such a case because it is not a case where the Judges composing the Court are equally divided in opinion. Rather it is a case where the Judges composing the Division Bench consider that the case is one of such importance that it should be heard by a larger Bench. My conclusion, therefore, is that there was nothing illegal in the Division Bench consisting of Mukherjee and Bose. referring the case back to the Chief Justice; nor was there anything illegal in the Chief Justice constituting a special Bench of 313 three Judges to hear the applications in revision. The special Bench constituted by the Chief Justice was lawfully in seizin of the case and was competent to deal with it. The objection as to the jurisdiction of the special Bench to hear the case was, in my opinion, rightly overruled by it. Now, as to section. Section 196A of the Code of Criminal Procedure may be read first. That section is in these terms: "196A. No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code. (1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of section 196 apply, unless authority from the "State Govern upon complaint made by order or under authority from the "State Government" or some officer empowered by the "State Government" in this behalf, or (2) in a case where the object of the conspiracy is to commit any non cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the "State Government", or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the "State Government", has, by order in writing, consented to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of subsection (4) of section 195 apply no such consent shall be necessary." 314 The argument before us on behalf of the appellants has proceeded on the footing that in para 5 of the second complaint Saroj Ranjan Sarkar had alleged that the accused persons had entered into a criminal conspiracy with one another and other persons unknown, to dishonestly and fraudulently forge certain documents and in pursuance thereof either forged or caused to be forged those documents and used them as genuine. This allegation, it is argued attracted cl. (2) of section 196A inasmuch as the object of the conspiracy was to commit non cognizable offences under sections 467 and 471 of the Indian Penal Code; therefore, it was necessary to obtain, by order in writing, the consent of the State Government or of the Chief Presidency Magistrate to the initiation of the proceedings and such consent not having been obtained, the issue of processes by the Chief Presidency Magistrate violated the provisions of section 196A of the Code of Criminal procedure. The special Bench repelled this argument on the following grounds. It pointed out the distinction between the offence of criminal conspiracy as defined in section 120A and punishable by section 120B and the offence of abetment by conspiracy as defined in the clause, secondly, in section 107 of the Indian Penal Code. It then pointed out that the Chief Presidency Magistrate did not take cognizance of the offence of criminal conspiracy to commit forgery which would be punishable under section 120B read with section 467 of the Indian Penal Code, but he took cognizance of the offence of abetment of forgery punishable under section 467 read with section 109 of the Indian Penal Code and for this offence no sanction under section 196A of the Code of Criminal Procedure was necessary. The special Bench further expressed the view that the primary offences which the second complaint disclosed where the offence of forgery, of using forged documents as genuine, and of abetment of the said offences and as cognizance of these offences did not require sanction or 315 prior consent of the authorities mentioned in section 196A, the order of the Chief Presidency Magistrate could not be said to have violated the provisions of that section. The correctness of these views of the special Bench has been very seriously contested. I may make it clear at the very outset that the mandatory provisions of section 196A of the Code of Criminal Procedure cannot be evaded by resorting to a mere device or camouflage. The test whether sanction is or is not necessary does not depend on mere astuteness of drafting the petition of complaint. For example, in the second petition of complaint under consideration before us the heading indicated that the offences in respect of which the petition of complaint was filed were offences under sections 467, 471 and 109 of the Indian Penal Code; but in para. 5 of the petition the allegation was that the accused persons had entered into a criminal conspiracy with one another and others unknown, to forge certain documents. It would not be proper to decide the question of sanction merely by taking into consideration the offences mentioned in the heading or the use of the expression "criminal conspiracy" in para. The proper test should be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition of complaint must be examined. There is another principle laid down by this Court which should be kept in mind. The allegations made in the complaint may have more than one aspect; and may disclose more than one offence. What would be the position when some of the offences disclosed do not require any sanction while others require sanction ? This question was considered by this Court in 316 Basir ul huq vs State of West Bengal(1). That was case in which the accused person lodged information at a police station that X had beaten and throttled his mother to death and when the funeral pyre was in flames, he entered the cremation ground with police; the dead body was examined and the complaint was found to be false. On the complaint of X the accused person was charged with offences under section 297, Indian Penal Code (trespass to wound religious feelings) and section 500, Indian Penal Code (defamation). It was contended that as the complaint disclosed offences under section 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under section 195 of the Code of Criminal Procedure. It was held that the facts which constituted the offence under section 297 where distinct from those which constituted an offences under section 182, as the act of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the trial of the charge under section 297. It was further held that as regards the charge under section 500 where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by provisions of section 195 of the Code of Criminal Procedure from seeking redress for the offence committed against him. Referring to section 195 of the Code of Criminal Procedure Mahajan, J. who delivered the judgment of the Court said: "The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well. The allegation made 317 in a complaint may have a double aspect, that is on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made. x x x x As regards the charge under section 500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him. " Keeping the aforesaid two principles in mind let me examine the second complaint in this case in order to find out what essential offences the allegations made therein disclosed. Paragraph 5 of the petition of complaint on which much reliance has been placed on behalf of the appellant alleges (1) that the accused persons entered into a criminal conspiracy with one another and others unknown, to forge certain documents; (2) that in pursuance of the conspiracy those documents were forged; or caused to be forged; and (3) that the documents so forged were used as genuine. The paragraph then recited three documents which were said to have been forged. It is thus clear that apart from the conspiracy, the second complaint alleged that offences under sections 467 and 471 of the Indian Penal Code had also been committed. The special Bench rightly pointed out that the offences under sections 467 and 471 of the Indian Penal Code were distinct from the offence of criminal conspiracy and did not require any prior consent for the initiation of 318 Proceedings therefor under section 196A(2) of the Code of Criminal Procedure. The question, of therefore, boils down to this: in view of the allegation that there was a criminal conspiracy, was the chief Presidency Magistrate debarred from taking cognizance of the case even though certain other distinct offences were alleged which did not require sanction ? I am in agreement with the special Bench that the answer to the question must be in the negative. Furthermore, it appears to me that though the expression "criminal conspiracy" occurs in para. 5 of the complaint, the facts alleged in the petition of complaint essentially disclose an offence of abetment by conspiracy. This brings us to the distinction between the offence of criminal conspiracy as defined in section 120A and the offence of abetment by conspiracy as defined in section 107 of the Indian Penal Code. Section 120A which defines the offence of criminal conspiracy and section 120B which punishes the offence are in Ch. VA of the Indian Penal Code. This Chapter introduced into the criminal law of India a new offence, namely, the offence of criminal conspiracy. It was introduced by the criminal Law Amendment Act, 1913 (VIII of 1913). Before that, the sections of the Indian Penal Code which directly dealt with the subject of conspiracy were these contained in Ch. V and section 121 (Ch. VI) of the Code. The present case is not concerned with the kind of conspiracy referred to in section 121A. The point before us is the distinction between the offence of abetment as defined in section 107 (Ch. V) and the offence of criminal conspiracy as defined in section 120A (Ch. VA). Under section 107, second clause, a person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and an order to the doing of that thing. Therefore, in order to constitute the offence of abetment by conspiracy, there 319 must first be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary, namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. Before the introduction of Ch. VA conspiracy, except in cases provided by sections 121A, 311, 400, 401 and 402 of the Indian Penal Code, was a mere species of abetment where an act or an illegal omission took place in pursuance of that conspiracy, and amounted to a distinct offence. Chapter VA, however, introduced a new offence defined by section 120A. That offence is called the offence of criminal conspiracy and consists in a mere agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means; there is a proviso to the section which says that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The position, therefore comes to this. The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary. 320 Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy vs The Queen (1): "When to agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. " Put very briefly, the distinction between the offence of abetment under the second clause of section 107 and that of criminal conspiracy under section 120A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence. So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in sections 108 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under section 120B. Having regard to the distinction pointed out above, I am of the opinion that para. 5 of the second complaint, though it used the expression "criminal conspiracy" really disclosed an offence of abetment by conspiracy. It made no allegation 321 of any agreement between the several persons at a particular place or time. It said that the accused persons complained against entered into a conspiracy to forge certain documents were forged or caused to be forged. In other words, an illegal act was done in pursuance of the conspiracy and furthermore the documents so forged were used as genuine. Having regard to these allegations in para. 5 of the second complaint, I am unable to hold that the learned 'Chief Presidency Magistrate was wrong in taking cognizance of the offence of abetment by conspiracy, for which offence no consent or sanction under section 196A of the Code of Criminal Procedure was necessary. Therefore, there was violation of the provisions of that section. In this view of the matter it is unnecessary to consider the correctness or otherwise of the further view expressed in some of the decisions (see, for example, State of Bihar vs Srilal Kejriwal (1) to which the special Bench has referred) that there the matter has gone beyond a mere conspiracy and substantive offences are alleged to have been actually committed in pursuance thereof, sections 120A and 120B are wholly irrelevant. That view has not been accepted as correct by some of the other High Courts. In the State of Andhra Pradesh vs Kandimalla Subbaiah (2) this Court held that offences created by sections 109 and 120B, Indian Penal Code were distinct offences, though for a reason stated somewhat differently from what I have stated. It further held that where a number of offences were committed by several persons in pursuance of a conspiracy, it was not illegal to charge them with those offences as well as with the offence of conspiracy to commit those offences, though it was not desirable to charge the accused persons with conspiracy with the ulterior object of letting in evidence which would otherwise be inadmissible and furthermore, it was undesirable to complicate a 322 trial by introducing a large number of charges spread over a long period. The question was treated as one of propriety rather than of legality. The question of sanction was also considered in that case, but in view of the order of remand passed, no opinion was expressed thereon. The special Bench expressed the view that it was not necessary to go to the extent of saying that in a case of this nature sections 120A and 120B became wholly irrelevant. The special Bench proceeded on the footing that irrespective of whether sections 120A and 120B became wholly irrelevant or not the second complaint undoubtedly disclosed an offence of abetment by conspiracy and it was open to the Chief Presidency Magistrate to take cognizance of that offence. I think that there are no good reasons for holding that the view taken by the special Bench is not correct. In my opinion, the special Bench rightly overruled the objection as to the alleged violation of the provisions of section 196A of the Code of Criminal Procedure. Now, I come to the third and principal question agitated in these appeals. On behalf of one of the appellants, Saurindra Mohan Basu, Mr. Purushottam Trikumdas has argued before us that when the first complaint containing more or less the same allegations was dismissed under section 203 of the Code of Criminal Procedure by the Chief Presidency Magistrate, it was not at all open to his successor to entertain the second complaint. He has put the matter as one of law and has argued that the only way of getting rid of an order of dismissal under section 203 of the Code of Criminal Procedure known to the Code of Criminal Procedure is to have it act aside in accordance with the procedure laid down in sections 436 and 439 of the Code. He has further argued that, as a matter of law, a second complaint is not entertainable as long as the order of dismissal under section 203 of the Code 323 of Criminal Procedure is not set aside by a competent authority. His argument is that the two decisions in Nilratan Sen vs Jogesh Chandra Bhattacharjee(1) and Kamal Chandra Pal vs Gourchand Adhikary (2) should be held as good law. Section 403 of the Code of Criminal Procedure is relevant to this argument. It embodies the well established rule of common law that a man may not be put twice in peril for the same offence and that no man should be vexed with several trials for offences arising out of identical acts. An Explanation appended to the section says inter alia that the dismissal of complaint or the discharge of accused person is not an acquittal for the purposes of the section. If the Legislature had intended that the dismissal of complaint or the discharge of an accused person would be a bar to fresh proceeding on the same allegations unless the order of dismissal or discharge were set aside by a higher court, it would have said so either explicitly or by omitting the Explanation altogether. Therefore, the effect of the Explanation is that under section 403 a fresh trial is barred only in cases of acquittal or conviction by a court of competent jurisdiction, coming within the purview of sub section (1) thereof. This aspect of the question was considered in Queen Empress vs Dolegobind Dass (3), which was a case dealing with a previous order of discharge of the accused person. In that case, Maclean, C. J. referred to the decision in Nilratan Sen 's case and said: "There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as the order of dismissal remains unreversed ' (see per Benerjee, J. in Nilratan Sens ' vs Jogesh Chandra Bhattacharjee (supra). I agree in that. If, then there be no express provision 324 in the Code, what is there to warrant us in implying or in effect introducing into the Code a provision of such serious import x x x? In the absence of any other provision in the Code to justify such an implication x x x x I can appreciate no sound ground for the Court so acting; were it to do so it would go perilously near to legislating, instead of confining itself to construing the Acts of the Legislature. " The question was then considered by a Full Bench of the Calcutta High Court in Dwarka Nath Mondul vs Beni Madhab Banerjee (1) and it was held by the Full Bench (Ghose, J. dissenting) that a Presidency Magistrate was competent to rehear a warrant case triable under Ch. XXI of the Code of Criminal Procedure in which he had earlier discharged the accused person. Nilratan Sen 's case(2) and Kamal Chandra Pal 's case(3) were referred to in the arguments as summarised in the report, but the view expressed therein was not accepted. Dealing with the question Princep, J. said: "There is no bar to further proceedings under the law, and, therefore, a Magistrate to whom a complaint has been made under such circumstances, is bound to proceed in the manner set out in section 200, that is, to examine the complaint, and, unless he has reason to distrust the truth of the complaint, or for some other reason expressly recognised by law, such as, if he finds that no offence had been committed, he is bound to take cognizance of the offence on a complaint, and, unless he has good reason to doubt the truth of the complaint, he is bound to do justice to the complainant, to summon his witness and to hear them in the presence of the accused." 325 The same view was expressed by the Madras High Court in In re. Koyassan Kutty (1) and it was observed that there was nothing in law against the entertainment of a second complaint on the same facts on which a person had already been discharged, inasmuch as a discharge was not equivalent to an acquittal. This view was reiterated in Kumariah vs Chinna Naicker (2), where it was held that the fact that a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure was no bar to the entertainment of a second complaint. In Hansabai Sayaji vs Ananda Ganuji (3) the question was examined with reference to a large number of earlier decisions of several High Courts on the subject and it was held that there was nothing in law against the entertainment of a second complaint on the same facts. The same view was also expressed in Ram Narain vs Panachand Jain (4), Ramanand vs Sheri (5), and Allah Ditta vs Karam Baksh (6). In all these decisions it was recognised further that though there was nothing in law to bar the entertainment of a second complaint on the same facts, exceptional circumstances must exist for entertainment of a second complaint when on the same allegations a previous complaint had been dismissed. The question of the existence of exceptional circumstances for the entertainment of a second complaint is a question to which I shall come later. At the present moment, I am considering the argument of Mr. Purshottam Tricumdas that the law prohibits altogether the entertainment of a second complaint when a previous complaint on the same allegations had been dismissed under section 203 of the Code of Criminal Procedure. On this question the High Courts appear to me to be almost unanimously against the contention of Mr. Purshottam Tricumdas, and for the reasons given in the decisions to which I have earlier referred, I 326 am unable to accept his contention. I accept the view expressed by the High Courts that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure. I also accept the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is "sufficient ground for proceeding" with the second complaint, when a previous complaint on the same allegations was dismissed under section 203 of the Code of Criminal Procedure. The question now is, what should be those exceptional circumstances ? In Queen Empress vs Dolagobind Dass (1), Maclean, C. J. said: "I only desire to add that no Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with by a Magistrate of coordinate jurisdiction upon the same evidence only, unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice." Thus, according to this decision, the exceptional circumstance must be such as would lead the Magistrate to think that the previous order of dismissal was due to a manifest error or resulted in a manifest miscarriage of justice. In re. Koyassan Kutty (2) Sadasiva Aiyar, J. formulated the test of exceptional circumstances in the following words: "Taking it then that the discharge was proper and legal, there is no doubt nothing in law against the entertainment of a second 327 complaint on the same facts as a discharge is not equivalent to an acquittal; but I think that unless very strong grounds are shown a person who has been charged once and discharged ought not to be harassed again on the same charge. It is not alleged that new facts have been discovered which the police did not know when they brought the first charge. " In this decision the test formulated was the discovery of new facts which were not known when the first charge of complaint was made. In Kumariah vs Chinna Naicker(1) the same test was again applied when it was observed: "There is nothing to indicate that there was no proper investigation on the previous complaint or that there was any necessity for investigating the second complaint. x x x No additional witness had been cited in the second complaint, nor, as pointed out by the Additional Magistrate, was it alleged that any other kind of evidence had been discovered or was likely to be forthcoming. " It is worthy of note, however, that Kuppuswami Aiyar, J. did not say that the discovery of a new fact or new evidence must be of such a character that it was not known to the complainant when the prior complaint was brought and dismissed. In Hansabai Sayaji vs Ananda Ganuji (2) it was pointed out that the circumstance that the second complaint was filed by a person other than the one who made the first complaint made no difference and the test laid down in some early Rangoon High Court decisions [Ma The Kin vs Nga E Tha (3) and U Shwe vs Ma Sein Bwin (4) ], was accepted as the correct test. In Ma The Kin 's case (supra) the test was thus expressed: 328 "It is the duty of a Magistrate, therefore, who receives a complaint in a case where there has been a previous order of dismissal or discharge, not to issue process, unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice, or unless new facts are adduced which the complainant had not knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. " It will be noticed that in the test thus laid down the exceptional circumstances are brought under three categories; (1) manifest error, (2) manifest miscarriage of justice, and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. Any exceptional circumstances coming within any one or more of the aforesaid three categories would fulfil the test. In Ram Narain vs Panachand Jain (1) it was observed that an exhaustive list of the exceptional circumstances could not be given though some of the categories were mentioned. One new category mentioned was where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. This new category would perhaps fall within the category of manifest error or miscarriage of justice. It appears to me that the test laid down in the earliest of the aforesaid decisions. Queen Empress vs Dolegobind Dass (2), is really wide enough to cover the other categories mentioned in the later decisions. Whenever a Magistrate is satisfied that the previous order of dismissal was due to a manifest error or has resulted in a miscarriage of justice, he can entertain a second complaint on the same allegations even though an earlier complaint was dismissed under section 203 329 of the Code of Criminal Procedure. I do not think that in a matter of this kind it is either possible or even desirable that the exceptional circumstances must be stated with any more particularity or precision. The learned Advocate for the respondent argued before us that a new category should be added and he called it "frustration of justice". I am of the view that apart from any question of felicity of this new expression, this new category does not give any more assistance towards explaining the exceptional circumstances which must exist before a second complaint on the same allegations can be entertained. I am content in this case to proceed on the footing that, the Magistrate must be satisfied that there was a manifest error or a miscarriage of justice before he can entertain a second complaint on the same facts. In this case, two exceptional circumstances were adverted to before us. One is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure and this, it is contended, resulted in a manifest miscarriage of justice when he dismissed the first complaint under section 203 of the Code of Criminal Procedure. I am of the view that there is substance in this contention. Section 203 of the Code of Criminal Procedure states that the Magistrate may dismiss the complaint, if, after considering the statement on oath, if any, of the complainant and the witnesses and the result of the investigation or enquiry, if any, under section 202, there is in his judgment no sufficient ground for proceeding. Section 204 lays down that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue a summon or a warrant, as the case may require. What is the true scope and effect of the expression 330 "sufficient ground for proceeding" occurring in the aforesaid two sections ? This was considered by this Court in Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker (1). With reference to sections 200, 202 and 203 of the Code of Criminal Procedure it was there observed: "The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not any that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. " It was further observed that if the Magistrate had not misdirected himself as to the scope of an enquiry under section 202 and had applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception could not be accepted by in arriving at his judgment. In another decisions of this Court Ramgopal Genapatria Ruia vs State of Bombay (2) the expression "sufficient grounds" occurring in sections 209, 210 and 213 of the Code of Criminal Procedure was considered and it was held that the expression did not mean sufficient grounds for the purpose of conviction but meant such evidence as would be sufficient to put the accused upon trial by the jury dealing with the first complaint the learned Chief Presidency Magistrate proceeded to consider not whether there was 331 sufficient ground for proceeding within the meaning of sections 203 and 204 of the Code of Criminal Procedure but whether there was sufficient evidence for conviction of the accused persons. In my opinion, this approach was completely wrong and resulted in a manifest miscarriage of justice. The learned Chief President Magistrate said: "In cases depending on circumstantial evidence in order to justify any inference that an offence has been committed the incriminating facts must be incompatible with innocence of the person accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. If the circumstances are found to be as consistent with the guilt of the accused, no inference of guilt can be drawn. In the present case the circumstances above equally may lead to the inference that the document was ante dated and might or might not have been forged. Therefore the circumstances are not precise to be of any value as evidence. " These observations clearly show that the learned Chief Presidency Magistrate misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure. He did not keep in mind the true purpose of the enquiry before him which was to ascertain whether there was evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the accused persons. He further failed to keep in mind that sections 203 and 204 of the Code of Criminal Procedure did not say that a regular trial for judging the guilt or otherwise of the person complained against should take place at that stage. It was not for learned Chief Presidency Magistrate to apply the test whether the circumstances were or were not incompatible with the, innocence of the accused persons. The 332 purpose of the enquiry before him was merely to ascertain prime facie the truth or falsehood of the complaint. Instead of holding an enquiry into the complaint, the learned Chief Presidency Magistrate proceeded as though he was trying the ease itself on merits. I consider that this mistake on the part of the learned Chief Presidency Magistrate gave a wrong direction to the whole proceedings on the first complaint and the order of dismissal passed by him was due to a manifest error and resulted in miscarriage of justice. The second exceptional circumstance is as to the presence of the telephone number "City 6091" printed on the sheet of paper on which were typed the minutes of the proceedings dated January 16, 1948. When the first complaint was dealt with by the Chief Presidency Magistrate no evidence was led to show that the City Exchange did not come into existence until December, 1948 and that the telephone connection relating to that particular number was obtained for the first time by the Hindusthan Co operative Insurance Society Ltd. on or about March 18, 1949. This I think, would be a new matter which was not considered when the first complaint was dismissed under section 203 of the Code of Criminal Procedure. There was a good deal of argument as to whether this matter relating to the City Exchange was known to the complainant and his brothers from before, and if so, why they did not bring it to the notice of the learned Chief Presidency Magistrate who dealt with the first complaint. it appears that an application dated June 7, 1955 was made before Debabrata Mookerjee J. who heard the application in revision with regard to the first complaint. In that application certain statements were made with regard to the City Exchange. Those statements did not, however, include any averment as to the knowledge of the complainant, Promode Ranjan Sarkar, about 333 the facts relating to the City Exchange and telephone number "City 6091". The application merely stated that the facts stated therein were matters of public history and it was essential in the ends of justice to take judicial notice thereof. Debabrata Mookerji, J. apparently rejected this application but did not record any formal orders on that date. He recorded formal orders after he had dismissed the application in revision. He said therein that he was not prepared to take into consideration the facts alleged in the application dated June 7, 1955 as they related to new matters. The argument on behalf of the appellants before us is that the facts relating to the City Exchange were not new matters, because the complainant, Saroj Ranjan Sarkar, nowhere said that he did not know them before. The argument, therefore is that it does not fulfil the test of "new facts which the complainant have no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings". The learned Advocate for the respondent has, in my opinion, rightly submitted that it is somewhat illogical to say at one stage of the proceedings that the matter was a new matter and could not, therefore, be taken into consideration and at a later stage to say that it is not a new matter and therefore could not be taken into consideration. This much, however, is clear that the matter relating to the City Exchange and in particular telephone number "City 6091" was not at all considered when the first complaint was dismissed under section 203 of the Code of Criminal Procedure. This matter is of some importance because if there was no such telephone number on January 16, 1948, the minutes of the proceedings purporting to be of that date must have come into existence on a later date. This would have great relevance and bearing on the allegation of forgery made with regard to the minutes of the proceedings dated January 16, 1948. 334 On behalf of Saurindra Mohan Basu it was further contended that there was not even prima facie evidence against him and the learned Chief Presidency Magistrate was wrong in issuing process against him. It is only necessary to point out that the learned Chief Presidency Magistrate found that there was a prima facie case against Saurindra Mohan Basu. He had attested the signature of the late Nalini Ranjan Sarkar and if that signature was forged, then that would be prima facie evidence against Saurindra Mohan Basu also. My learned brethren have taken the view that the entertaining of the second complaint in the circumstances of this case is a gross abuse of the processes of the Court. I find myself unable to subscribe to that view. My conclusion is just the opposite, namely, that the entertaining of the second complaint fully serves the interests of justice. I am further of the opinion that its dismissal would defeat the ends of justice. In this connection, I have already referred to the two exceptional circumstances which exist: one is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure; the second is that Debabrata Mookerjee, J. wrongly refused to take into consideration the circumstances relating to the installation of the City Exchange and telephone number "City 6091", circumstances which had a decisive bearing on the allegation of forgery made with regard to the minutes of the proceedings dated January 16, 1948. Even a cursory perusal of the order of the Chief President Magistrate (Shri N. C. Chakravarti) dated August 6, 1954 with regard to the first complaint shows that the learned Chief Presidency Magistrate proceeded on the footing as though he was trying a case based entirely on circumstantial evidence; he formulated 335 the tests for drawing conclusions from circumstantial evidence and applying those tests, he came to the conclusion that the complaint was not true. He rejected the evidence of the hand writing expert as though it was his function to try the case. He rejected the enquiry report of Shri A. B. Syam (who held that there was a prima facie case for the issue of process) on very insufficient grounds. He even went to the length of judging for himself the peculiar characteristics of Nalini Ranjan Sarkar 's hand writing depending on the personality of the writer. In my view, in all these matters the learned Chief Presidency Magistrate misdirected himself as to the true scope of the enquiry before him and he forgot that what he had to find was whether prima facie there was believable evidence in support of the allegations made in the complaint. This does not necessarily mean that a Magistrate dealing with a complaint is obliged "to bind himself to a mere mechanical or a wholly uncritical acceptance of the complainant 's story". Indeed, it is the duty of the Magistrate to judge the materials on which he has to make up his mind as to the sufficiency or otherwise of the ground for proceeding further with the complaint and in judging the materials he must sift them and submit them to a critical examination. This aspect of the question was argued before Debabrata Mookerjee, J. and he referred to it in his judgment. I say this without meaning any disrespect to the learned Judge, but it appears to me that he missed the distinction which was pointed out by this Court in Ramgopal Ganpatrai Ruia vs The State of Bombay(1) namely that the expression "sufficient grounds" occuring in sections 209, 210 and 213 of the Code of Criminal Procedure does not mean sufficient grounds for the purpose of conviction, but means such evidence as is sufficient to put the accused person upon trial by the jury. In sections 203 and 204, Criminal Procedure Code, the expres 336 sion is "sufficient ground for proceeding" which really means sufficient ground for proceeding with the complaint. Sufficient ground for proceeding with the complaint is one matter and sufficient ground for convicting an accused person is quite a different matter. It is this distinction which has to be kept in mind and the failure to keep such a distinction in mind in the present case has resulted in a manifest error. Debabrata Mookerjee, J. detailed seven circumstances as those on which the complainant relied in support of the allegation of forgery. He then went on to deal those circumstances as though the function of the Court then was to find out whether there was sufficient ground for convicting the accused person. I refer particularly to the view expressed by the learned Chief Presidency Magistrate to the effect that one of the documents in question might have been ante dated by Nalini Ranjan Sarkar himself. This was a suggestion made on behalf of the accused persons as a possible defence to the charge of forgery and it was not the function of the Chief Presidency Magistrate to consider the defence at that stage. Debabrata Mookerjee, J. himself said: "If, on the other hand, the Magistrate has met the facts alleged by the complainant by anticipating possible defences to the charge, thus travelling beyond the facts themselves and the inferences and the probabilities legitimately raised by them, he must be held to have exceeded the allowable limits of an initial test of the complainant 's story." Yet, the possible defence that Nalini Ranjan Sarkar might have himself ante dated the document was not only considered by the learned Chief Presidency Magistrate but was accepted by Debabrate Mookerjee J. This, in my opinion, clearly demonstrates the manifest error or injustice which has taken place in this case, though in the concluding part of his 337 judgment Debabrata Mookerjee, J. expressed the view that he did not consider that the learned Chief Presidency Magistrate had over stepped the permissible limits of a preliminary probe into the truth or otherwise of the complainant 's story. He further said that in his view the learned Chief Presidency Magistrate in sifting the materials offered did not dispose of them by anticipating a possible defence of the parties; yet the one possible defence to the charge of forgery was that Nalini Ranjan Sarkar might himself have antedated the document in question and that very defence was considered and accepted not only by the learned Chief Presidency Magistrate but by Debabrata Mookarjee, J. also. The second mistake which led to a manifest injustice was the refusal to take into consideration the circumstances relating to the installation of the City Exchange and the telephone number "City 6091". Debabrata Mookerjee, J. made no orders on the application dated June 7, 1955. In his final order he said: "The application speaks for itself. I was not prepared on that date to take any notice of the new matters mentioned in that application and I adhere to my decision. " In my view Debabrata Mookerjee, J. was grievously in error in rejecting the application. As I have said earlier, the circumstances relating to the installation of the City Exchange and telephone number "City 6091" had a decisive bearing on the truth or otherwise of the allegation of forgery and to reject the application to take those circumstances into consideration really amounted to a denial of justice. Debabrata Mookerjee, J. took the view that it was a new matter which could not be taken into consideration and, pradoxically enough, the argument before us is that not being a new matter, it should not have been taken into consideration 338 in connection with the second complaint. This paradox clearly demonstrates the injustice that will result from a failure to take into consideration circumstances which are decisive of the allegations made in the complaint. When the complainant made an application for a certificate for appeal to the Supreme Court against the order passed by Dababrata Mookerjee. J., he forcefully contended that the refusal to take notice of the circumstances relating to the installation of the City Exchange amounted to a denial of justice. This application was dealt with by a Bench of two Judges of the Calcutta High Court (Das Gupta and Bachawat, JJ.). The learned Judges expressed the view that if they were dealing with the matter, they would have thought it right to refer to the appropriate books for ascertaining the date on which the City Exchange came into existence. They, however, felt that the matter was within the discretion of Debarata Mookerjee, J. and they were not prepared to give a certificate in a matter of discretion. Another point which was urged before that Bench was this. The complaint was for offences triable by the Court of sessions and the question which the learned Chief Presidency Magistrate had to put himself was not whether he, for himself, believed the allegations to be true but whether the materials before him were such that thereupon a reasonable body of men might believe the allegations to be true. The learned Judge said: "In our judgment there is considerable force in this argument, but at the same time we have to take notice of the fact that this question does not appear to have been decided by the courts." Since those observations were made, a decision has been given by this Court and that decision supports the contention urged on behalf of the complainant. The matter then came to this Court on an applica 339 tion for special leave, and special leave was granted by this Court on February 13, 1956. An appeal was filed in pursuance of that special leave, but ultimately Promode Ranjan Sarkar withdrew his appeal by filing a petition on February 3, 1959. In that petition he stated that at the intervention of common friends and well wishers of the parties, he had settled his disputes with the respondents therein and did not want to proceed with the appeal a statement which, in the circumstances of this case, amounts almost to compounding a felony. The appeal was accordingly withdrawn on March 12, 1959. The present complaint, Saroj Ranjan Sarkar, alleged in his petition of complaint that the withdrawal of the appeal filed in this Court in the circumstances stated above was due to undue influence exercised by the accused persons. Whether that allegation is correct or not can only be determined after evidence has been led. There are, however, circumstances which seem to me indicate that the withdrawal of the appeal in this Court was for the purpose of defeating the ends of justice. The accused persons must have realised that if the evidence relating to the installation of the City Exchange and telephone No. "City 6091" was available and considered, then there would be no escape from the position that the minutes of the proceedings of the Board meeting of N.R. Sarkar and Co. Ltd., dated January 16, 1948 must have been forged and this aspect of the matter was very rightly emphasised by the learned Chief Presidency Magistrate (Shri Bijayesh Mukherjee) who dealt with the second complaint as also by the Special Bench of three Judges who dealt with the matter on the revision applications made against the order of the learned Chief Presidency Magistrate on the second complaint. It is also worthy of note that this Court must have granted special leave in respect of the order passed on the first complaint, because it felt that there were arguable points in support of the 340 application for special leave, one of such points apparently being the refusal to consider the circumstances relating to the installation of the City Exchange. On the second complaint the learned Chief Presidency Magistrate, as also the High Court, took those circumstances into consideration and rightly held that those circumstances clearly indicated that the allegations made in the complaint were prima facie true. The learned Chief Presidency Magistrate further held that having regard to the antecedent circumstances, there was no undue delay in filing the second complaint. He further held that there was no intention to blackmail, in the sense that one brother having failed on the first complaint, another brother was fraudulently trying to start afresh the criminal law in motion. These findings of the learned Chief Presidency Magistrate were accepted by a Special Bench of three Judges of the Calcutta High Court. I have heard nothing in the course of the arguments addressed before us which would justify me to go behind those findings, particularly in an appeal filed by special leave under article 136 of the Constitution. The learned Chief Presidency Magistrate and a Bench of three Judges of the Calcutta High Court held specifically on the second complaint that there was a prima facie case and the dismissal of the first complaint resulted in manifest injustice. I see no reasons to differ from the view thus expressed by the learned Chief Presidency Magistrate and the High Court. For these reasons I have come to the conclusion that there are no good grounds for interfering with the judgment and order of the Special Bench dated December 22/33, 1960. I would accordingly dismiss the two appeals. The Judgment of Kapur and Hidayatullah, JJ., was delivered by KAPUR, J. There are two appeals against the judgment and order of the High Court of 341 Calcutta which raise the question of competency of a second complaint in regard to the same matter after the first complaint has been dismissed under section 203 of the Code of Criminal Procedure. The respective appellants in the two appeals are P. N. Taluqdar and Sourindra Mohan Basu an attorney of Calcutta against whom process has been issued by the Chief Presidency Magistrate Calcutta on a complaint filed by the respondent Saroj Ranjan Sarkar. The facts of these appeals are these: In 1944 a private limited company N. R. Sarkar & Co., Ltd. was formed by the late Mr. N. R. Sarkar, who was a well known financier and industrialist and a public man of Bengal. This company was the Managing Agent of several public limited companies such as Hindusthan Development Corporation Ltd., Hindusthan Chemicals Limited, Hindusthan Pilkington Glass Works Limited etc. Mr. N. R Sarkar was the Managing Director of N. R. Sarkar & Co., Ltd. Out of the share capital of this company he held 4649 shares. His younger brother Promode Ranjan Sarkar held 50 shares. Appellant P. N. Taluqdar who was a paid employee of the Hindusthan Cooperative Insurance Co., Ltd. held 300 shares and was a director of the Company and Shanti Ranjan Sarkar, a son of N. R. Sarkar 's deceased brother, held one share. As Mr. N. R. Sarkar became the Finance Minister in the West Bengal Government, he obtained leave of absence on January 4, 1948, from the directors of N. R. Sarkar & Co. Ltd. for a period of one year which was subsequently extended for another year. This was by a resolution passed on March 10, 1948. Mr. N. R. Sarkar joined the Government on January 23, 1948 and in August 1948 Dr. N. N. Law became a director of N. R. Sarkar & Co., Ltd. On July 31, 1951 Mr. N. R. Sarkar executed a deed of trust in respect of 2920 shares out of his 342 holding in Hindusthan Cooperative Society Ltd. and 3649 shares out of the shares held by him in N. R. Sarkar & Co. Ltd. By this deed he appointed as trustees his younger brother Promode Ranjan Sarkar, appellant P. N. Taluqdar and Dr. N. N. Law and the beneficiaries under the trust deed were his four younger brothers including the complainant and Shanti Ranjan Sarkar, his nephew. It is alleged that the balance of 1,000 shares was to be kept in trust by the appellant P. N. Taluqdar for the benefit of his brothers and nephew. N. R. Sarkar died on January 25, 1953. It is alleged that a few days after the death of Mr. N. R. Sarkar, the appellant, Sourindra Mohan Basu in a casual manner informed Promode Ranjan Sarkar that his brother N. R. Sarkar had executed two documents one an unregistered deed of agreement dated January 19, 1948, appointing the appellant P. N. Taluqdar as the Managing Director of N. R. Sarkar & Co., Ltd. and a deed of transfer dated February 5, 1951, transferring 1,000 shares in N. R. Sarkar & Co. Ltd., in his P. N. Taluqdar 's) favour. Promode Ranjan Sarkar and his brothers without giving much credence to this information wanted to see the documents but they were not allowed to do so. On July 31, 1953, appellant P. N. Taluqdar resigned from the Hindusthan Cooperative Insurance Society Ltd., in order to take control of N. R. Sarkar & Co Ltd., as it Managing Director. This led to trouble between Promode Ranjan Sarkar and the appellant P. N. Taluqdar and there was some correspondence between Promode Ranjan Sarkar and the appellant P. N. Taluqdar which it is unnecessary to refer to. At a meeting of the Board of Directors of N. R. Sarkar & Co., held on September 22, 1953, the appointment of appellant P. N. Taluqdar as Managing Director of N. R. Sarkar & Co. Ltd., was renewed for a period of seven years. This in spite of the 343 protest of Promode Ranjan Sarkar and in spite of the fact that that item was not on the agenda of the meeting. On October 1,1953, Promode Ranjan Sarkar took inspection of the agreement. On October 13, 1953, he took inspection of the Minute book and took photostat copies of some of the documents but not of the resolution of January 16, 1948. It is alleged that the appellants and other entered into a criminal conspiracy and fraudulently forged certain documents which in the complaint are described thus: (a) "An unregistered deed of agreement purporting to have been executed by the late Sri Nalini Ranjan Sarkar as Governing Director of N. R. Sarkar & Company Limited on 19th January 1948, (while he was on leave as stated above) appointing accused No. 1 (P. N. Taluqdar) as the Managing Director of N. R. Sarkar & Company Limited on a remuneration of Rs. 1,500 100 2,000/ per month and the deed bears the signature of accused No. 2 (section N. Basu) as the sole attesting witness. (b) A transfer deed in respect of 1000 shares of N. R. Sarkar & Co. Ltd., which has been entrusted to accused No. 1 as stated before, transferring them to accused No. 1 for an alleged consideration of Rs. 1,00,000(Rupees One Lakh) also purporting to have been executed by the late Sri Nalini Ranjan Sarkar on 5th February, 1951, with accused No. 2 as attesting witness both for the transferor and transferee. 344 (c) Minutes of the proceedings of the Board. Meetings of the said N. R. Sarkar & Company Limited including those of a meeting dated 16th January, 1948, purporting to bear the signature of the aforesaid late Sri Nalini Ranjan Sarkar. " These documents, it is alleged, are forged and have been used and by the use of these forged documents a fraud has been perpetrated. On April 3, 1959, respondent filed in the Court of the Chief Presidency Magistrate, Calcutta, a complaint under sections 467, 471 read with section 109 of the Indian Panel Code against the two appellants, Dr. N. N. Law and A. Chakravarti. Document No. (b) above is not the subject matter of the complaint because a suit in regard to it has been filed and is pending in the Calcutta High Court. On May 7, 1959, process was issued against the appellants by the Chief Presidency Magistrate. Before dealing with the allegations in this complaint it is necessary to give some further facts of the case. On December 12, 1953 Pramode Rajan Sarkar laid an information with the Commissioner of Police, Calcutta, against the persons against whom the above mentioned complaint was later filed. It appears that the matter was investigated by the police and by a letter dated February 16, 1954, the Police Commissioner expressed the opinion that there was no substance in the allegations which were being made by Pramode Ranjan Sarkar against the appellants and two others. He stated ". I have given this matter very careful consideration gone through various reports and papers and even examined an important witness myself. My examination has led me to conclusion that allegations are false and vexations. " On March 17, 1954, Pramode Ranjan Sarkar filed a complaint under sections 467, 471 and ss.457, 471 read with section 109. After setting out the facts which have 345 been given above and after referring to the three documents which were alleged to have been forged it was stated that the deed of agreement was engrossed on a stamp paper purchased in the name of P.D. Himmatsinghka & Co., a firm of solicitors, instead of in the name of the parties; that the resolution of January 16, 1948, which purported to bear the signature of the deceased was in fact not signed by him; that during the lifetime of Nalini Ranjan Sarkar and after a considerable period after his death the appellant, P. N. Taluqdar, never alleged that he had been appointed the Managing Director of N. R. Sarkar & Co. Ltd., nor did even appear from any resolution of the Board of N. R. Sarkar & Co., that he was appointed the Managing Director until September, 1953. Certain other allegations which need not be set out at this stage were also made in this complaint for the purpose of showing that the appellants had been guilty of forgery and for using forged documents and for conspiracy. The matter was heard by the Chief Presidency Magistrate Mr. N. C. Chakraborty who after examining all the witnesses who were produced before him dismissed the complaint by an order dated August 6, 1954. The learned Chief Presidency Magistrate examined the handwriting expert and after taking all the facts into consideration he held: "that the evidence on handwriting including the opinion of the Handwriting Expert does not support the complainant 's version." Against this order the complainant Pramode Ranjan Sarkar took a revision to the Calcutta High Court which was heard by Debabrata Mookerjee, J. Before him three contentions were raised (1) that the Chief Presidency Magistrate erred in examining the witnesses himself after he had received the result of the enquiry held by Mr. A. B. Shyam, 346 another Magistrate, under section 202, Code of Criminal Procedure; (2) the learned Magistrate misunderstood the scope of sections 202 and 203 and misdirected himself by insisting upon a standard of proof which the law did not require at the initial stage when the only question was whether the process should issue or not and the third contention related to the power of revision of High Court under section 439 when dealing with orders of a Chief Presidency Magistrate. The learned Judge held against the complainant, Pramode Ranjan Sarkar on the points that were raised before him. He held that it was open to the Chief Presidency Magistrate to examine witnesses; (2) the learned Magistrate had not misdirected himself in regard to the scope of sections 202 and 203 and that he could dismiss the complaint if in his judgment there was no sufficient ground for proceeding. He also held that the order of Magistrate was liable to be interfered with if it was made in disregard of the rules of procedure or it was so grossly improper or so palpably incorrect as to require a revision in the interest of justice. The learned judge then examined the evidence which had been produced before the Magistrate and taking the various circumstances into consideration discharged the rule and dismissed the revision, holding that the complainant Pramode Ranjan Sarkar was guilty of undue delay in taking action against the appellants, because he came to know on October 13, 1953, as to the forged nature of the documents and did not take any action till he wrote to the Police Commissioner to which he got reply on February 16, 1954, and he did not file any complaint or take any action till march 17, 1954, and this delay was unexplained. He also held that the complainant Pramode Ranjan Sarkar 's belief in regard to forgery was not established by the evidence which had been produced because (1) he came to know about the agreement complained of in February, 1953, but he discredited it and did 347 not take any action; (2) that when the agreement came up for renewal on September 22, 1953, for another term of the 7 years he did not oppose it on the ground that it was a forgery but on legal grounds. The learned judge did not believe the evidence of Pramode Ranjan Sarkar that up to February, 1954, he considered it absurd that there could be such a document. He referred to the correspondence which passed between the complainant and the appellant P. N. Taluqdar. He also considered the evidence relating to the watermark and the circumstances in support of the allegation of the theory of forgery and not being satisfied with the evidence he dismissed the revision petition and thus the order of the Chief Presidency Magistrate Mr. Chakraborti was upheld. It may be pointed out that on behalf of complainant Pramode Ranjan Sarkar an application was made on June 6, 1955, drawing the attention of the Court to the fact that on the sheet of a paper on which the minutes of the meeting held on January 16, 1948, had been typed there was printed Telephone "City 6091" and that Exchange had not come into existence till December, 1948. It was not stated when the complainant came to know of this fact. The learned Judge did not pass any separate order on this application and did not take it into consideration in his judgment. Against this order an application was made for a certificate under article 134(1)(c) which was dismissed but in that order this fact as to the City Exchange coming into existence in December, 1948, has been taken note of. Pramode Ranjan Sarkar then applied to this Court for Special Leave which was granted on February 13, 1956, but the appeal was withdrawn and was therefore dismissed or March 2, 1959. The present respondent Saroj Ranjan Sarkar then brought a complaint under the same sections 348 on April 3, 1959, making the same allegations as were made by his elder brother Pramode Ranjan Sarkar but there is one further allegation as to the Telephone City Exchange which did not find place in the previous complaint, In this complaint after referring to the facts which have been set out above it was alleged in paragraph 5 as follows : "That in order to assume complete control over N. R. Sarkar & Co., Ltd. and the concerns under its Managing Agency, the accused, entered into a criminal conspiracy with each other and others unknown, to dishonestly and fraudulently forged a Deed of Agreement, a Deed of Transfer and make a false document, to wit, minute book of N. R. Sarkar & Co. Ltd., and in pursuance thereof dishonestly and fraudulently forged and/or caused to be forged and used as genuine the said documents. " The grounds for forgery were that the unregistered deed dated January 19, 1948, was engrossed on a stamp paper purchased in the name of M/s. P. D. Himmatsinghka & Co; that the late N. R. Sarkar was on leave granted by the company and he never attended any meeting of the Board for more than four years as long as he was a Finance Minister; that the signature of Mr. N. R. Sarkar on the resolution dated January 16, 1948, was forged; that during the lifetime of N.R. Sarkar it was never given out by the appellant P. N. Taluqdar that he had been appointed a Managing Director, that in none of the papers and correspondence and resolutions of the Board until September, 1953, does it appear that the appellant, P. N. Taluqdar, was its Managing Director; that the appellant, P. N. Taluqdar continued to hold his post in the Hindusthan Cooperative Insurance Society Ltd. up to the end of July, 1953; that the signature in the deed of appointment was halting and appeared to be a forgery even to the naked eyes; that the resolution 349 for renewal for seven years was passed in spite of the protest of Pramode Ranjan Sarkar who was a director of N. R. Sarkar & Co. Ltd., and inspection of the deed of appointment was not given to Pramode Ranjan Sarkar in spite of his demands. It was further alleged that the resolutions of the Board of Directors were all on loose sheets of paper, that the signature on the resolutions were forged; that there was internal evidence to show that the genuine minutes book had been dishonestly changed; that the minutes of the proceeding of the Board of Directors said to have been held on January 16, 1948, were on a typed sheet; that the Telephone No. "City 6091" was printed thereon and the City Exchange was not in existence in January, 1948, but came into existence in December, 1948. It was prayed that the accused named therein which included the two appellants be proceeded against under sections 467, 471 read with section 109 of the Indian Penal Code. It will be noticed therefore that all the allegations made by Saroj Ranjan Sarkar are the same as those made by Pramode Ranjan Sarkar except in regard to the City Exchange Telephone Number. This complaint was accompanied by an affidavit not of complainant Saroj Ranjan Sarkar but of Shanti Ranjan Sarkar, his nephew. In paragraphs 1 to 7 of this affidavit he stated that the facts in regard to the Calcutta City Exchange were matters of public history as they were duly published in the columns of "statesman" dated December 29, 1948, and he also stated "that I am aware of the facts and circumstances stated above," but he did not say as to when he came to know about the City Exchange matter. It may also be noted that in the application which was made by the complainant Pramode Ranjan Sarkar in the High Court before Debabrata Mookarjee J., it was submitted that judicial notice be taken of the new 350 telephone exchange under section 57 but it was not stated as to when that complainant came to know about the new Telephone Exchange Number. That fact has been stated in the affidavit of Shanti Ranjan Sarkar in almost the same vague manner. The learned Chief Presidency Magistrate, who took cognizance of the second complaint, Mr. Bijoyesh Mookerjee, after considering the whole material placed before him issued process against the appellants only. He held that there was no delay on the part of the respondent in making the complaint that the previous complaint and the result thereof was no bar to the filing of the second complaint; that the complaint was not brought with a view to blackmail the accused including the appellants, that what the brother of the respondent did, did not lay the respondent open to the charge of blackmail. On the merits he took into consideration the fact in regard to the City Exchange of which according to the learned Magistrate he could take judicial notice under section 57 of the Evidence Act. He compared various signatures of the late N. R. Sarkar and after considering the elaborate order of his predecessor he said : "I have read and re read it and with respect too due to one of his eminence, but it is my misfortune that I have not been persuaded. There are various other considerations which point to the ineluctable prima facie conclusion of forgery. But it is not proper that I burden my order with all that at this stage." He held that he was satisfied about the truth of the allegations and there was sufficient ground for proceeding against the appellants under section 204, Criminal Procedure Code and he therefore issued process against them but did not issue any process against Dr. N. N. Law and Amiya Chakravarty who were accused Nos. 3 and 4. 351 Against this order a revision was taken by the appellants to the High Court and rule was issued against the Chief Presidency Magistrate to show cause why his order should not be set aside. He showed cause and the matter was heard by a Division Bench consisting of P. B. Mukerjee and H. K. Bose, JJ., and the matter was referred to a larger Bench because of the importance of the questions of law which arose in the case. Three questions were raised before the Special Bench, (1) whether under the appellate side rules of the High Court it was competent for a Division Bench consisting of two judges to refer any matter to a larger bench for decision in a criminal matter; (2) whether a second complaint could be entertained on the same facts after a previous complaint had been dismissed; and (3) whether the complaint could be taken cognizance of by the Magistrate in the absence of a sanction under section 196A of the Criminal Procedure Code. On all these three points the finding of the Special Bench was against the appellants. It held that the attention of the Chief Justice having been drawn to the fact that the case involved questions of importance it was open to him in the exercise of his inherent jurisdiction to refer the case to a larger bench and therefore the reference was not illegal. In regard to the filing of a second complaint it held that a fresh complaint could be entertained after the dismissal of previous complaint under section 203 Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming. The Bench was of the opinion that the fact in regard to the City Telephone Exchange was a new matter and because Pramode Ranjan Sarkar was not permitted to take a photostat copy of the Minutes Book, it was possible that his attention was not drawn to the City Telephone Exchange which was not in existence at the relevant time and that there was sufficient reason for Pramode 352 Ranjan Sarkar for not mentioning the matter of City Exchange in his complaint. It also held that the previous Chief Presidency Magistrate Mr. Chakraborty had altogether ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of N. R. Sarkar and he had no good reasons for not accepting their evidence. It could not be said therefore that there was a judicial enquiry of the matter before the previous Chief Presidency Magistrate; the decision was rather arbitrary and so resulted in manifest miscarriage of justice. The Court was of the opinion therefore that there was no reason to differ from the finding of the Chief Presidency Magistrate Mr. Bijoyesh Mukerjee and that there was a prima facie case against the appellants. The rules were therefore discharged. It is against this judgment and that the appellants have come in appeal to this court by Special Leave. Four appeals were filed by the two appellants, two against the order of the High Court of Calcutta dismissing the revision petition and two against the order of the High Court refusing a certificate under article 134 (1) (c) of the Constitution. As this Court granted special leave against the order of the High Court dismissing the Revision Petition the two appeals against the order refusing a certificate under article 134 (1) (c) became infructuous and therefore were not pressed. It is only the appeals against the judgment and order of the High Court refusing to quash the order of the learned Chief Presidency Magistrate, Mr. Bijoyesh Mukerjee, which survive for decision. The first question to be decided and that is the most vital question in the case is, whether the second complaint filed by Saroj Ranjan Sarkar respondent should have been entertained ? This complaint was brought on April 3, 1959, the appeal in this Court brought by Pramode Ranjan Sarkar 353 the complainant in the previous complaint, having been withdrawn on March 2, 1959. The respondent holds no shares in N. R. Sarkar & Co. Ltd. He is a beneficiary under the deed of trust in trust in regard to certain number of shares. In regard to the unregistered deed of agreement appointing P. N. Taluqdar as Managing Director of N.R. Sarkar & Co. Ltd., he can have no interest. As regards the transfer deed of 1,000 shares of N. R. Sarkar & Co. Ltd., which it is claimed were entrusted to P. N. Taluqdar appellant for the benefit of the respondent and his brothers, a separate suit has been brought and is not the subject matter of the criminal complaint. There then remains the resolution of the Board dated January 16, 1948, which stands on the same footing as the appointment to Managing Directorship and is connected with that matter and relates to it. Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are ss.200, 202 and 203. Section 200 deals with examination of complainants and sections 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of sections 202 and 203 were laid down in Vadilal Panchal vs Dattatraya Dulaji Chadigaonker(1). The scope of enquiry under section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and section 203 lays down what materials are to be considered for the purpose. Under section 103 Criminal Procedure Code the judgment which Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to materials and from his judgment whether or 354 not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under section 202, Criminal Procedure Code, and has judicially applied him mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into Allah Ditta vs Karam Baksh(1), Ram Narain Chaubey vs Panachand Jain(2), Hansabai vs Ananda(3), Doraisami vs Subramania (4). In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above quoted and adopted the opinion of Macleam, C. J. in Queen Empress vs Dolegobinda Das (5) affirmed by a full Bench in Dwarka Nath Mandal vs Benimadhab Banerji (6). It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. The Chief Presidency Magistrate in the complaint filed by respondent, held that the second complaint was not unduly delayed; that section 203 is not a bar to the second complaint and that the 355 complaint was not with a view to blackmail the persons accused. On the merits he held that the minutes of the proceedings of January 16, 1948 were typed on a sheet of paper with Telephone No. "City 6091" and the City Exchange case into existence later in the year and that on his comparing the signatures of N. R. Sarkar it appeared that the signature was a forgery. He said: "And governing myself by this test, I held that forgery is there prima facie and only prima facie. " These then were to facts on which the learned Presidency Magistrate Mr. B. Mukherjee came to a conclusion different from that of his predecessor Mr. Chakravorti, who had inquired into the complaint of Pramode Ranjan Sarkar, as to the forged nature of the signatures of Mr. N. R. Sarkar. Taking first the question of fresh evidence, the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is, in our opinion, a correct view of the law. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on. That in our opinion, is not a correct view of the law. The next point to be considered is, was the mention of the telephone number "City 6091" on the note paper on which the resolution was typed a matter of which the previous complainant Pramode Ranjan Sarkar was unaware and was it a fact which with reasonable diligence he could not place before the Magistrate. In the complaint filed by Pramode Ranjan Sarkar no reference was made to the City Exchange. It is true that the question was sought to be raised as a fresh piece of evidence before Debabrata Mookerjee, J. and it was not 356 considered by him but it was not stated before him when the then complainant came to know of this fact. According to a copy of the Day Book entry by Mr. Bimal Chandra Chakravarty, Solicitor for the previous complainant Pramode Ranjan Sarkar, dated October 13, 1953, photostat copies were taken of the share transfer deed and portions of the agreement dated January 19, 1948 and inspection of the Minutes Book was also taken but the request of the complainant to take photostat copies of certain resolutions was refused, by the appellant section M. Basu. It is significant that according to this entry, Santi Ranjan Sarkar was acting as the agent of Pramode Ranjan Sarkar and was present at the time of the inspection. After this inspection was taken, Pramode Ranjan Sarkar discussed with his Legal Advisers the peculiarities noted in the impugned documents. This is what he (Pramode Ranjan Sarkar) stated as a witness before the Chief Presidency Magistrate. His evidence also shows that he inspected the Minutes Book though after much "recriminations." Witness Shibakali Bagchi stated that Minutes Book of N. R. Sarkar & Co. Ltd., was examined by him and that it appeared to him that the book was not genuine and Pramode Ranjan Sarkar complained that some of the signatures were forged. It appears from the statement of Pramode Ranjan Sarkar that the appellant section N. Basu, did not let them take photographs of some of the pages of the Minutes Book. It is not stated by either Bagchi or Pramode Ranjan Sarkar of what documents they wanted to take photographs which were refused. In the statement of Bimal Chandra Chakrabarty, the Solicitor, the same statement is made i. e, they wanted to take photographs of some documents which were not allowed to be taken. The correspondence produced by Pramode Ranjan Sarkar in his complaint proceedings shows that the Minutes Book was produced for his inspection and was inspected. Debabrata Mookarjee, J., in dealing with the 357 resolution of January 16, 1948, said that it was not possible on the materials available considered prima facie that the Magistrate 's finding suffered from such a grave impropriety as to require interference by the Court. He was of the opinion that the complainant could not have been unaware of the resolution of January 16, 1948. This he concluded from the following; that on his own case Pramode Ranjan managed the affairs of the Company along with the appellant P. N. Taluqdar; that although the proceedings of the Board dated September 22, 1953, referred to the resolution of January 16, 1948 yet the only protest made against it by Pramode Ranjan Sarkar was the alleged legal difficulties consequent on renewal of the appointment but its genuineness was not then questioned and it was questioned for the first time on March 17, 1954, when the complaint was lodged. Against the judgment and order of Debabrata Mookerjee J., Special Leave to appeal to this Court was obtained and one of the points taken in the application was that the resolution was typed on a sheet of paper bearing Telephone No. City 6091 although this Telephone Exchange did not come into existence till December 28, 1948. It is significant that Pramode Ranjan Sarkar did not mention when he came to know about the existence of this new fact. It was not, therefore, made clear to the learned Judge at least upto that stage as to when, before or after the filing of the first complaint Pramode Ranjan Sarkar came to know about the existence of this piece of evidence to which so much importance is attached. Debabrata Mookerjee, J., also said in his judgment that the affairs of the Company were managed by Pramode Ranjan Sarkar and the appellant P. N. Taluqdar and that it was difficult to believe that he (Pramode Ranjan) had no access to the Minutes Book which showed that he himself 358 had presided over several meetings and also that there was nothing extraordinary about the proceedings being typed on separate sheets of paper and the sheets of paper being pasted in that Minutes Book because on some of them there were his own signatures and it was, difficult to believe that tampering with the records went on "systematically" for several months without Pramode Ranjan Sarkar having seen the book or detected the tampering. It was, therefore, impossible to blame the previous Chief Presidency Magistrate if he held in those circumstances that there was no forgery in the Minutes Book or tampering with it. The following passage from the learned Judge 's judgment is significant: "Photographs of the impugned documents were taken on the 13th October when the Minutes Book was inspected. On the last mentioned date the complainant was certain about the entire book having been tampered with; but nothing appears to have been said about it, no challenge made, no protest entered until full five months passed when at last the silence was broken and the complaint was lodged on the 17th March, 1954. It is of course not known what was said about it in the information to the police. These circumstances are explicit in the complainant 's case. That case has only to be presented for these features to be seen, and the Magistrate could not possible have overlooked them. His clear finding is that the Minute Book is genuine. I am not in a position to say it is improper on a prima facie consideration of the evidence offered. " Dealing with the question whether the signatures of N. R. Sarkar were forged, the learned Judge agreed after considering the whole evidence that the signatures were not forged. 359 The complaint of the present complaint Saroj Rajan Sarkar specifically mention the City Exchange and that it came into existence later. He also alleges that this fact was not known to the previous complaint, Pramode Ranjan Sarkar, and in support there is the affidavit of Santi Ranjan Sarkar. Significantly enough in that affidavit also it is not stated as to when the deponent came to know about this alleged new fact of the Telephone City Exchange. All that the affidavit says is that it is a matter of history and was published in the Statesman of December 29, 1948. There is no evidence on the record to show as to when the matter of "City Exchange" came to be known to the persons who were then and two those who are now prosecuting the criminal complaints. The document which we have referred to above i.e., the letter written by the Solicitor dated October 13, 1953 shows that Santi Ranjan Sarkar was present as agent of Pramode Ranjan Sarkar at the time of the inspection. The complaint filed by Saroj Ranjan Sarkar states: "That with great difficulty the documents in question were inspected, certified true copies of the alleged resolutions of the Board meetings were obtained and photostatic copies of material portions including alleged signatures of late Sri Sarkar on the said Deed of Agreement and on the Deed of Transfer could be obtained, as will appear from correspondence in this respect. " In the complaint filed by Pramode Ranjan Sarkar exactly the same language was used in paragraph 10 of the previous complaint. If certified copies were obtained by the complainant Pramode Ranjan Sarkar and inspection was taken by Santi Ranjan Sarkar for Pramode Ranjan Sarkar and by his Solicitor and the facts are as they are 360 stated above, it is difficult to hold that the fact in regard to the City Exchange was not know to the complainant in the first complaint and was a new fact which could not, with reasonable diligence, be adduced by him. The next question which arises is whether the order of the previous Chief Presidency Magistrate who decided Pramode Ranjan 's complaint, was manifestly absurd or unjust and resulted in a manifestly unjust order. The Special Bench of the High Court has held that it was so because (1) the Magistrate ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of the late Mr. N. R. Sarkar; (2) he "set aside" the report of the enquiring Magistrate, Mr. A.B. Syam for reasons which cannot be held to be proper and judicial reasons; (3) He said in his order that Mr. N. R. Sarkar might himself have ante dated the documents thus accepting a possible defence for which there was no basis before him; and (4) he relied upon his own comparison of the disputed signatures of Mr. N. R. Sarkar. On these grounds the Special Bench was of the opinion that the decision of the first Magistrate was rather arbitrary and so resulted in manifest miscarriage of justice. The question is whether Mr. N. C. Chakrabarti, the previous Presidency Magistrate had applied his mind to the evidence which was produced before him and keeping in view his functions as a Magistrate, he gave his decision. It is not necessary to refer to the various findings given by him. Thy are set out and considered in the judgment of Debabrata Mookerjee, J. and he (that learned Judge) has commented upon all the infirmities in that order which were brought to his notice. The previous Chief Presidency Magistrate found that the Deed of Agreement dated January 19, 1948 was not a forged document. He referred 361 to the evidence without analyzing it. He said that the complainant examined persons who know the signature of the late Nalini Ranjan Sarkar and they deposed as to the manner in which Nalini Ranjan Sarkar used to sign. After making a reference to the gist of the evidence submitted before him and to the report of Mr. A. B. Syam, Presidency Magistrate, he (the learned Chief Presidency Magistrate) came to the conclusion: "For the reasons above, I find that the evidence on handwriting including the opinion of the Handwriting Expert does not support the complainant 's version. " Again in a later part of his order he found that the resolution of the Board of Directors dated January 16, 1948 also was not forged and that the endorsement of the appellant section M. Basu, was nothing more or less then the authentication of the common seal of the Co., and he, therefore, agreed with the finding of Mr. A.B. Syam that there was no case against section M. Basu, appellant but disagreed with him in regard to the other appellant, P. N. Talukdar. When the matter went to the High Court, Debabrata Mookerjee, J., first considered as to when the revisional power of Court to interfere should be exercised. Then he discussed the seven circumstances which were relied upon by the then complainant Promode Ranjan Sarkar in support of the allegations of forgery. After dealing with these various points raised he held: "It may be that one or two items of evidence were not specifically referred to in the Order but that does not necessarily imply that those items of evidence were not present to the mind of the Magistrate. After all a Magistrate is only required to record briefly his reasons for dismissing 362 a complaint. The Magistrate 's order, I think, is fairly well. " The learned Judge then discussed the question of delay and held that Pramode Ranjan Sarkar had considerably delayed the bringing of the complaint. He also held that the Deed of Agreement which was alleged to be a forgery had not been so proved and he gave various reasons, one of them being that at the meeting of the Board of Directors dated September 22, 1953, the then complainant did not oppose the renewal on the ground that the Agreement was forged or did not exist, but on legal grounds. Then the learned Judge referred to the correspondence which had passed between the then complainant Pramode Ranjan Sarkar and the appellant P.N. Talukdar and said: "It is therefore clear that the evidence which the complainant offered in support of his case contained prima facie on the first aspect sufficient materials for distrusting the truth of the story and I cannot see how the Magistrate 's order can be challenged in revision on the ground of impropriety as respects the Deed of Agreement. The learned Judge then referred to other aspects of the case i.e., the evidence of the Deputy Controller of Stationery, P.W. 15. He also referred to finding of the previous Chief Presidency Magistrate that it was difficult to believe that the complainant should have been unaware of the resolution of January 16, 1948 and after referring to all these various questions raised, he dismissed the petition. Can it be said in these circumstances that there has been a manifest error resulting in the passing of an unjust order ? That in our opinion, has not been made out. The order of Debabrata Mookerjee J., who reviewed the findings of the previous Chief Presidency Magistrate, shows that the criticism that that the learned Magistrate did not 363 consider the whole evidence is not justified. Taking the evidence into consideration he came to the conclusion that there was no ground to proceed and, therefore, refused to issue process. In his opinion the evidence was not worthy of credit and he was not satisfied with the correctness of the complaint and dismissed it as he was entitled to do on those findings. See Gulab Khan vs Gulam Mohammad Khan (1) which was approved in Vadilal Panchal v Dattatraya Dulaji Chadigaonker(2). In the circumstances the order made by the previous Chief Presidency Magistrate was not any manner manifestly absurd unjust or foolish, nor can it be said that the Magistrate ignored in any principles which were necessary to apply under sections 202 and 203 of the Criminal Procedure Code nor is the order contrary to what was said in Ramgopal Ganpatrai Ruia vs State of Bombay (3). That was a case in which the rule in regard to the commitment proceedings and the power of the Committing Magistrate to commit was discused and the expression "sufficient grounds" in sections 209, 210 and 213 of the Code of Criminal Procedure was interpreted. That was not a case dealing with the powers of the Magistrate under sections 202 and 203 which was specifically raised and decided in Vadilal Panchal 's case (3). In Ramgopal Ganpatrai Ruia 's case (3) the following observations of Sinha J., (as he then was) in regard to the expression "sufficient grounds" are pertinent: "The controversy has centred round interpretation of the words "sufficient ground", occurring in the relevant sections of the Code, set out above. In the earliest case of Lachman vs Juala All. 161, decided by Mr. Justice Mahmood in the Allahabad High Court, governed by section 195 of the Criminal Procedure Code of 364 1872 (Act No. X of 1872), the eminent judge took the view that the expression "sufficient grounds" has to be understood in a wide sense including the power of the magistrate to weigh evidence. In that view of the matter, he ruled that if in the opinion of the magistrate, the evidence against the accused "cannot possibly justify a conviction" there was nothing in the Code to prevent the Magistrate from discharging the accused even though the evidence consisted of statements of witnesses. who claimed to be eye witnesses, but whom the magistrate entirely discredited. He also held that the High Court could interfere only if it came to the conclusion that the Magistrate had committed a material error in discharging the accused or had illegally or improperly underrated the value of the evidence. Thus, he overruled the contention raised on behalf of the prosecution that the powers of the committing Magistrate did not extent to weighing the evidence and that the expression "sufficient ground" did not include the power of discrediting eye witnesses. Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words "sufficient grounds" have continued throughout. That decision was approved by a Division Bench of the Bombay High Court In re Bai Parvati Bom. 163 and the observations aforesaid in the Allahabad decision were held to be an accurate statement of the law as contained in section 201 of the Code, as it now stands. The High Court of Bombay held in that case where the evidence tendered for the prosecution is 365 totally unworthy of credit, it is the duty of the Magistrate to discharge the accused. It also added that where the magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the case to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence." Debabrata Mookerjee J., in the revision against the order of the previous Chief Presidency Magistrate accepted the finding of that Magistrate in regard to the delay. The present complaint out of which this appeal has arisen was filed after the appeal in this Court arising out of this complaint was withdrawn by Pramode Ranjan Sarkar. Can it be said that this is not an abuse of the process of tho Court one brother who was a director of the Company and who would be interested in the Managing Directorship of the Company and the resolutions passed in regard to that office, brought a complaint in 1954 which was dismissed both by the Magistrate and the High court. Appeal against the order of dismissal brought in this court was withdrawn on March 12, 1959. It was alleged in his complaint by Pramode Ranjan Sarkar that the present respondent was celluding with appellant, P. N. Talukdar, who had offered his some kind of monetary inducement and that fact was deposed to by the present respondent himself as a witness in the previous complaint. He waited all this time although he knew about the forged signatures of his late brother on various documents and after at least the lapse of five years he brought a fresh complaint on the same facts. Neither he has disclosed as to when he came to know about the City Exchange nor have Santi Ranjan Sarkar and Pramode Ranjan Sarkar, which cannot therefore be said to be a fact which could not with reasonable diligence be adduced at the time of the previous complaint. 366 The argument that this Court gave Special Leave in the case of Pramode Ranjan Sarkar and therefore there were points of importance is, in the circumstances of this case, a neutral circumstance and that fact cannot be used as a point in favour of the respondent. In these circumstances, we are of the opinion that the bringing of the fresh complaint is a gross abuse of the process of the Court and is not with the object of furthering the interests of justice. In regard to the power of reference to a larger Bench, we are in agreement with section K. Das, J, and in the circumstances it is unnecessary to express an opinion as to the applicability of section 196A Criminal Procedure code to the facts of this case. For these reasons we allow the appeals, set aside the order of the High Court and of the learned Chief Presidency Magistrate and dismiss the complaint. BY COURT: In accordance with the judgment of the majority, the appeal is allowed. Appeal allowed.

On March 17, 1954, Promode Ranjan a brother of N. R. Sarkar filed a complaint under section 200 Code of Criminal Procedure against Pramathanath and section M. Basu alleging offences punishable under sections 467, 471 and 109 of the Indian Penal Code, before the Chief Presidency Magistrate in respect of a document appointing Pramathanath as the Managing Director of N. R. Sarkar & Co. and the minutes of the Board meeting resolving the same. It was alleged therein that the signatures of N. R. Sarkar on those documents were forgeries. After considering the evidence of the Handwriting Expert the Magistrate dismissed the complaint. Promode Ranjan preferred a revision petition to the High Court. The High Court dismissed the revision Petition. By an application dated January 6, 1956, when the revision petition was pending, attention of the High Court was drawn to the fact that the minutes dated January 16, 1948, had been typed on a letter bearing at the top in print "Telephone City 6091" where as the City Exchange had not come into existence till December 1948. The Supreme Court granted special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn. On April 3, 1959, Saroj Ranjan, another brother of N.R. Sarkar, laid a complaint on the same facts and allegations 298 against the appellants, in addition alleging the further fact about the City Exchange in support of the allegation that the minutes were forged dishonestly and fraudulently and used as genuine. Neither in this complaint nor before the High Court had it been stated as to when it came to be known that on the purported date of the minutes the City Exchange was not in existence. The Presidency Magistrate issued process against the appellants. The appellants went up in revision to the High Court. The matter was first heard by a Division Bench and was later referred to a larger Bench of three Judges which dismissed the revision petition. In these appeals on special leave it was contended by the appellants that the second complaint ought not to have been entertained, that the constitution of the special Bench was illegal and that as the complaint alleged criminal conspiracy sanction under section 196A of the Code of Criminal Procedure was required. ^ Held, that the enquiry contemplated by sections 200 to 204 Code of Criminal Procedure is for the purpose of enabling the Magistrate to find out if sufficient grounds exist for issuing process. Vadilal Panchal vs Daltaraja Dulaji Chandigaonkar, , Gulab Khan vs Gulab Mohammad Khan A.I.R. 1927 Lah. 30 and Ram Gopal Ganpat Ruia vs State of Bombay, referred to. Per section K. Das, J. The law does not prohibit altogether the entertainment of a second complaint when a previous complaint on the same allegations has been dismissed under section 203 of the Code of Criminal Procedure. But a second complaint containing more or less the same allegations can be entertained only in exceptional circumstances. It is not possible nor desirable that the exceptional circumstances must be stated with particularity or precision. Generally speaking, the exceptional circumstances may be classified under three categories: (1) manifest error in the earlier proceeding, (2) resulting miscarriage of justice, and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. Where the previous order of dismissal was passed on an incomplete record or on a misunderstanding of the nature of the complaint, a second complaint may be entertained. Where a Magistrate misdirects himself as to the scope of an enquiry under s 202, Code of Criminal Procedure, and the mistake, made gives a wrong direction to the whole proceeding on the first complaint, the order of dismissal passed thereon would be due. to a manifest error resulting in a miscarriage of justice. In such a case, a second complaint is entertainable. 299 Per Kapur and Hidayatullah, JJ. There is no legal bar to the entertainability of a second complaint. It is only when the Magistrate had misdirected himself, with regard to the scope of the enquiry under section 203, Code of Criminal Procedure, or has passed an order misunderstanding the nature of the complaint or the order is manifestly unjust or absurd or the order is based on an incomplete record can it be said that there is such a manifest error or a manifest miscarriage of justice that a second complaint on the same allegations may be entertained. The other exceptional circumstances in which a second complaint may be entertained is when it is supported by fresh and further evidence. Case law referred to. In the case of fresh evidence it must be such as could not have been with due diligence on the part of the complaint adduced on the earlier occasion. Queen Empress vs Dole Gobinda Das I.L.R , Dwarkanath Mandal vs Daniradha banerjee, I.L.R. disapproved. Allah Ditta vs Karam Bakshi, Ram, Narain Chowdhary vs Punachand Jain, AIR 1949 Pat. 255, Hansabai vs Ananda, A.I.R. 1949 Bom. 384 and Doraiswami vs Subramania, A I. R. , approved. In the present case permitting the second complaint to proceed would be a gross abuse of process. Held, further, concurring with S.K. Das, J., that the Special Bench was properly constituted. Per section K. Das, J. On the first complaint the Presidency Magistrate had misdirected himself regarding the scope of the enquiry under sections 203 and 204 of the Code of Criminal Procedure and it was a manifest error. The facts about the City Exchange urged and fresh evidence were decisive of a prima facie case for issuing process and it was an exceptional circumstance justifying entertaining the second complaint and not to permit the trial of the case in such circumstances would be a denial of justice. Kumariah vs C. Naicker, A.I.R. 1946 Mad, 167 and Ramanand vs Sheri, I.L.R. 1. 56 All 425, referred to. Though Chapter II of the Rules of the High Court (Appellate Side) in terms applies to Civil cases, their substance could be applied to criminal cases by the Chief Justice in constituting a larger bench. The substance of the allegations in the complaint amounted to an offence of abetment by conspiracy under 300 section 107 Indian Penal Code and not the offence of Criminal Conspiracy as defined by section 120A and therefore sanction under section 196A of the Code of Criminal Procedure was not necessary. The distinction between the two offences lies in that the first requires an overt act in pursuance of the agreement whereas the second makes the agreement to do the unlawful act itself punishable. Basirul Hag vs State of West Bengal and Mulachy vs The Queen, , referred to.

Appeal No. 892 of 1963. Appeal by special leave from the judgment and order dated December 22, 1958, of the Assam High Court in Misc. (First) No. 39 of 1955. D.N. Mukherjee, for the appellant. P.K. Chatterjee, for the respondent. 112 The Judgment of RAGHUBAR DAYAL, R.S. BACHAWAT and V. RAMASWAMI, JJ. was delivered by BACHAWAT, J. MUDHOLKAR, J. delivered a separate Opinion. Bachawat, J. The respondcnt is a banking company now in liquidation. The appellant had a combined overdraft and deposit account with the Shillong branch of the respondent. On December 9, 1946, the appellant gave the respondent for collection two cheques for Rs. 8,200 and Rs. 600 respectively drawn on the Bharati Central Bank, Shillong. On receipt of the cheques, the respondent credited the appellant with the sum of Rs. 8,800 in the accounts. The respondent then sent the cheques to the Bharati Central Bank, Shillong for collection. Instead of paying cash, the Bharati Central Bank sent to the respondent a cheque dated December 9, 1946 for Rs. 8,800 drawn by the Bharati Central Bank on the Nath Bank, Shillong in favour of the respondent. The respondent accepted this cheque on its own responsibility without consulting the appellant. On December 10, 1946, the respondent presented the cheque to the Nath Bank for payment. The Nath Bank returned the cheque with the remark "full cover not received". The respondent orally informed the appellant of the non payment of the cheque on the Nath Bank, and on December II, 1946 under oral instructions from the appellant, represented the cheque to Nath Bank for payment. The Nath Bank again returned the cheque with the remark "full cover not received", and the respondent thereupon debited the appellant with the sum of Rs. 8,800 in the accounts. On the same day, the respondent wrote to the Bharati Central Bank demanding cash payment of the two cheques drawn on them and dated December 9, 1946. The respondent also contacted the appellant. Under instructions from the appellant, the respondent accepted from the Bharati Central Bank a demand draft for Rs. 8,800 dated December 13, 1946 drawn by its Shillong Branch on its Calcutta Head Office towards payment of the two cheques. The respondent presented the draft to the Bharati Central Bank, Calcutta for payment, but instead of making payment, the Bharati Central Bank wrote on December 16, 1946 requesting the respondent to obtain payment from its Shillong Branch. The respondent orally communicated this advice to the appellant. On several dates thereafter, the respondent presented the draft to the Bharati Central Bank for payment, but the draft was not paid. On January 2, 1947, the Bharati Central Bank closed its business. On January 11, 1947, the respondent wrote to the appellant stating that it was holding the demand draft as also the cheque on the Nath Bank and would be glad to receive further instructions in the matter for necessary action. As the appeilant refused to give any instructions, the respondent continued to hold the securities on account of the appellant. In respect of the draft, the respondent duly preferred a claim in the liquidation of the Bharati Central Bank, and was admitted as a preferential creditor for the amount 113 of the draft. On January 28, 1947, the appellant wrote to the respondent alleging that the respondent had accepted the demand draft at its own risk and responsibility and was bound to give credit to the appellant for the sum of Rs. 8,800. The dealings between the appellant and the respondent continued, and the last entry in the combined overdraft and deposit account is dated December 29, 1950. On February 26, 1953, a petition was presented in the Assam High Court for the winding up of the respondent. By order dated May 24. 1953, the respondent was ordered to be wound up. On June 28. 1954 the liquidator of the respondent Bank presented an application to the Assam High Court under section 45(D) of the Banking Companies Act, 1949 for settlement of the list of debtors, claiming a decree for Rs. 5,965 8 9 and interest against the appellant. The appellant resisted the claim. The two issues, which are now material, are: (1) Is the suit barred by limitation, and (4) Whether the respondent is bound to give credit to the appellant for the sum of Rs. 8,800? A learned single Judge of the Assam High Court answered both the issues in the negative, and decreed the claim. An appeal preferred to a Division Bench of the High Court was dismissed. The appellant now appeals to this Court by special leave. The main contention of the appellant in the Courts below was that the respondent had accepted the demand draft on its own responsibility. The High Court held that the respondent accepted the draft with the consent and sanction of the appellant. This finding is no longer challenged. But the appellant before us contends that the respondent having credited the appellant 's account with the amount of the two cheques on the Bharati Central Bank and having accepted on its own responsibility from the Bharati Central Bank the cheque dated December 9, 1945 on the Nath Bank ought not to be allowed to say that it received the cheque on account of and as agent of the appellant, and that in any event the respondent acted negligently and in breach of its duty as the collecting agent of the appellant and is bound to give credit for the sum of Rs, 8,800. These contentions in the present form were not raised in the Courts below. Nevertheless, we allowed the appellant to raise these contentions, but we think that there is no substance in them. According to the uncontradicted testimony of the witness called on behalf of the respondent, the two cheques on the Bharan Central Bank were entrusted by the appellant to the respondent for collection. In paragraph 2 of its objections, the appellant admitted that the cheques were entrusted to the responsible for realisation. Beyond doubt, on December 9. 1946 the respondent received the two cheques for collection in the usual way as agent of 114 the appellant and not with the intention of acquiring title to them. On the same day, the respondent credited the appellant 's account with the amount of the cheques before the cheques were cleared. But on December 11, 1946, before the appellant drew upon this amount and as soon as the cheque on Nath Bank received in course of collection of the two cheques was dishonored, the respondent debited the appellant 's account with the like amount. It does not appear that the credit entry in the accounts was contemporaneously communicated to the appellant. Nor does the appellant prove any arrangement that the appellant was entitled to draw against the amount of the cheques before they were cleared. In the circumstances. the fact that the appellant 's account was credited with the amount of the two cheques does not show that the respondent ceased to be an agent for collection of the cheques. The respondent duly presented the cheques on the Bharati Central Bank for payment. Instead of paying the cheques in cash, the Bharati Central Bank sent its own cheque on the Nath Bank. According to the uncontradicted testimony of the witness called on behalf of the respondent, it was not the usual practice of the banks at Shilling to collect cash in all cases in respect of cheques entrusted for collection. When the respondent found that the drawer Bank instead of paying cash offered to pay by a cheque, the respondent acting in good faith in the interests of the appellant, accepted the cheque on its own responsibility. On being informed of the dishonour of the cheque on Nath Bank, the appellant adopted and ratified the respondent 's acceptance of the cheque. and on that footing, asked the respondent to represent the cheque. Subsequently, the appellant instructed the respondent to accept a demand draft drawn by the Bharati Central Bank on the head office in lieu of its cheque on the Nath Bank, and approved of all steps taken by the respondent in the matter of collection of the draft. Instead of disowning the acts of the respondent in respect of the collection of the cheques on the Bharati Central Bank, the appellant ratified them. In the circumstances, it is not open to the appellant now to say that the respondent accepted the cheque on the Nath Bank or the draft of the Bharati Central Bank on the respondent 's own account and not as agent of the appellant. A banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by the customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business and applicable to the matter in hand. The banker is also bound to use reasonable skill and diligence in presenting and securing payment of the cheque and placing the proceeds to his customer 's accounts and in taking such other steps as may be proper, to secure the customer 's interests. In the instant case, it is not shown that the respondent acted negligently or in breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers at Shillong. 115 There is no substance in the further contention of the appellant that by preferring a claim as creditor in respect of the draft in the liquidation of the Bharati Central Bank, the respondent accepted the draft in satisfaction of its dues from the appellant. The respondent owed a duty to the appellant to take steps in the liquidation proceedings for the realisation of the amount of the draft. By preferring the claim the respondent preserved all rights in respect of the draft and acted in the best interests of the appellant. In the circumstances, the Courts below rightly gave appropriate directions on the respondent for giving credit to the appellant for all sums which may be realised by the respondent from the Official Liquidator of the Bharati Central Bank. The Courts below rightly answered issue No. 4 in the negative. The next point in issue is whether the proceedings are governed by article 85 of the Indian Limitation Act, 1908, and if so, whether the suit is barred by limitation. The argument before us proceeded on the footing that an application under section 45(D) of the Banking Companies Act is governed by the Indian Limitation Act, and we must decide this case on that footing. But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act to an application under section 45(D). Now, article 85 of the Indian Limitation Act, 1908 provides that the period of limitation for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties is three years from the close of the year in which the last item admitted or proved is entered in the account; such year to be computed as in the account. It is not disputed that the account between the parties was at all times an open and current one. The dispute is whether it was mutual during the relevant period. Now in the leading case of Hirada Basappa vs Gadigi Muddappa(1). Holloway, Acting C. J. observed: "To be mutual there must be transactions on each side creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations." These observations were followed and applied in Tea Financing Syndicate Ltd. vs Chandrakamal Bezbaruah(2) and Monotosh K. Chatterjee vs Central Calcutta Bank Ltd.(3), and the first mentioned Calcutta case was approved by this Court in Hindustan Forest Company vs Lal Chand(4). Holloway, Acting C. J. laid down the test of mutuality on a construction of section 8 of Act XIV of 1859, though that section did ' not contain the words "where there (1) [1871] Vl Madras High Court Reports. 142, 144. (2) [1931] L.L.R,. 55Cal. 642 (3) (4) 116 have been reciprocal demands, between the parties". The addition of those words in the corresponding article 87 of Act IX of 1871, article 85 of Act XV of 1877 and article 85 of the Act of 1908 adopts and emphasises the test of mutuality laid down in the Madras case. In the instant case, there were mutual dealings between the parties. The respondent Bank gave loans on overdrafts, and the appellant made deposits. The loans by the respondent created obligations on the appellant to repay them. The respondent was under independent obligations to repay the amount of the cash deposits and to account for the cheques, hundis and drafts deposited for collection. There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account. The deposits made by the appellant were not merely complete or partial discharges of its obligations to the respondent. There were shifting balances; on many occasions the balance was in favour of the appellant and on many other occasions. the balance was in favour of the respondent. There were reciprocal demands between the parties, and the account was mutual. This mutual account was fairly active up to June 25, 1947. It is not shown that the account ceased to be mutual thereafter. The parties contemplated the possibility of mutual dealings in future. The mutual account continued until December 29, 1950 when the last entry in the account was made. It is conceded on behalf of the appellant that if the account was mutual and continued to be so until December 29, 1950, the suit is not barred by limitation, having regard to section 45 (O) of the Banking Companies Act. The Courts below, therefore, rightly answered issue No. 1 in the negative. The claim by the respondent on account of interest was contested in the Courts below, but that claim is no longer contested before us. The High Court discussed at length the legal characteristics of a demand draft as also questions relating to the interpretation of section 45(O) of the Banking Companies Act. In view of the contentions raised before us, those questions do not arise, and we do not propose to express any opinion thereon. In the result, the appeal is dismissed with costs. Mudholkar, J. I regret my inability to agree with the judgment of my learned brother Bachawat. This appeal arises out of a petition made under section 45 D of the Banking Companies Act, 1949 (10 of 1949) by the Liquidator of the respondent, the Shillong Banking Corporation for inclusion of the name of the appellant in the list of debtors of the Bank. The liquidator filed a list of 20 debtors of the Company with necessary particulars in Annexure A, to the application. One of the debtors mentioned therein is the appellant and the amount of debt due from him to the Bank is stated therein to be Rs. 5,965 5 9. Annexure A appears to have been prepared in accordance with the rules framed under the Banking Companies Act. The fourth item in the Annexure is "Description of 117 papers, writings and documents, if any, relating to each debt". In respect of this item the following particulars have been set out: "A cheque for Rs. 8,800 on Bharati Central Bank Ltd., Shillong was realised by the Bank 'on behalf of the party ' by a Demand Draft on Calcutta Branch of the Bharati Central Bank Limited, but the said Demand Draft could not be realised due to the suspension of business by Bharati Central Bank Ltd. The Bank 's claim to be treated as preferential Creditor has been admitted. " A notice of this claim having been served on the appellant he preferred an objection before the Court. There, the appellant had contended that the claim of the Bank is barred by time. Paras 2, 3, and 5 of the objection are material and it would be convenient to set them out in full. They run as follows: "2. That it is a fact that this opposite party did give a cheque for Rs. 8,800 to the Bank on the Bharati Central Bank Ltd., Shillong for realisation in 1947 and in normal course it realised the amount in cash but either for its own convenience or for remitting its own money to Calcutta it accepted a draft from the Bharati Central Bank Limited on its branch at Calcutta without any instruction or intimation to this opposite party and also this opposite party withdrew their amount by a cheque after this and if in the meantime the said bank stopped its business this opposite party cannot be held liable for the same. (3) That had the bank not received any cash payment in case of the opposite party 's cheque as it should have received it should have informed them in time. (5) That it is not a fact that the demand draft was accepted by the bank instead of cash payment with any knowledge of this opposite party and as such the claim of the Bank is false and frivolous." Deka J., who heard the application framed four issues one of which related to limitation and the fourth was as follows: "Issue No. 4, whether the plaintiff bank is bound to give credit to the defendant for a sum of Rs. 8,800 covered by a cheque or cheques on the Bharati Central Bank Limited, Shillong Branch?" The only oral evidence tendered was that of Narendra Nath Dutta, Assistant of the respondent Bank. Upon a consideration of the evidence of Dutta and the documents placed on ' record Deka J. found against the appellant on these issues and passed a decree in favour of the Bank for Rs. 5,965 5 9 in addition to Rs. 2,000 by way of interest. He further allowed Rs. 300 as costs and 6 per cent p.a. interest on the decretal amount till realisation. An appeal was preferred by the appellant under the Letters Patent 118 and that having been dismissed he has come up before this court by special leave. It is the case of the respondent Bank that the appellant had a mutual open and current account with the Bank. It is upon that basis that they have met the appellant 's contention that the suit was barred by time. On December 9, 1946 the respondent credited two cheques to the appellant 's account one for Rs. 8,200 and another for Rs. 600 and sent them for collection to the Bharati Central Bank Ltd., Shillong Branch upon which they were drawn. Instead of obtaining cash from the Bharati Central Bank the respondent obtained and accepted from that Bank a cheque on the Nath Bank Limited. This the respondent did, as admitted by Dutta, without consulting the appellant. Dutta has further admitted that the respondent Bank obtained the cheque on their own responsibility. They then presented the cheque to the Nath Bank on December 10, 1946. The Nath Bank returned the cheque with a note "full cover not received". According to the witness the Bank referred the matter to the appellant and with his specific instruction the cheque was presented the next day to the Nath Bank, when also it was returned. Thereafter, the witness proceeds, the respondent connected the appellant for instructions. On December 13, 1946 they accepted a demand draft from the Bharati Central Bank for an identical amount which they sent to their Calcutta Branch for collection. When the demand draft was presented to the Calcutta Branch of the Bharati Central Bank they requested by letter dated December 16, 1946 to present it to the Shillong Branch. Then, according to Dutta. on the advice of the appellant they presented the draft to the Shillong Branch of the Bharati Central Bank. In the meanwhile the Bharati Central Bank had applied for moratorium and this demand draft was not cashed. It would appear that in the proceedings for reconstructing the Bharati Central Bank the respondent asked to be treated as preferential creditors in respect of the amount for which the draft had been made out and have been so treated. It is contended on behalf of the appellant that the respondent having accepted the demand draft on their own responsibility and having sought to be treated as preferential creditors of the Bharat, Central Bank and having in fact been so treated cannot now turn round and say that the appellant 's cheques were not honoured and that, therefore, they are entitled to claim the sum of Rs.5,965 5 9 and interest from him. The question to which I would address myself is whether the respondent has to be regarded as the appellant 's agent only for the collection of these two cheques or whether they received these two cheques for being credited in the mutual and open current account between themselves and the appellant. It is no doubt that where a customer hands in a cheque to his banker for collection the banker accepting the performance of that duty becomes the agent of the customer for the purpose of collection. But if a banker credits a cheque in the customer 's account with the bank would the banker be necessarily deemed to be his agent when he takes the step of collecting the amount 119 payable under the cheque. If the customer makes an endorsement on the cheque to the effect that it is handed in for collection no difficulty would arise. But if there were no such endorsement what would be the position? The accepted position in banking law is that when a banker receives money from a customer he does not hold it in a fiduciary capacity. (see Practice and Law of Banking by H.P. Sheldon, 8th edn. p. 201). As the author points out : "To pay that money is 'deposited ' with a banker is likely to cause misapprehension. What really happens is that the money is not deposited with, but lent to the banker, and all that the banker engages to do is to discharge the debt by paying over an equal amount when called upon. " Sheldon has quoted the following observations of Lord Cottenham in Foley vs Hill (1948). "Money, when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker, who, is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker 's is money known by the principal to be placed there for the purpose of being under the control of the banker; it is then the banker 's money; he is known to deal with it as his own; he makes what profit he can, which profit he retains to himself, by paving back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places . . That being established to be the relative situations of banker and customer, the banker is not an agent or factor, but he is a debtor. " What would be the position if instead of paying in cash the customer hands in cheques or bills? With regard to this Sheldon has said as follows: "In Joachimson vs Swiss Bank Corporation, 1921 Lord Justice Atkin gave an admirable summary of the position. He stated that the banker undertakes to receive money and collect bills for his customer 's account, and that money so received is not held in trust for the customer but borrowed from him with a promise to repay it or any part of it . . against the customer 's written order addressed to the bank at such branch." (pp. 201 202). In the appeal before us the two cheques for Rs. 600 and Rs. 8,200 have not been placed on record and so we do not know in whose favour they were drawn and if they were drawn by the appellant in fayour of "self" what endorsement he had made on the back of the cheques. The cheques could have been drawn by the appellant either in his own favour or in favour of the bank. Whichever be the position the fact remains that these two cheques were credited by him in his account with the respondent. That is not all. Since the appellant had a mutual open and current account 120 with the respondent it may well be that money was owing by him to the respondent on that date and, therefore, he drew these two cheques on the Bharati Central Bank and credited them in his account with the respondent. Or it may be that the appellant merely credited ' the money in his own account even though nothing may have been owing from him to the respondent on that date. Whether it was one or the other the respondents would, with respect to the amounts for which the cheques were drawn, have become actual recipients of the money from the appellant, upon realisation of the cheques drawn by the appellant. Indeed. as the cheques were returned unpaid by the drawee bank the respondent have made a debit entry on December 11, 1960 of Rs. 8,800 against the appellant in his account with them. This would show that the respondent accepted the position that they were acting in this matter not as the appellant 's agents but as payee. This explains why, as admitted by Dutta. the respondent accepted from the Bharati Central Bank cheques on Nath Bank on their own responsibility instead of insisting upon cash. Indeed. as pointed out at p. 300 in Chalmers on Bills of Exchange (8th ed) "consequently an authority to an agent to receive a payment due to his principal is not in itself an authority to receive it by bill or cheque". Therefore, the respondents would not have acted in the way they did had they regarded themselves as merely agents of the appellant for collecting his cheques. Dutta has, in his evidence, stated that no formal note in writing was sent to the appellant by the respondents about the dishonouring of the cheque by the Nath Bank. Nor did they inform him of having debited his account with Rs. 8,800. No doubt, according to him. after a demand draft was issued to them by the Bharati Central Bank the respondents informed the appellant. But after that draft was dishonoured on presentation no information whatsoever was given to the appellant. This would further strengthen the conclusion that the respondents were acting for themselves at every stage after the cheques for Rs. 600 and Rs. 8.200 were credited in his account with them by the appellant. Therefore. though it is true that the sum of Rs. 8,800 was not received by the respondent in cash they must be deemed to have received the sum either by reason of the fact that they obtained from the Bharati Central Bank a cheque for Rs. 8,800 on the Nath Bank or by the acceptance by them of a demand draft drawn by the Bharati Central Bank, Shilling. on their Calcutta Branch. It is difficult to see how they can hold the appellant, whose account with the Bharati Central Bank has been debited by that Bank to the extent of Rs. 8,800, as being still liable upon those cheques. Whatever rights the respondents have. are against the Bharati Central Bank and not the appellant. Indeed, having claimed, as against the Bharati Central Bank to be treated as preferential creditors of that Bank to the rune of Rs. 8,800, particularly on their own showing what was owing to them from the appellant was something less than Rs. 6,000 they cannot now be heard to say that they merely acted as the appellant 's agents. 121 For these reasons, disagreeing with the High Court, I hold that the appellant 's name cannot be included in the list of the respondent 's debtors. I would, therefore, allow the appeal and dismiss the application of the Liquidator under section 45 D of the Banking Companies Act in so far as it relates to the appellant, with costs throughout and would direct further that the respondents pay the appellants costs both here and in the High Court. ORDER BY COURT In accordance with the opinion of the majority, this appeal is dismissed with costs.

The respondents who were interested in a public temple filed a suit against the appellant who was looking after the affairs of the temple. They prayed for his removal from possession of the trust properties, for the rendering by him of true and faithful accounts and for the framing of a scheme. The trial court held that the appellant was liable to render accounts. Having ascertained the amount of principal, it determined the interest payable at an amount equal to that of the principal on the basis of the rule of damdupat. The respondents appealed to the High Court and urged that the rule of damdupat should not have been applied and that compound interest should have been charged against the appellant. The High Court held that the appellant had used the trust moneys in his business and therefore agreed with the contention of the respondents and remanded the case to the trial court for ascertaining the amount due to the temple. In the appeal to the Supreme Court, it was contended that, (i) there were no grounds for making the appellant liable to pay compound interest, and (ii) even if there was liability to pay any interest, it was only for paying simple interest and that the rule of damdupat should be applied. HELD: (i) It had not been proved that the trust funds had been used in the appellant 's business and therefore the appellant was not liable to pay compound interest on the balance of the trust funds with him. [96 G] (ii) In the absence of statutes during the period of suit dealing with public charitable trusts making a trustee liable to pay interest, interest could be charged only on equitable grounds. One such circumstance is, when the Court considers that the trustee ought to have received interest, as when he retains trust money in his hands uninvested. Since the accounts, in the instant case, show that the appellant had retained the principal amount uninvested for over twenty years he would be liable to pay simple interest at the rate of 4 per cent per annum. Even though the interest calculated at that rate exceeded the principal, that entire interest would have to be paid, because, the rule of damdupat would not apply. The principle of damdupat was evolved both as an inducement to the debtors to pay the entire principal and interest at one and the same time in order to save interest in excess of the principal, and as a warning to the creditor to take effective steps for realising the debt from the borrower within a reasonable time, so that, there may not be accumulation of interest in excess of the principal amount. But that rule applies only to cases where a loan is advanced. Though a trustee who had custody of trust funds, has a pecuniary liability to make good those funds if he has used them and may, on the basis of such a liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. [96 H; 97 E H; 99 D; E; 101 E F, H] 92 Sharp vs Jackson, (1899) A.C.419 and Lake, in re Dyer Ex Parte, (1901)1 K.B. 710, referred to.

Civil Appeal No. 6346 of 1983. Appeal by Special leave from the Judgment and order dated the 18th January, 1980 of the Delhi High Court in L.P.A. No. 62 of 1973. D.N. Vohra, Anil Kumar Gupta and Miss Kailash Mehta for the Appellant. S.N. Bhandari and Arunesewar Gupta for the Respondent. The Order of the Court was delivered by CHINNAPPA REDDY, J. Special leave granted. Sadhu Ram was a probationer Bus Conductor whose services were terminated on 7th September, 1967 by the respondent, the Delhi Transport Corporation. On the failure of conciliation proceedings, the Conciliation Officer, Delhi submitted his report to the Delhi Administration under section 12 (5) of the Industrial Disputes Act, whereupon the Delhi Administration referred the following dispute to the Presiding Officer, Labour Court, Delhi for adjudication: "Whether the termination of service, of Shri Sadhu Ram, conductor is illegal and unjustified, and if so what directions are necessary in this respect". The Union on behalf of the workman and the management appeared before the Presiding Officer, Labour Court. On behalf of the management, a contention was raised that the workman had not raised any demand with the management and that there was therefore, no industrial dispute. The reference was accordingly claimed to be incompetent. The Labour Court overruled the contention, holding as a fact that the Union had raised a valid demand with the management. On merits, the Labour Court gave the following finding: "I, therefore, hold that the termination order in respect of this workman is illegal and mala fide and that amounts to colourable exercise of power." Consequently, the management was directed to reinstate the workman with effect from 8th September, 1967 with the full back wages and benefits. The management invoked the jurisdiction of the High Court of Delhi under article 226 of the Constitution questioning the award of the Labour Court. The High Court went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion 727 which in our opinion was an entirely unnecessary exercise. In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings: (i) that the Union had raised a demand with the management and (ii) that the termination of the services of the workman was a mala fide and colourable exercise of power. Delving into the evidence as if it was an appellate Court, and reappreciating the evidence, the High Court thought that one of the documents upon which the Labour Court had relied was a suspicious document; and the High Court went on to find that no demand had been raised and there was no Industrial Dispute which could be properly referred by the Government for adjudication. On those findings a learned single judge of the High Court quashed the Award of the Presiding Officer of the Labour Court. The decision of the learned single judge was affirmed by a Division Bench. The workman has come before us under article 136 of the Constitution. We are afraid the High Court misdirected itself. The jurisdiction under article 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. There was a conciliation proceeding, the conciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court. The High Court appeared to think that the decision of this Court in the Sindhu Resettlement Corporation Ltd. vs The Industrial 728 Tribunal of Gujarat(1) justified its conclusion that the failure of the conciliation proceedings and the report of the Conciliation Officer to the Government were not sufficient to sustain a finding that there was an industrial dispute. This was also what was urged by the learned counsel for the respondents. The High Court was in error in so thinking. In Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat(1), the question really was about the precise scope of the reference made by the Government for adjudication. Throughout it appeared that the only reference that the Government could have made related to the payment of retrenchment compensation which alone was the subject matter of dispute between the parties. The conciliation which failed had also concerned itself with the question of payment of retrenchment compensation and in their claims before the management, the workmen had requested for payment of retrenchment compensation and raised no dispute regarding reinstatement. It was in those circumstances that the court held that there was no industrial dispute regarding reinstatement. We do not see how Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal of Gujarat can be of any assistance to the respondents. Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under article 226 on a mere technicality. Article 226 is a device to secure and advance justice and not otherwise. In the result, we allow the appeal, set aside the judgment of the High Court and restore the award of the Presiding Officer, Labour Court. H.S.K. Appeal allowed.

The appellants who had their own source of generation of electrical energy (generating machinery having been installed and commissioned before 2.1.1973) and were also purchasing electrical energy from another source challenged the correctness of the decision of a Full Bench of the High Court reversing the decision of a Division Bench and holding that a user of electricity was liable to pay electricity duty on consumption of energy from his own source of supply regardless of whether or not he also purchased electricity from some other source indicated in sec. 3(1) (a) and (b). The appellant contended that in view of the user of the expression 'another person ' in sec. 3(1) (c) and sec. 4(1) (c) only those consumers who wholly fell outside the orbit of sec. 3(1) (a) and (b) were exigible to electricity duty under sec. 3(1) (c). The appellant submitted that under Notification dated March 17, 1973 exemption must be granted to all persons having their own source of electricity regardless of the date on which the source generation is installed to save it from challenge under article 14 of the Constitution of India. In Civil Appeal 1312 the State of U.P. challenged the correctness of the decision of the Division Bench. Allowing the Appeal No. 1312 and dismissing other appeals, ^ HELD: The duty was chargeable in respect of energy consumed by a person from his own source of generation regardless of the fact that he 'also ' purchased electricity from other source indicated in sec. 3(1) (a) and sec. 4(1) (a). [671 G] On a plain reading of sec. 3(1) (c) it is evident that duty has been levied on the energy consumed by a person from his own source of generation without anything more. The fact that the user of electricity from his own source of generation purchases electricity from some other source as well, is an altogether irrelevant factor from the stand point of liability imposed by the said provisions. Be it realized that duty is levied on the consumption of energy The 667 taxing event being the consumption of energy, the source from which the electricity is acquired would become altogether irrelevant. 3(1) as also Sec. 4(1) has to be read as a whole and has to be interpreted in a harmonious and meaningful manner. A person having his own source of energy who also purchases energy from another source indicated in sec. 3(1 j (a) will be covered by 3(1) (a) to the extent he purchases electricity from such a source, and will be equally covered by sec. 3(1) (c), in so far as he consumes energy from his own source of generation. He will be covered by both the provisions read conjointly. The same reasoning applies in the context of clauses (a) (b) and (c) of sec. There is no rational basis for exonerating a person from payment of duty merely because he has his own source of generation and he also purchases electricity from some other source. In fact it will be irrational to do so and it would give rise to an anachronism. Why make him pay 'only ' if he generates his own energy and why exempt him altogether merely because he 'also ' purchases from some other source ? [670 D H] As acute shortage of power was being experienced there was a need to encourage the consumers to acquire their own source of energy with a view to reduce or lessen the burden on the existing sources of electricity generation. Obviously this purpose can be achieved only by granting the exemption prospectively to those consumers who install their own source of generation of energy pursuant to the concession being granted under the provision for exemption. Those who already had their own source of generation of energy need no such encouragement in respect of the source of generation, already installed. If they wanted to further augment their own source or generation of energy they would also be entitled to exemption in respect or the 'additional ' source of generation installed 'after ' the date specified in the notification. The classification is, therefore, rational, purposeful, as also meaningful, and it is calculated to effectively serve the real purpose of granting exemption. Article 14 cannot be invoked in a situation like this to successfully assail that part of the notification whereby the date of installation has been made the precondition for qualifying the exemption. [672 G 673 B] State of Uttar Pradesh vs Jageshwar, ; referred to.

Civil Appeals Nos. 525 and 526 of 1960. Appeals from the judgment and order dated March 20, 1959, of the Orissa High Court in O.J.C. No. 12 of 1959. 382 A. Viswanatha Sastri, B.R.L. Iyengar and T. M. Sen, for the appellant (In C.A. No. 525/60) and respodent No. 1 (in C.A. No. 526 of 1960.) B. P. Maheshwari, for the appellants (in C.A. No. 526/60) and Respondents Nos. 2 to 8, 10, 13 to 16, 19 21, 23, 25, 27, and 28 (in C.A. No. 525/60). A. Ranganadham Chetty. A. V. Rangam, section Mishra, A. Vedavalli and R. Patnaik, for respondent No. 1 (in C.A. No. 525/60) and 2 (in C.A. No. 526 of 60). December 22. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These two appeals are directed against the order passed by the High Court of Orissa under article 226 of the Constitution striking down as unconstitutional sections 4 and 5 (1) of orissa Ordinance I of 1959 promulgated by the Governor of Orissa on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. B. K. Bose against the State of Orissa and 27 persons who were elected Councillors of the Cuttack Municipality, including the Chairman and the Vice Chairman respectively. Appeal No. 525 has been filed by the State of Orissa whereas Appeal No. 526 is filed by the said Municipal Councillors. The appellants in both the appeals obtained leave from the Orissa High Court to appeal to this Court. It appears that during December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 Orissa (XXXIII of 1950) (hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960 were declared elected as Councillors. From amongst them, Manmohan Mishra was elected the Chairman and Mahendra Kumar Sahu the Vice Chairman. Mr. B. K. Bose, who is an Advocate practising in Cuttack and a resident within the municipal limits of Cuttack, 383 had contested the said elections as a candidate from Ward No.13. He was, however, defeated. Thereupon, he presented an application to the High Court (O.J.C. No. 72 of 1958) to set aside the said elections. To this application he impleaded the State of Orissa and the 27 elected Councillors. In his petition Mr. Bose alleged that the elections held for the Cuttack Municipality were invalid and he claimed an injunction restraining the 27 respondents from functioning as elected Councillors and the Chairman and the Vice Chairman amongst them from discharging their duties as such. The respondents to the petition traversed the allegations made by Mr. Bose and urged that the elections were valid and that the petitioner was not entitled to any relief under. article 226. The High Court upheld the contentions raised by the petitioner. It came to the conclusion that the qualifying date for determining the age qualification of voters under s.13 of the Orissa Municipal Act had been published by the State Government only on January 10, 1958, though the preliminary electoral rolls had already been published on December 23, 1957. In consequence, the claims and objections had been invited for a period of 21 days from the said date to January 12, 1958. As a result of the delay made in publishing the qualifying date for the determination of age qualification of voters, the citizens of Cuttack were, in fact, given only two days ' time to file their claims and objections, whereas under the relevant Election Rules they were entitled to 21 days. The High Court also came to the conclusion that this drastic abridgment of the period for filing claims and objections had materially affected the results of the elections, by depriving several voters of their right to be enrolled as such. The High Court also found that whereas a candidate was entitled to 15 clear days for the purpose of canvassing, the notification issued under the Orissa Municipal Election Rules curtailed this period to 384 14 days. According to the High Court, the respondents to the petition had failed to show that the results of the elections had not and could not have been affected by the contravention of the said Rules. On these findings, the elections in question were set aside and appropriate orders of injunction issued as claimed by the petitioner. This judgment was pronounced on December 11, 1958. It appears that the State of Orissa took the view that the effect of the said judgment could not be confined only to Cuttack Municipality. As a result of the findings made by the High Court during the course of the said judgment the validity of elections to other Municipalities ' might also be exposed to the risk of challenge and that would have necessitated the preparation of fresh electoral rolls after following the procedure prescribed in that behalf by the Act. That is why the Governor of Orissa promulgated the impugned Ordinance on January 15, 1959. Broadly stated, the effect of the Ordinance was that the elections to the Cuttack Municipality stood validated and the said Municipality began to function once again. It also validated the electoral rolls prepared in respect of the other Municipalities in the State of Orissa and thus sought to save elections held or to be held in respect of the said Municipalities from any possible challenge. When Mr. Bose found that his success in the Writ Petition (O.J.C. No. 72 of 1958) had thus been rendered illusory by the Ordinance, he moved the High Court again by the present Writ Petition. He contended that the material provisions of the Ordinance, viz., sections 4 and 5(1) were unconstitutional and he asked for an appropriate relief on that basis. The High Court has again upheld the contentions raised by Mr. Bose and has struck down ss.4 and 5(1) of the Ordinance and issued appropriate orders of injunction restraining the elected Councillors and 385 the Chairman and Vice Chairman from functioning as such. The State of Orissa and the 27 Councillors by separate applications obtained a certificate from the High Court and have come to this Court by their two separate appeals Nos. 525 and 526 of 1960, Before dealing with the validity of the impugned provisions of the Ordinance, it is necessary to consider the broad features of the Ordinance itself. As the preamble to the Ordinance shows, the Governor of Orissa promulgated it because he thought it necessary to provide for the validation of electoral rolls and elections to Municipalities. In his opinion, the preparation of fresh electoral rolls and the holding of fresh elections which would have become necessary unless a validating Ordinance had been passed, would have entailed huge expenditure and would have given rise to problems regarding the administration of such Municipalities during the intervening period. He also thought that it was necessary to take immediate steps to provide for the validation of the electoral rolls and the elections since the Legislature of the State of Orissa was not then in session and the Governor thought circumstances existed which rendered it necessary to take immediate action. In exercise of the powers conferred on him by article 213(1) of the Constitution, he was, therefore, pleased to promulgate the Ordinance. That, according to the statement made in the preamble to the Ordinance explains the genesis of its promulgation. The Ordinance consists of five sections. Section 1 gives its short title and extent, while s.2 is the defining section. Sections, 3, 4 and 5 read thus: "3. (1) Notwithstanding the Order of any Court to the contrary or any provision in the Act or the rules thereunder: (a) the electoral rolls of the Cuttack Municipality shall be, and shall always 386 be deemed to have been validly prepared and published; and (b) the said electoral rolls shall be deemed to have come in force on the date of publication and shall continue to be in force until they are revised in accordance with the rules made in this behalf under the Act. (2) The validity of the electoral rolls shall not be called in question in any court on the ground that the date on which a person has to be not less than 21 years of age was fixed under Section 13 of the act after the publication of the preliminary electoral rolls. Any order of a court declaring the election to the Cuttack Municipality invalid on account of the fact that the electoral rolls were invalid on the ground specified in Sub section (2) of section 3 or on the ground that the date of polling of the election was not fixed in accordance with the Act or the rules made thereunder, shall be deemed to be and always to have been of, no legal effect, whatsoever, and the elections to the said Municipality are hereby validated. (1) All actions taken, and powers exercised by the Councillors, Chairman or Vice Chairman of the Cuttack Municipality prior to the coming into force of this Ordinance shall be deemed to have been validly taken, and exercised. (2) All actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the order of the Government of Orissa in the Health (L. section G.) Department No. 8263 L.S.G. dated the 13th December, 1958, shall be deemed to have been taken 387 and exercised by the Council of the said Municipality or its Chairman or Vice Chairman, as the case may be. " It will thus be seen that section 3 purports to validate the electoral rolls which had been held to be invalid by the High Court in Writ Petition No. 72 of 1958. Sub section (1) of section 3 deals specifically with the infirmities found in the elections held for the Cuttack Municipality whereas sub section (2) deals with the defects in the electoral rolls in respect of all the Municipalities. Section 4 validates, in particular, the elections to the Cuttack Municipality which had been held to be invalid by the High Court. Section 5(1) purports to protect all actions taken and powers exercised by the Councillors, the Chairman and the Vice Chairman prior to the coming into force of the Ordinance, while section 5(2) validates all actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the Order there specified. In other words, the Ordinance is a validating Ordinance. It purports to validate the elections of the Cuttack Municipality in particular and to make valid and regular the electoral rolls which would otherwise have been held to be irregular and invalid in accordance with the judgment of the High Court. Before the High Court, on behalf of Mr. Bose five points were raised. It was argued that the provisions of the Ordinance were a mere colourable device to set aside the judgment of the High Court in O.J.C. No. 72 of 1958. It was, in fact, and in substance, not any exercise of legislative power by the Governor but assumption by him of judicial power which is not warranted by the Constitution. The High Court has rejected this contention and the finding of the High Court on this point has not been challenged before us. So we are relieved of the task of considering the merits of this finding. 388 It was then contended that section 4 of the Ordinance contravenes the equality before law guaranteed by article 14 of the Constitution. It was also urged alternatively that even if section 4 did not contravene article 14, it did not successfully cure the invalidity of the elections to the Cuttack Municipality arising out of the fact that material prejudice had been caused to the citizens by the abridgement of the period for filing claims and objections and of the period for canvassing. In regard to section 5(1) the argument was that it was invalid under article 254(1). All these three contentions have been accepted by the High Court and the correctness of the findings recorded by the High Court in that behalf fall to be considered in the present Appeals. The last contention raised in support of the petition was that on February 23, 1959, a Bill entitled "Orissa Municipal Election Validating Bill, 1959" which contained substantially similar provisions as those of the Ordinance, was sought to be introduced in the Orissa Legislative Assembly but was defeated by a majority of votes and that made the ordinance invalid. This contention has been rejected by the High Court and the finding of the High Court on this point has not been challenged before us. Thus, out of the 5 points raised before the High Court, 3 have been argued before us. For Mr. Bose, Mr. Ranganathan Chetty has also urged two additional points. He has contended that the present appeals have really become infructuous in view of the fact that the impugned Ordinance lapsed on April 1, 1959. This argument has been strenuously pressed before us in the form of a preliminary objection against the competence of the appeals themselves. On the merits, Mr. Chetty has urged an additional ground that the Ordinance was invalid inasmuch as it purported to invalidate the judgment of the High Court in O.J.C. No. 72 of 1958 delivered under article 226 of the Constitution. 389 Let us first consider whether section 4 offends the equality before law guaranteed by article 14. In coming to the conclusion that the said section is unconstitutional on the ground that it contravenes article 14. the High Court was very much impressed by the fact that as a result of its earlier judgment, Mr. Bose had obtained a very valuable right of preventing the existing Councillors from functioning as such and of having fresh elections conducted according to law in which he would have the right to stand as a candidate once again. The petitioner Mr. Bose, may legitimately ask, observed the High Court, why, when hundreds of successful suitors who have sought the help of that Court for relief under article 226 were allowed to enjoy the fruits of their success, he alone should have been discriminated against by hostile legislation. With respect, this rhetorical approach adopted by the High Court, in dealing with the question about the validity of section 4 is open to the obvious criticism that it is inconsistent with the view taken by the High Court itself in this very judgment that the Governor was competent to issue an Ordinance to invalidate the judgment of the High Court pronounced in O.J.C. No. 72 of 1958; as we have already pointed out one of the contentions raised by Mr. Bose against the validity of the Ordinance was that in the guise of the exercise of the legislative powers, the Governor had purported to exercise judicial powers and that was beyond his competence. Since the finding of the High Court on this question has not been challenged before us by Mr. Chetty, we propose to express no opinion on its merits. But if it is held that in promulgating the validating Ordinance the Governor was exercising his powers under article 213(1) and his legislative competence in that behalf is not in doubt, then it is difficult to appreciate how the High Court should have allowed itself to be influenced by the grievance made by Mr. Bose that he had been deprived of the fruits of his success in the earlier Writ Petition. 390 The High Court was, no doubt, influenced by its conclusion that Mr. Bose alone had been singled out for discriminatory treatment of the impugned Ordinance and that, according to the High Court, constituted violation of the provisions of article 14. There are, however, two obvious infirmities in this conclusion. Looking at the scheme of the Ordinance, it is clear that sections 3 and 4 must be read together. The object of the Ordinance was two fold. Its first object was to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court and its other object was to save elections to other Municipalities in the State of Orissa whose validity might have been challenged on grounds similar to those on which the elections to the Cuttack Municipality had been successfully impeached. It is with this two fold object that section 3 makes provisions under its two sub sections (1) and (2). Having made the said two provisions by section 3, section 4 proceeded to validate the elections to the Cuttack Municipality. If we bear in mind this obvious scheme of the Ordinance, it would be unreasonable to read section 4 in isolation and a part from section 3. The High Court was in error in dealing with section 4 by itself unconnected with section 3 when it came to the conclusion that the only subject of section 4 was to single out Mr. Bose and deprive him of the fruits of his success in the earlier Writ Petition. If sections 3 and 4 are read together, it would be clear that Mr. Bose alone had not been singled out or discriminatory treatment; the validating provisions applied, no doubt, to the Cuttack Municipal elections but they are also intended to govern any future and even pending dispute in regard to the elections to other Municipalities. Therefore in our opinion, the High Court was not right in coming to the conclusion that the object of the Ordinance was only to validate the Cuttack Municipal elections and nothing more. 391 Besides, if the power to validate by promulgating an Ordinance is conceded to the Governor under article 213(1), it would not be easy to appreciate why it was not open to the Governor to issue an Ordinance dealing with the Cuttack Municipal Elections themselves. The Cuttack Municipal Elections had been set aside by the High Court and if the Governor thought that in the public interest, having regard to the factors enumerated in the preamble to the Ordinance, it was necessary to validate the said elections, it would not necessarily follow that the Ordinance suffers from the vice of contravening article 14. Article 14 has been the subject matter of decisions in this Court on numerous occasions. It is now well established that what the said Article forbids is class legislation no doubt, but it does not forbid reasonable classification for the purposes of legislation. In order that the test of permissible classification should be satisfied, two conditions have to be fulfilled, viz., (1) the classification must be founded on an intelligible differentia which would distinguish persons or things grounded together from others left out of the group, and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. As this Court has held in the case of SHRI RAM KRISHNA DALMIA V. SHRI JUSTICE section R. TENDOLKAR(1), a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. Therefore, if the infirmity in the electoral rolls on which the decision of the High Court in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State of Orissa, then it may have been open to the Governor to issue an Ordinance only in 392 respect of the Cuttack Municipal Elections, and if, on account of special circumstances or reasons applicable to the Cuttack Municipal Elections, a law was passed in respect of the said elections alone, it could not have been challenged as unconstitutional under article 14. Similarly, if Mr. Bose was the only litigant affected by the decision and as such formed a class by himself, it would have been open to the Legislature to make a law only in respect of his case. But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate the Cuttack Municipal Elections and the electoral rolls in respect of other Municipalities as well. Therefore, we are satisfied that the High Court was in error in coming to the conclusion that section 4 contravenes article 14 of the Constitution. Having regard to the fact that certain infirmities, in the electoral rolls were presumably found to be common to electoral rolls in several Municipalities the Governor thought that the decision of the High Court raised a problem of public importance affecting all Municipal elections in the State and so, acting on the considerations set out in the preamble to the ordinance, he proceeded to promulgate it. In dealing with the challenge against section 4 of the said Ordinance, the High Court should have considered all the provisions of the Ordinance together before coming to the conclusion that section 4 was discriminatory and contravened Art 14. In support of the finding of the High Court, Mr. Chetty referred us to the decision in the State of Vermont vs Albert Shedroi. (1) In that case the Court was dealing with a statute which exempted certain persons from the obligation to obtain a licence for the privilege of selling goods as peddlers. The impugned statute conferred exemption on persons resident in the State, who had served as soldiers in 393 the war for the suppression of the Rebellion in the Southern States, and were honourably discharged. This statute was held to contravene the provisions of the 14th Amendment whereby no state can deny to any person within its jurisdiction the equal protection of the laws. In our opinion, this decision can afford no assistance to Mr. Chetty in supporting the finding of the High Court that section 4 contravenes article 14. The services rendered by the soldiers in the war for the suppression of the Rebellion in the Southern States had hardly any rational connection with the exemption granted to them from obtaining licence for selling goods as peddlers and so, the classification purported to be made by the impugned statute was obviously unreasonable and irrational. That is not so in the present case. Certain irregularities in the electoral rolls were discovered and it was thought that unless the said irregularities were validated, public exchequer would be involved in huge expenditure and problems regarding the administration of Municipalities during the intervening period would arise. That is why the Ordinance was promulgated. The impugned provisions of the Ordinance cannot be said to be based on a classification which is not rational and which has no reasonable connection with the object intended to be achieved by the Ordinance. Therefore, in our opinion the conclusion of the High Court that section 4 contravened article 14 cannot be sustained. As we have already pointed out, the High Court has taken the view that even if section 4 did not offend against Art 14, it nevertheless could not cure the invalidity of the elections to the Cuttack Municipality inasmuch as it had not said anything about the finding of the High Court that the irregularities complained against had caused material prejudice to the citizens of Cuttack by the abridgement of the period for filing claims and objections 394 and of the period for canvassing. When the validating provision, observes the High Court, merely cures the invalidity arising out of the fixation of the qualifying date after the publication of the preliminary electoral rolls and is completely silent about the results of the elections being materially affected thereby, it cannot be said to have annulled the judgment of this Court in O. J. C. No. 72 of 1958. The same reasoning would also apply to the abridgement of the period of canvassing from 15 days to 14 days which also materially affected the results of the elections. The High Court thought that if the Governor wanted to annul the effect of its earlier decision, he should have made express provision to that effect or at least should have referred to that fact in Section 4. It is not easy to appreciate this view. What the Ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them. Once that is done, there is hardly any occasion to say further that no prejudice shall be deemed to have been caused by the said infirmities of the electoral rolls. In validating the elections to the Cuttack Municipality, the Ordinance was not expected or required to cover the reasons given by the judgment or the finding recorded in it. The basis of the judgment was the irregularities in the Electoral rolls and the procedure followed in holding the elections. Those irregularities have been validated and that inevitably must mean that the elections which were held to be invalid would have to be deemed to be valid as a result of the Ordinance and so no question of material prejudice can arise. That being so, we do not think there is any substance in the alternative argument urged in support of the plea that section 4 is ineffective even if it does not contravene Art, 14. That takes us to the question as whether section 5(1) is invalid. The High Court has taken the view that section 5(1) purports to protect not only actions taken and powers exercised under the Municipal 395 Act but all actions and all powers exercised even outside the Municipal Act in violation of other laws. Basing itself on this broad and wide construction of 5(1), the High Court thought that between ss.5(1) and s.477A of the Indian Penal Code there was inconsistency. That is why it struck down section 5(1) under articles 254(2) and 213(1) of the Constitution. We have no hesitation in holding that the construction placed by the High Court on section 5 (1) is obviously unreasonable. The object of section 5 (1) is plain and unambiguous. It seeks to save actions taken and powers exercised by the Councillors, the Chairman or the Vice Chairman in pursuance of, and in accordance with, the provisions of the Municipal Act. Having validated the elections to the Cuttack Municipality, it was obviously necessary to validate actions taken and powers exercised by the appropriate authorities and Councillors as such after the elections were held and before they were invalidated by the judgment of the High Court. Having regard to this plain object which s.5(1) is intended to serve, it is,. we think, wholly unreasonable to put upon its words an unduly wide construction and then strike it down as inconsistent with article 254(2) of the Constitution. It is true that section 5(1) is not in express terms confined to all actions taken and powers exercised under the Municipal Act, but, in the context, that is obviously intended. Indeed, it is doubtful whether it was really necessary to add the words under the Municipal Act having regard to the scheme of the ordinance and the context in which section 5(1) is enacted. Therefore, we do not think that the High Court was justified in holding that section 5(1) was void to the extent of its repugnancy to the existing laws dealing with matters in the Concurrent List. There is no repugnancy to any existing laws and so, there is no contravention of article 254(2) of the Constitution at all. We will now deal with the two additional grounds urged before us by Mr. Chetty. He contends 396 that the Governor was not competent to issue an Ordinance with a view to over ride the judgment delivered by the High Court in its jurisdiction under article 226 of the Constitution. This argument is obviously untenable, for it erroneously assumes that the judgment delivered by the High Court under article 226 has the same status as the provisions in the Constitution itself. In substance, the contention is that just as a provision in the Constitution like the one in article 226 cannot be amended by the Governor by issuing an Ordinance, so a judgment under article 226 cannot be touched by the Governor in his Ordinance making power. It is true that the judgment delivered by the High Court under Art.226 must be respected but that is not to say that the Legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of the High Court under article 226 with Art 226 itself and confer upon it all the attributes of the said constitutional provision. We must now turn to the main argument urged before us by Mr. Chetty that the Ordinance having lapsed on April 1st 1959, the appeals themselves have become infructuous. He contends that the Ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so, as soon as it lapsed, the invalidity in the Cuttack Municipal elections which had been cured by it revived and so there is no point in the appellants challenging the correctness of the High Court 's decision. Indeed, it was this point which Mr. Chetty strenuously stressed before us in the present Appeals. If the true legal position be that after the expiration of the Ordinance the validation of the elections effected by it comes to an end, then Mr. Chetty would be right in contending 397 that the appeals are infructuous. But is it the true legal position ? that is the question which calls for our decision. It is true that the provisions of section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in section Krishnan vs The State of Madras(1) the general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of section 6 of the General Clauses Act. Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by article 213(2) (a). Wicks vs Director of Public Prosecutions (2) is an illustration in point. The Emergency Powers (Defence) Act, 1939, section 11, sub section 3, with which that case was concerned, provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done. The appellant Wicks was convicted in May, 1946, of offences committed in 1943 and 1944, contrary to Regulation 2A of the Defence (General) Regulations 1939, made pursuant to the Act. Both the Act and the Regulation expired on February 24, 1946. It was as a result of this specific saving provision contained in section 11 (3) of the Act that the House of Lords held that, although regulation 2A had expired before the trial of the appellant, he was properly convicted after the expiration of the Act, since section 11 (3) did not expire with the rest of the 398 Act, being designed to preserve the right to prosecute after the date of expiry. Mr. Chetty contends that there is and can be, no corresponding saving provision made by the Ordinance in question and so, the invalidity of the Cuttack Municipal Elections would revive as soon as the Ordinance expired by lapse of time. This contention is based on the general rule thus stated by Craies: "that unless a temporary Act contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. That is why offences committed against temporary Acts must be prosecuted and punished before the act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (1) In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the act expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an inflexible and universal rule ? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. As observed by Parker, B. in the case of Steavenson vs Oliver, (2) "there is a difference between temporary statutes and statutes which are repealed the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the 399 extent of the restrictions imposed, and the duration of the provisions, are matters of construction. " In this connection, it would be useful and interesting to consider the decision in the case of Steavenson itself. That case related to 6th Geo. 4, c. 133, section 4 which provided that every person who held a commission or warrant as surgeon or assistant surgeon in His Majesty 's Navy or Army, should be entitled to practise as an apothecary without having passed the usual examination. The statute itself was temporary and it expired on August 1, 1826. It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after August 1, 1826, because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. The Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute, Lord Abinger, C. B. observed that "it is by no means a consequence of an act of Parliament 's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an act of Parliament; would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration ? The case of a right acquired under the Act is stronger. The 6 Geo. 4 c. 133, provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment. " It is in support of the same conclusion that Parker, B. made the observations which we have already cited. "We must look at this act", 400 observed Parker, B., "and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question. It seems to me that the meaning of the legislature was that all assistant surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privileges, as such was of an executory nature, capable of being carried into effect after the 1st of August, 1826. " Take the case of a penalty imposed by a temporary statute for offences created by it. If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal ? In our opinion, the answer to this question has to be in the negative. Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter. This question sometimes arises in another form. As Craies has observed: "If an act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex hypothesis the temporary Act expires and is not repealed, the rules of construction laid 401 down by ss.11(1) and 38 (2) of the Interpretation Act, 1889, do not apply, But there will be no revivor if it was clearly the intention of the legislature to repeal the earlier Act absolutely." Therefore even as regards the effect of the repealing of an earlier Act made by a temporary Act. the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down. This position has been tersely expressed by Lord Ellenborough, C. J., when he observed in Warren vs Windle (1) "a law though temporary in some of its provisions, may have a permanent operation in other respects. The stat, 26 Geo. 3, c. 108, professes to repeal the statute of 19 Geo. 2, c. 35, absolutely, though its own provisions, which it substituted in place of it, were to be only temporary. " In other words, this decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act. We have referred to this aspect of the matter only by way of analogy to show that no inflexible rule can be laid down about the effect of the expiration of a temporary Act. Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid. Can it be said that the validation was intended to be temporary in character and was to last only during the life time of the Ordinance ? In our opinion, having regard to the object of the ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this 402 Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr. Chetty against the competence of the appeals can be upheld. The result is that the appeals are allowed, the order passed by the High Court is set aside, and the Writ Petition filed by Mr. Bose is dismissed with costs throughout. Appeals allowed.

The provision as to notice in writing of the lessor 's intention to determine the lease, container in section 111(g) of the , as amended in 1929, is not based on any principle of justice, equity or good conscience and is not applicable to leases executed prior to 1st April, 1930. Where a lease deed executed before the , came into force, provided that the lessee 's rights should come to an end on default of payment of rent, and, as rent was not duly paid, the lessor instituted a suit for ejectment of the lessee without giving him a notice in writing of his (the lessor 's) intention to determine the lease : Held, that the suit was maintainable. Umar Pulavar vs Dawood Rowther (A.1,R. , Brahmayya vs Sundodaramma (A.I.R. , Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay disapproved. Toleman vs Portbury (L.R. 6 Q.B. 245), Prakash Chandra Das vs Rajendra Nath Basu (I.L.R. , Rama Aiyangar vs Guruswami Chetty , Venkatachari vs Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti vs Gilbert Pinto (I.L.R. relied on. Venkatarama Aiyar vs Ponnuswamy Padayachi (A.I.R. 1935 Mad. 918), Aditya Prasad vs Ram Ratanlal (57 I A. 173), Muhammad Raza vs Abbas Bandi Bibi (59 I.A. 236), Roberts vs Davey ; distinguished.

Criminal Appeal No. 48 of 1983. From the Judgment and Order dated 14.5.1981 of the Orissa High Court in Crl. R. No. 22 of 1981. V.J. Francis for the Appellant. F.S. Nariman, Anil B. Divan, L.R. Singh, R.K. Mehta, G.S. Chatterjee and Vinoo Bhagat for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. I agree that this appeal has to be dismissed. I am of the view that the decision in The State of Bihar vs Ram Naresh Pandey, interpret ing section 494 of the Code of Criminal Procedure, 1898 and the decision in R.K. Jain etc. vs State through Special Police Establishment and Others, interpret ing section 321 of the Code of Criminal Procedure, 1973 do not call for any reconsideration. I am in full agreement with the views expressed in these decisions. I am satisfied that the Public Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magis trate has not committed any error in giving his consent to such withdrawal. The appeal is, therefore, dismissed. KHALID, J. I have just received (at 7.40 p.m. on 19th December, 1986) a draft Judgment by Oza, J. in the above case. I agree with the conclusion that the appeal has to be dismissed, but not, with respect, with the reasoning con tained in the Judgment. Since the case is listed for Judg ment on 20th December, 1986, I do not have time to write a detailed Judgment. The question to be decided in this appeal is the scope of Section 32 1 of Criminal Procedure Code, and I do not agree with the following observation of Oza, J. since there is no question of setting aside of the order passed by the learned Additional Special Judge, Bhubaneswar; " . But in the present case, there is no point in setting aside the withdrawal and sending the case back to the learned Special Judge because after considering the entire material on record in detail we are of the view that there is 684 no material at all on the basis of which it could be said that there is a prima facie case against respondent No. 1 and the charges against respondent No. 1 appear to be ground less and respondent No. 1 would, therefore, in any event be entitled to be discharged under Section 239 . " A cursory glance at Section 32 1 will satisfy anyone that consent can given for withdrawal from the prosecution of a case, not only when the charge is not framed, but even after the charge is framed and at any time before the Judgment. This appeal along with Criminal Appeal Nx. 49 of 1983 were directed to be posted before a Constitution Bench to consider the scope of Section 32 1, Criminal Procedure Code. That being so, I do not think it proper to abandon that pursuit and take refuge under Section 239 of Criminal Proce dure Code. In a separate Judgment to be pronounced by me in Crimi nal Appeal No.241 of 1983, I have outlined the scope of Section 321 of Criminal Procedure Code. What is to be decid ed in this case is whether the order passed by the Magis trate under Section 321, Criminal Procedure Code, is proper or not. We are not called upon to consider the propriety of the charge framed and then examine the evidence and see whether the accused should be discharged or the charge framed should be upheld. I adopt the reasons given by me in Criminal Appeal No. 241 of 1983, relying upon the decisions reported in of Bihar vs Ram Naresh Pandey) and in ; Jain vs State) and uphold the order of withdrawal passed by the Additional Special Judge, Bhubanes war, and upheld by the High Court in revision, and dismiss the appeal. OZA, J. The present appeal by special leave is directed against the judgment and order of the High Court of Orissa dated 14th May 1981 in Criminal Revision No. 22 of 1981 arising out of an order dated 20th December, 1980 of the Additional Special Judge, Bhubaneswar allowing an applica tion filed by the Special Public Prosecutor praying for withdrawal from prosecution in Case No. 13 of 1979 against respondent No. 1. By the impugned judgment the Hon 'ble High Court dismissed the revision petition filed by the appellant and confirmed the order passed by the learned Additional Special Judge permitting withdrawal of the case by the Special Public Prosecutor. The Vigilance 685 Department of the State submitted a charge sheet against respondent No. 1 on the allegation that she had no assets prior to her election as a member of the Rajya Sabha in the year 1962. Subsequently she was re elected and became a Union Deputy Minister from January 1966 to June 1970 and a Union State Minister from June 1970 to June 1972. She became the Chief Minister of Orissa from 15.6.72 to 28.2.73 and again from 6.3.74 to 26.12.76. Even before becoming the Chief Minister of Orissa she had no assets save and except a thatched roof house at Pithapur, Cuttack and a bank balance of Rs. 18,000. It was alleged that during her incumbency as Chief Minister, the bank balance increased as well as her other assets swelled up and it was alleged that in 1977 her net assets were to the tune of Rs.7,54,735,85 p. which were disproportionate to her known sources of income. In 1977 the respondent No. 1 left the Congress Party and joined the Congress for Democracy. In the parliamentary elections in 1977, the Congress was defeated and Janata Party came to power and also in the Assembly elections which followed, the Congress lost and the Janata Party came to power in the State. It appears that although the Congress for Democracy which respondent No. 1 had joined, merged with the Janata Party, still many leaders of the Janata Party had a grudge against her as during her regime as Chief Minister when emergency was clamped, a number of leaders who were prominent in the Janata Party were put behind bars and ultimately for having assets disproportionate to her known sources of income, a prosecution was launched against her under Section 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act. One of the allegations on the basis of which the charge sheet was filed was that on 15.7.74, respondent No. 1 passed an order in favour of M/s Ferro Alloys Corporation. This order was, passed by her in her official capacity and it is alleged that because of this order M/s Ferro Alloys made a huge profit of about Rs.4 crores and on 3.10.75 and 7.10.75 cheques in the aggregate sum of Rs.48,000 were given by M/s Ferro Alloys Corporation to Dharitri a newspaper for an advertisement which was ' published in the 'newspaper. It was therefore alleged that respondent No. 1 obtained Rs.48,000 from M/s Ferro Alloys Corporation. The second allegation against respondent No. 1 was that on 14.6.76 the Prime Minister requested respondent No. 1 to indicate the approximate value of her recently completed house at Bhubaneswar and no reply to this query is found on the record of the Prime Minister. 686 The construction of the house started in September 1974 and ended on 29th February, 1976. The investment in the con struction of the house is said to be Rs.3,32,000 and odd whereas according to respondent No. 1 she had spent an amount of Rs.2,68,000 and the difference of Rs.64,000 ac cording to the allegation of the prosecution was the amount acquired by respondent No. 1 by illegal and corrupt means as Chief Minister. It was alleged that the whole sum of Rs.3,27,614 is surreptitious and not disclosed in income tax return for the financial years 1974 75 and 1975 76. It is also alleged that Navjat Printers which is owned by Samajba di Society received a sum of Rs.3,94,540 between 6.3.74 and 29.2.76 in respect of orders placed by U.P.C.C. The allega tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid only Rs.60,964 and as regards the balance of Rs.3,33,576 it must have been acquired by respondent No. 1 herself and paid to Navjat Printers. It was alleged that Shri Natchiketa Satpathy, son of respondent No. 1 purchased a flat at Kailash Apartments, New Delhi and for this purpose respondent No. 1 paid Rs.50,000 to her son in three instalments. Similarly it was alleged that on 15.3.75 respondent No. 1 paid Rs. 15,000 to her other son Tathagat Satpahty and managed to get invested a sum of Rs.33,000 in different names fictitiously in M/s Rosambi Private Limited. An amount of Rs. 15,000 is said to have been a payment by cheque. It was alleged that in the house of her husband, cash was contained in two bags which was to the tune of Rs.5 1,766. One of the bags there had a visiting card of the First Secretary of the USSR Embassy. This cash was discov ered after respondent No. 1 ceased to be Chief Minister. The search was made on 8th July 1977 when respondent No. 1 had already ceased to be Chief Minister nearly nine months before that date. It was alleged that the cash must be deemed to have been of the ownership of respondent No. 1 and that it must have been acquired by her during the period when she was the Chief Minister. It appears that when charge sheet was filed against respondent No. 1, the Income Tax Department also issued notice for re opening of her assessments and examined the whole matter afresh and during the period that this case has been pending here, final orders have been passed by the Income Tax Department which explain in detail all the items of assets which according to the prosecution were dispropor tionate to the legitimate means of respondent No. 1. This matter came up before us along with another case from Bihar where we heard arguments at length on the question of with drawal from the prosecution 687 and its legal implications, but so far as the present case is concerned, in view of the facts as they emerge, we do not find it necessary to go into all these questions. The alle gations can be broadly classified into three heads: The first head relates to payments made to Dharitri and Navjat Printers or Samajbadi Society. These are clearly distinct institutions which could not be said to belong to respondent No. 1. It is not disputed that Dharitri is a newspaper which receives advertisements and payment for advertisement made to Dharitri could not possibly be co related to respondent No. 1 or regarded as receipt of re spondent No.1. There is nothing at all to show that the payment received by Dharitri for advertisement (which in fact was published in Dharitri) had anything to do with respondent No. 1. The second head of allegations relates to valuation of assets and the construction of the house and the third category to the monies received by the U.P.C.C. which are alleged to have been paid by respondent No. 1. Lastly there are similar items of monies paid to the sons and found in the possession of her husband. So far as these allegations are concerned, it may be pointed out that it was on the basis of these allegations that the Income Tax Department re opened the assessments after giving notice and conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allega tions that she had suppressed any income from undisclosed sources. It is also significant that the application for with drawal was made by the Special Public Prosecutor in 1980 when respondent No. 1 had nothing to do with the party in power, as after the elections held in 1980, Congress I came back to power in Orissa and J.B. Patnaik became the Chief Minister. Respondent No. 1 contested the Assembly election as a candidate of Congress (Urs) Party and was elected, defeating her Congress I opponent Shri Profulla Bhanja and she was a member of Congress (Urs) (Opposition) during that period. This is to our mind a strong circumstance which indicates that the application for withdrawal was made in furtherance of public justice and distinguished the case of respondent No. 1 from that of Dr. Jagannath Misra in the Bihar case which is being disposed of by another judgment today. The Income Tax Officer examined in detail each one of the items of assets said to have been unaccounted and sup pressed and the order passed by the Income Tax Officer which has been placed on record 688 clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate the respondent No. 1 was possessed of assets disproportionate to his means. The application moved by the Special Public Prosecutor for withdrawal from the prosecution was therefore clearly bonafide and in further ance of public justice and it was clearly a false and vexa tious criminal prosecution which had been launched against respondent No. 1 which was sought to be halted. The learned Special Judge also on these facts took the view that no useful purpose would be served by continuance of the prose cution and he accordingly permitted the withdrawal. The High Court too maintained the order of the learned Special Judge. We agree that in the light of the facts on record and the order passed by the Income Tax Officer which explains all the items of assets alleged to be unaccounted and sup pressed, the charges against respondent No. 1 appear to be groundless. It is true that ordinarily when the exercise of considering the material on record for the purpose of deter mining whether there is sufficient material to sustain the prosecution can be performed by the Court under Section 239 of the Code of Criminal Procedure 1973 the Court should not allow the prosecution to be withdrawn under Section 321 as held by us in the Judgment in Dr. Jagannath Misra 's case, which has been delivered today. But in the present case there is no point in setting aside the withdrawal and send ing the case back to the learned Special Judge because after considering the entire material on record in detail we are of the view that there is no material at all on the basis of which it could be said that there is a prima facie case against respondent No. 1 and the charges against respondent No. 1 appear to be groundless and respondent No. 1 would therefore in any event be entitled to be discharged under Section 239. We do not therefore think it necessary or expedient to interfere with the order made by the learned Special Judge and confirmed by the High Court. The appeal will therefore stand dismissed. NATARAJAN, J. In the withdrawal petition filed on 15.11.80 and the supplementary withdrawal petition filed on 16.12.80 the Special Public Prosecutor (Vig.) C.D., Cuttack has set out the factors which have prevailed with him to seek the consent on the Court to withdraw the prosecution launched in V.C.R. Case No. 33 of 1977 against the accused therein, viz. Smt. Nandini Satpathy & Anr. The Additional Chief Judicial Magistrate has passed a detailed and considered order on 20.12.80 wherein he has fully discussed the 689 matter and thereafter given consent to the withdrawal of the prosecution. The conclusion of the learned Magistrate is contained in para 12 which reads as follows: "Taking the facts and circumstances of the case into consideration. I am of the view that the ends of public justice be met if the consent be given for withdrawal of the case. " The order of the learned Magistrate has been critically assessed by a learned Judge of the Orissa High Court in Crl. Rev. No. 21 and 22 of 1981 filed before the High Court. The learned Judge upheld the order of the Magistrate 'and has summed up the High Court 's view as under: "The observations of the Supreme Court (in R.K. Jain vs State AIR 1980 Supreme Court 1510 1980 Volume 3 SCR 982) would not justify entertaining this application when a Public Prosecutor in his application had indicated that the evidence already collected did not support the prosecution there was no prospect of a conviction and the appropriate authority in the broad ends of justice need not contin ue. " Section 321 makes it clear that an application for withdrawal of a case can be made by a Public Prosecutor or Assistant Public Prosecutor who is incharge of the case concerned, at any time before the judgment is pronounced. In other words, it means that the application for withdrawal of prosecution may be made at any time ranging between the court taking congnizance of the case till such time the court actually pronounced judgment. Consequently, it follows that even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution. The Section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily be made at the earliest stages of the case or only if the evidence is of a weak and infirm nature. In his application a Special Public Prosecutor had set out the reasons which justified his filing an application under Section 32 1 of the Code to seek the consent of the Court for the withdrawal of the prosecution. The learned Magistrate has considered the matter judicially in the light of the decision of this Court in R.K. Jain vs State, ; which has followed the earlier decision in State of 690 Bihar vs Ram Naresh Pandey, The order of the learned Magistrate has been approved and affirmed by the High Court. There are no materials in the appeal to persuade me to hold that the order passed by the Additional Chief Judicial Magistrate or the High Court suffers from any error of law, patent or latent. In that view the appeal has to be dis missed. A.P.J. Appeal dismissed.

Prosecution was launched against Respondent No. 1 under s.5(1)(d) read with s.5(2) of the Prevention of Corruption Act, 1947 for having assets disproportionate to her known sources of income. The Special Public Prosecutor filed application for withdrawal of the prosecution against Respondent No. 1. The Additional Special Judge allowed the application. The High Court dismissed the revision petition and confirmed the order permitting withdrawal of the case. Dismissing the Appeal to this Court, HELD: Per Venkataramiah, J. The Public Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magis trate has not committed any error in giving his consent to such withdrawal. [683D E] The State of Bihar vs Ram Naresh Pandey, [1957] S.C.R. 279 and R.K. Jain etc. vs State through Special Police Establishment and others; , , Relied upon. Per Khalid, J. 1. What is to be decided in this case is whether the order passed by the Magistrate under s.32I, Criminal Proce dure Code, is proper or not. The Court is not called upon to consider the propriety of the charge framed and then examine the evidence and see whether the accused should be dis charged or the charge framed should be upheld. [684D E] 2. Consent can be given for withdrawal from the prosecution of a 681 case, not only when the charge is not framed, but even after the charge is framed and at any time before the judgment. [684B C] The State of Bihar vs Ram Naresh Pandey, [3957] SCR 279 and R.K. Jain etc. vs State through Special Police Establishment and others; , , Relied upon. Per Oza, J. I. Ordinarily when the exercise of considering the material on record for the purpose of determining whether there is sufficient material to sustain the prosecution can be performed by the Court under s.239 of the Code of Crimi nal Procedure 1973, the Court should not allow the prosecu tion to be withdrawn under s.321. [688C E] 2. In the present case, there is no point in setting aside the withdrawal and sending the case hack to the Spe cial Judge because there is no material at all to show that there is a prima facie case and the charges appear to be groundless. Respondent No. 1 would, therefore, be entitled to be discharged under s.239. It is, therefore, not neces sary or expedient to interfere with the order made by the Special Judge and confirmed by the High Court. [688E F] 3. When the charge sheet was filed, the Income Tax Department re opened the assessment, examined the whole matter afresh and passed final orders during the pendency of the case in this Court explaining all the items of assets said to have been unaccounted and suppressed as also entries pertaining to the house construction and other assets, which show that there is nothing to indicate that Respondent No. 1 was possessed of assets disproportionate to her means. [688A B] 4. The application moved by the Special Public Prosecutor for withdrawal from the prosecution was, therefore, clearly bona fide and ' in furtherance of public justice and it was clearly a false and vexatious criminal prosecution launched against respondent No. 1. The Special Judge also on these facts took the view that no useful purpose would be served by continuance of the prosecution and accordingly permitted the withdrawal which was upheld by the High Court in revi sion. [688B] 5. The first allegation relates to payments made to Dharitri and Navjat Printers. Dharitri is a newspaper which receives advertisements. There is nothing to show that the payment received by Dharitri for advertisement had anything to do with respondent No.1. [687.B C] 682 6. The second allegation relates to valuation of assets and the construction of the house and the third relates to the monies received by the U.P.C.C. which are alleged to have been paid by respondent No. 1. Lastly there are similar items of monies paid to the sons and found in the possession of her husband. It was on the basis of these allegations that the Income Tax Department re opened the assessments, conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allegations that she had suppressed any income from undis closed sources. [687C E] 7. The application for withdrawal was made by the Spe cial Public Prosecutor in 1980 when respondent No.1 had nothing to do with the party in power as she was in opposi tion party after the elections held in 1980. This is a strong circumstance which indicates that the application for withdrawal was made in furtherance of public justice. [687E G] 8. In the fight of the facts an record and the order passed by the Income Tax Officer explaining all the items of assets alleged to be unaccounted and suppressed, the charges against respondent No. 1 appear to he groundless. [688C] Per Natarajan, J. 1. Section 321 makes it clear that an application for withdrawal of a case can he made by a Public Prosecutor or Assistant Public Prosecutor who is incharge of the case concerned, at any time before the judgment is pronounced. The application for withdrawal of prosecution may he made at any time ranging between the Court taking cognizance of the case till such time the Court actually pronounces judgment. Even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution. The section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily he made at the earliest stages of the case or only if the evidence is of a weak and infirm nature. [689E G] 2. The Special Public Prosecutor had set out the reasons which justified filing of an application under s.321 of the Code for the withdrawal of the prosecution, and the Magis trate has considered the matter judicially, before giving his consent. [689G H] The State of Bihar vs Ram Naresh Pandey [1157] SCR 279 and R.K. Jain etc. vs State through Special Police Estab lishment and others; , , relied upon.

ivil Appeal No. 671 of 1985. From the Judgment and Order dated 24th August, 1984 of the Calcutta High Court in Appeal from Appellate Decree No. 263 of 1979. N.S. Nesargi and Dr. Meera Agarwal for the Appellant. Rajan Mahapatra and Rathin Das for the Respondents. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. The matter arises under the West Bengal Premises Tenancy Act, 1956 ( 'Act ' for short). The appellant is the tenant occupying the premises belonging to the respondent 612 on a monthly rent of Rs.475. The respondent landlady filed a Suit No. T.S. 84/73 on the ground of default of rent for the period from May to August, 1973. The appellant deposited the rent and made an application under Section 17(2) of the Act. The trial court vide its order dated 27.2.74 held that the rent payable is only Rs.450 per month and directed the appellant to deposit the balance of arrears of rent within 15 days. At this stage a compromise memo was filed and the suit was compromised in terms of the compromise memo. In the memo it was mentioned that the default was of the first instance and that there would be no decree for khas posses sion. It appears the appellant again committed default in payment of rent from June to December, 1975 (both months inclusive). The respondent landlady filed Title Suit No. 3/76 after giving notice for eviction. In that suit the appellant filed a petition under Section 17(2) and Section 17(2A) of the Act. By Order No. 26 dated 23.3.77 the trial court decided that the rent payable was Rs.475 per month and the appellant was asked to deposit the arrears at the rate of Rs.3 15 per month by the 15th of each month commencing from April, 1977. The appellant contested the suit and filed a written statement claiming benefit under Section 17(4) of the Act pleading that it was the first default. The respond ent landlady contested the same stating that no such relief can be granted as per the proviso to the Section since such a relief was already granted once and that at any rate the appellant did not comply with the order while making the deposit of the arrears by 15th of each month and on that ground also no relief can be granted under Section 17(4). The trial court decreed the suit and the first appellate court as well as the High Court dismissed the appeals pre ferred by the appellant. In this appeal firstly it is contended that though there was delay in paying the installments as per Order dated 23.3.77 passed under Sections 17(2) and 17(2A) the Court did not order striking off the defence as provided under Section 17(3) and therefore the delay must be deemed to have been condoned and consequently it must be held that the appellant made the deposits as required by sub sections (2) and (2A) of Section 17 and hence he is entitled to claim relief under Section 17 (4). The second contention is that the default which is the subject matter of Title Suit No. 3/76 should be treated as the first default inasmuch as the relief granted in Title Suit No. 84/73 in respect of the default for the period from May to August, 1973 was not one under Section 17(4) since the suit was decreed by way of compromise. When this matter came up before another Bench of this Court consisting of two Hon 'ble Judges, in support of the second contention, 613 reliance was placed on Jagan Nath vs Ram Kishan Das & Anr., ; , (a decision of three Judges) where a similar provision in the Delhi Rent Control Act, 1958 was considered in a case where the earlier suit was withdrawn. The Bench felt that the provision was construed in a narrow and technical sense and referred this matter to a Bench of three Judges and that is how this matter has come up before us. All the three courts below have held that the appellant did not make the deposits before 15th day of each month as per the order dated 23.3.77 passed under Section 17(2) and Section 17(2A). Unless such a deposit is duly made no relief can be granted under Section 17(4) of the Act. At this stage it becomes relevant to refer to the provisions of Section 17. Section 17 reads as under: "section 17. When a tenant can get the benefit of protection against eviction (1) On a suit or proceeding being insti tuted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of sub section (2) within one month of the service of the writ of summons on him or where he appears in the suit or pro ceeding without the writ of summons being served on him, within one month of his appearance deposit in court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. (2) If in any suit or proceeding referred to in subsection (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in sub section ( 1), deposit in court the amount admitted by him to be due from him together with an applica tion to the Court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable, On receipt of such application, the Court shall 614 (a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not ex ceeding one year, a preliminary order, pending final deci sion of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the prelimi nary order; and (b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in Court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order. (2A) Notwithstanding anything contained in subsec tion (1) or sub section (2), on the application of the tenant, the Court may, by order, (a) extend the time specified in sub section (I) or sub section (2) for the deposit or payment of any amount re ferred to therein; (b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive or interest required to be deposited or paid under subsection (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such installments and by such dates as the Court may fix; Provided that where payment is permitted by in stallments such sum shall include all amounts, calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this sub section is to be made with interest on any such amount calculated at the rate 615 specified in sub section (1) from the date when such amount was payable upto the date of such order. (2B) No application for extension of time for the deposit or payment of any amount under clause (a) of subsec tion (2A) shall be entertained unless it is made before the expiry of the time specified therefore in sub section (1) or sub section (2), and no application for permission to pay in installment under clause (b) or sub section (2A) shall be entertained unless it ' is made before the expiry of the time specified in sub section (1) for the deposit or payment of the amount due on account of default in the payment of rent. (3) If a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any installment permitted under clause (b) of sub section (2A) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. (4) If a tenant makes deposit or payment as re quired of sub section (1), sub section (2) or sub section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the land lord: Provided that a tenant shall not be entitled to any relief under this sub section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months. " The learned counsel for the appellant submits that assuming that there was delay in making the deposit of installments of the rent as per the said order, the follow up action by the Court as contemplated under Section 17(3) namely strik ing off the defence has not been ordered and therefore it should be presumed that the delay was condoned or deemed to have been condoned. We are unable to agree with this submis sion of the learned counsel for the appellant. As already 616 mentioned, the appellant filed petition under Sections 17(2) and 17(2A) pending the present suit disputing the amount of rent and also seeking permission to deposit the rent by way of installments. The rent was held to be Rs.475 per month and the same was directed by the Court to be paid by monthly installments before 15th of each month but the appellant did not make the deposits duly. Admittedly no application was made for extension of time. Section 17(2) provides that if in any suit there is dispute as to the amount of rent pay able the tenant within the time specified shall deposit in court the amount admitted by him to be due from him with an application for determination of rent. Section 17(2A) pro vides for extension of the specified time and also to depos it the rent by way of installment under the orders of the Court. Section 17(2B) lays down that no application for extension of time shall be entertained unless it is made before the expiry of the specified time under sub section(1) or sub section (2) and it further lays down that no applica tion for permission to pay in installments under clause (b) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified. Section 17(3), on which reliance is placed by the appellant lays down that if a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) ' within the time speci fied therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any installment permitted under clause (b) of sub sec tion (2A), the Court shall order the defence against deliv ery of possession to be struck out shall proceed with the hearing of the suit. We have already noted that no applica tion for extension of time was made. The mere fact that the court has not passed an order striking off the defence as contemplated under Section 17(3) because of the tenant 's failure to deposit within the time specified in the order passed under Sections 17(2) and 17(2A) does not necessarily lead to a presumption that the time was extended. On the other hand Section (2B) which is a mandatory provision laid down that no application for extension of time for the deposit or payment of any amount under clause (a) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified in sub section (1). There fore in the absence of such application it be contended that the Court is deemed to have condoned the delay. That being the position it must be held that the appellant tenant to make the deposit of the rent as per Order No. 26 dated 25, 3.77 passed under Section 17(2) and 17(2A). Since such a deposit is the condition precedent for seeking relief under Section 17(4) the appellant who has not fulfilled the same cannot claim the said relief. On this ground alone the orders of the courts below have to be confirmed. In this view of the matter we do not propose to go into the 617 second contention in this appeal. It may be decided in any other appropriate case where the question directly arises. The premises in question is in Calcutta City where accommo dation problem is very acute. Therefore the appellant is given time till 31st March, 1991 to vacate the premises on filing the usual undertaking within three weeks from today. The appeal is accordingly dismissed. In the circumstances of the case there will be no order as to costs. T.N.A. Appeal dis missed.

The respondent landlady filed a suit for eviction of the appellanttenant on the ground of default in payment of rent. The appellant deposited the rent and made an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956. The Trial Court determined the rent payable and di rected deposit of the arrears of rent. The suit was subse quently compromised. The appellant again committed a default in payment of rent and the respondent filed another suit for eviction. The appellant filed petition under section 17(2) and (2A), disputing the amount of rent and also seeking permission to deposit rent by installments. The Trial Court decided the rent payable and directed the appellant to deposit the arrears of rent in monthly installments by the 15th of each month. Thereupon the appellant tenant claimed protection under section 17(4) which was resisted by the landlady on the ground that (i) the protection cannot be granted as per the proviso to section 17(4), since he has already been granted relief once in the earlier suit, and (ii) Appel lant 's non compliance with the Court 's order in depositing the rent disentitled him from claiming relief under section 17(4). The Trial Court decreed the respondent 's suit and the first appellate Court as well as the High Court confirmed the same by dismissing the appeals preferred by the appel lant. 611 In the appeal to this Court it was contended on behalf of the appellant that since the follow up action of the Court under section 17(3) viz. striking off the defence has not been ordered, it should be presumed that the delay in depositing the rent was condoned thereby entitling the appellant to relief under section 17(4). Dismissing the appeal, this Court, HELD: The mere fact that the Court has not passed an order striking off the defence as contemplated under Section 17(3) because of the tenant 's failure to deposit within the time specified in the order passed under Section 17(2) and 17(2A), does not necessarily lead to a presumption that the time was extended. On the other hand Section 17(2B) which is a mandatory provision lays down that no application for extension of time for the deposit or payment of any amount under clause (a) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified in sub section (1). [615H; 616C] In the instant case no application for extension of time was made by the appellant. Therefore, in the absence of such application it cannot be contended that the Court is deemed to have condoned the delay. [616G] Since deposit of rent as per Court 's order under Section 17(2) and (2A) is the condition precedent for seeking relief under section 17(4) the appellant who has not fulfilled the same cannot claim the said relief. The orders of the Court below are therefore confirmed. [616H]

minal Appeal No. 226 of 1960. Appeal by special leave from the judgment and order dated July 28, 1960 of the Madhya Pradesh High Court in Criminal Appeal No. 385 of 1959. A. R. Choubay and Naunit Lal, for the appellant. I. N. Shroff, for the respondent. April 23. The judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal, by special leave, is directed against the order of the High Court of Madhya Pradesh reversing, on State appeal, the order of the Additional Sessions judge, Hoshangabad, acquiring the appellant, and convicting him of an offence under section 414 I. P.C. Five bales, containing woollen shawls and mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another bale despatched from 291 Haimanpur to Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa No. C.R. 325. The lock of the wagon wag found broken open at Pandhurna Railway Station at about 1.00 a.m. on September 20, 1957. on checking at Nagpur the aforesaid bales were found missing. One of the bales despatched from Kanpur was found lying the next morning near the railway line between railway stations Jaulkheda and Multai. On September 23, 1957, the house of one Gopi Nath, at Multai, was searched and certain articles, including some torn labels were recovered from that house. The same day, the police found the appellant and a few other persons come out of Gopi Nath 's house at Betul, whose front door was locked. Subsequently, these persons were taken to the police station, where the appellant made a statement showing readiness to point out the stolen property. At his instance, the police recovered from different places of that house, woollen shawls, mufflers, bed sheets and certain house breaking implements. These recoveries were made on September 23 and 24. As a result of investigation, six persons were put on trial in the Magistrate 's Court. Ajendra Nath, appellant, was charged under sections 120 B, 379 and 414, I.P.C. Babu Ram was charged under sections 120 B and 379 I.P.C. Ram Prasad and Gyarsi were charged under section 120 B read with section 879 I.P.C., Gopinath under section 120 B read with section 414 I.P.C. and Birendranath under section 414 I.P.C. The learned Magistrate acquitted Birendra Nath and convicted the other accused of the offence under section 120 B read with section 379 I.P.C., except in the case of Gopinath, who was convicted of the offence under section 120 B read with section 414 I.P.C. Ajendra Nath was also convicted of the offence tinder section 414 I.P.C. 292 On appeal, the learned Additional Sessions judge, Hoshangabad, acquitted all these convicted persons. He held that the property recovered was not proved to be stolen property and that the alleged conspiracy was not proved. The State filed an appeal against the acquittal of Gopinath and Ajendra Nath. The High Court dismissed the appeal against Gopinath and the appeal against Ajendra Nath for the offence of conspiracy. It however allowed the appeal against Ajendra Nath with respect to the offence under section 414 I.P.C. It is against this order that this appeal has been filed by Ajendra Nath, appellant. Ajendra Nath did not question the recovery of the various articles from Gopi Nath 's house at Betul at his instance. He did not claim the property to be his own, but stated that it was not stolen property. The main contention for the appellant in this Court has been that these recovered article; were not proved to be stolen property. Tile articles consisted of those said to have been sent by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and bed sheets sent by the firm of V.S.N.C. Narsingha Chettiar, which carries on business of wholesale Hand Loom Cloth at Karur. The invoices relating to the four bales sent by ' the Kanpur Woollen Mills give the details of the shawls and mufflers the bales contained. A very large quantity of these has been recovered. Out of 95 shawls and 63 mufflers, as many as 80 shawls and, 43 mufflers had been recovered. Similarly, out of 10 pairs of bed sheets stolen, 8 pairs have been recovered. The absence of any adequate explan ation for the presence of such a large quantity of articles similar to those proved to have been despatched by the Kanpur Woollen Mills or by the Karur company, the recovery of these articles within 293 a few days of the theft, the presence of silk and paper labels of Kanpur Woollen Mills on most of the shawls and mufflers recovered and of certain manuscript writings on the labels of the bed sheets by P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the Karur business, have been taken into consideration by the High Court for coming to the finding that the property recovered was proved to be stolen property. These circumstances cannot be said to be such which would not justify the finding arrived at. The main contention for the appellant however is that it has not been definitely established from the evidence of Kunzru, P. W. 10, that the shawls, mufflers recovered were manufactured by the Kanpur Woollen Mills and were despatched in the bales which were subsequently stolen. Kunzru 's evidence does fall short of establishing that the shawls and mufflers recovered were manufactured by the Kanpur Woollen Mills. He has not identified the recovered shawls and mufflers as those manufactured by these mills. In fact, he was not even shown all the shawls and mufflers recovered. He was shown by the Police Inspector, Government Railway Police, two lois (two shawls) and two mufflers. He got them examined by the textile expert and, on the report of the expert, gave the certificate that they appeared to be manufactured by the Woollen Mills of Kanpur. That expert has not been examined in Court and therefore Kunzru 's statement alone fails to establish that these shawls and mufflers were manufactured by these mills. However, it is not open to doubt that they were manufactured by these mills when most of them had sewn silk labels of these mills and quite a good number of them had even paper labels indicating that they were manufactured by these mills. There, is no reason to suppose and in fact no such suggestion has been made that these labels had been put on these articles by some one for the purpose of 294 deception. We therefore consider that the finding that these shawls and mufflers were the manufacture of Kanpur Woollen Mills is correct. It was also contended for the appellant that it was not proved that these shawls and mufflers were in the bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were not proved as persons who wrote them had not been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen Mills. His cross examination in no way indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross examination. There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this connection reference was made to the fact that five of the shawls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices. There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are not claimed by the appellant as his own. So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property. With respect to the identity of the bed sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he had supplied 10 pairs of bed sheets to a certain customer who disowned the bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had 295 despatched to Ahimanpur. He further deposed that before despatching the goods they paste the firm labels on them. He stated that his younger brother Krishna Murti had noted size number and pattern over these sheets in his handwriting, as he happened to be at home on vacation. Krishna Murti, P.W.24, admits that certain labels on the bed sheets were in his hand writing, that he wrote them under instructions of his brother and that he had not written sirnilar numbers on any other bed sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well. The learned Additional Sessions judge did not rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation. The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation. No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of comparison. We therefore see no good reason for considering the finding of the High Court with respect to the bed sheets recovered to be stolen property to be wrong. It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen 296 property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question. Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door 297 locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house. All these circumanstances go to support the finding that he had assisted in the concealment of the stolen property and had thus committed the offence under s,414 I.P.C. We therefore see no force in this appeal and, accordingly, dismiss it. Appeal dismissed.

Five bales, containing woollen shawls and mufflers dispatched from Kanpur by the British India Corporation Ltd. and another bale despatched from Haimanpur to Kanpur, were loaded in wagon at Itarsi railway station. The lock of the wagon was found broken open and on checking at nagpur the aforesaid bales were found missing. On search, certain articles including some torn labels were recovered from the house of one Gopinath. The same day the appellant and few other persons were found by the Police,coming out of Gopinath 's house whose front door was locked. They were taken to the Police Station and at the instance of the appellant the police recovered woollen shawls, mufflers, bed sheets and certain house breaking implements from different places of that house. After investigation, six persons including the appellant were put on trial before the Magistrate for several charges under sections 120 B, 379 and 414 of the Indian Penal Code and except one Birendra Nath, all were convicted. On appeal, all the convicted persons were acquitted by the Additional Sessions Judge, on further appeal by the State, against the acquittal of Gopinath and the appellant, the High Court allowed the appeal only against the appellant with respect to the offence under section 414 of the Indian Penal Code. On appeal by special leave, this Court held : Held that the mere fact that the other accused persons were acquitted on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against 290 whom there is better evidence. The State could challenge the correctness of the findings of the Additional Sessions Judge about the property being stolen property and the High Court could record its own findings on that question. Held further, that it is not necessary for a person to be convicted under section 414 Indian Penal Code that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circum stances of the recovery in the present case sufficiently prove that the appellant had assisted in the concealment of the stolen property and had thus committed the offence under section 414 Indian Penal Code. The appeal therefore, must be dismissed.

ivil Appeal No. 18 '1 of 1974. Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974. K. R. Nambiar for the appellant. L. N. Sinha, Sol. General of India and Girish Chandra for respondents. The Judgment of the Court was delivered by SARKARIA, J. This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh. The appellants are office bearers of the Civil Employees Unions in the various Centers of the Defence Establishments of Secunderabad and Hyderabad. They filed a writ petition in the High Court to impugn the authority of the Commandants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associations. The Registrar of Trade Unions had issued Certificates of Registration to the four Unions represented by the appellants between 1954 and 1970. The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per letter dated 770 12 5 1971, by the Under Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recognition as these employees being in the Training Establishments, were not entitled to form Unions. The Commandant also issued a notice to the appellants to show cause why disciplinary action be not taken against them for forming this unlawful association. The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by article 19(1)(c) of the Constitution. In their reply affidavit, the respondents averred that the Civilian Non Combatants in the Defence Establishments were governed by the and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal. The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by article 19(1) (c) of the Constitution, had been lawfully taken away. He accordingly dismissed the petition. The appellants carried an appeal to the appellate Bench of the High Court. The Bench dismissed the appeal holding that the impugnea action was not without jurisdiction. The main contention of Mr. K. R. Nambiyar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, are civilians ', designated as "Non Combatants Un Enrolled". They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc. and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called "members of the Armed Forces" covered by article 33 of the Constitution. The points sought to be made out are: that the members of the appellants ' Unions are not subject to the as they do not fall under any of the categories enumerated in sub clauses (a) to (i) of section 2 of the , and that the impugned notifications are ultra vires the and are struck by articles 19(1)(c) and 33 of the Constitution. For reasons that follow, the contentions must be repelled. Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including article 19(1) (c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure 771 the proper discharge of their duties and the maintenance of discipline among them. In enacting the , in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub clause (i) of this section, persons governed by the Act, include "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army. " The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the "members of the Armed Forces" within the contemplation of article 33. Consequently, by virtue of section 21 of the , the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under article 19(1) (c). Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms. "No persons subject to the Act shall without the express sanction of the Central Government: (i) xx xx xx (ii) be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions " In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11 2 1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The , has also been made applicable to them. By another notification dated 23 2 1972, issued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the further empowers the Central Government to declare by notification, persons not covered by section (i) of section 3 also as persons on active service. 772 In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under article 19 (1) (c) of the Constitution. The appeal fails and is dismissed. There will be no order as to costs.

On the question whether civilian employees of Defence Establishments have the right to form trade unions under Art, 19(1) (c) of the Constitution, ^ HELD: Article 33 of the Constitution provides an exception to the Preceding Articles in Part III including Act. 19(1)(c). By article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall. in their application to the members of the armed forces or forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. [770GH, 771A] By virtue of section 2(l) of the , the Central Government was competent to make rules restricting or curtailing the Fundamental Rights of civilian employees of Defence Establishments to form trade unions under article 19(1)(c) of the Constitution. Although they are non combatants and are in some matters governed by the civil service regulations, yet they ar? integral to the armed forces. They answer the description of the members of the armed forces within the contemplation of article 33. [771 B D]

N: Criminal Appeal No. 108 of 1971. Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968. D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant. D. P. Unival and o. P. Rana for the Respondent. The Judgment of the Court was delivered by BEG, J. The four appellants Daryao Singh, aged 46 years. Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person. 589 The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas. Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) . It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute. Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years ' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary. These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. give occupants of the buggi, and, after that, Smt. Jahani, who soon joined them, were injured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis. A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: "1. Vertical abrasion, 1 1/2 in. x 1/2 in. On the head, 4 in. above the middle of the left eye brow 2. Transverse abrasion, 1 3/4 in.x3/4 in. On the head, 5 in. above the right eye brow. Round swelling" 2 in.x2 in. On the right side of the head, 1/2 in. above the ear, there was a depressed fracture 2 in.x2 in. underneath on the bone. Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in. behind the middle of the right car. Brain matter was coming out of the wound. 590 5. Transverse incised wound 1 1/4in.x 1/2 in. x bone deep on the A head 3 in. behind the upper part of the right car. The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute. Round blue mark 2 in.x2 in. On the right shoulder portion. There was swelling all over the head. There was no reference of injuries Nos. 1 and 6 in the inquest report . RAGHUBIRA 1. Transverse abrasion 1/4 in.x1/2. On the left ankle inner side. Vertical punctured wound in.x1/3 in.x1/4 in. On the back side, of the elbow, margins, clean cut. smooth and wall defined and angles were acute. Transverse lacerated wound on the head, 1 1/2 in. x 2 in. bone deep on the right side 3 in above the car. Round wound on the head 4 1/2 in. above the middle of the right eye brow with margins clean cut". ASA 1. Punctured wound 1/2 in.x1/4 in.x1/4 in. On the left side of the chest with abrasions on the margins, 64 in. below the axile. Abrasion 1/2 in.x1/4 in. On the left shoulder. Abrasion 1/2 in.x1/4 in. oblique, on the right side of the chest extending towards right shoulder from epigastrium. Abrasion 1/4 in.x1/8 in. On the inner side of the left hand I in. above the wrist. Abrasion 1/4in.x1/6 in. On the right arm back side 3 in. above the elbow. Contusion 3/4 in.x1/2 in. On the right side 3 in. below the edge of the iliac crest. Incised wound 1/2 in.x1/10 in. x skin deep 1/2 in. below the left eye. " 4. SMT. JAHANI: 1. Lacerated wound 1 1/3 in. x 1/2 in. bone deep from front to backward 3 1/2 in. above the left ear. Contusion 4 1/4 in.x1 in. On the left scapular region. 2 1/2 in. below the shoulder. Contusion 1 1/2 in.x1/4 in. parallel to the earth extending from the upper and inner end of injury No. 2. These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh). I had prepared the injury report exhibit Ka 16 at the time of examination. It bears my signature and is correct." 591 5. ASGHAR: 1. Contusion 2 in.x1/4 in.x1/4 in. going from front to back 31 in. above the nose. Punctured wound 1 in.x ' in.x 4 in. On the left hand, outer side 2 in. below the elbow. BIJAI SINGH: 1. Contused wound 1/2 in.x1/2 in. x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in. x1/2 in. in the inner part of the nail. Contusion 2 1/4 in.x3/4 in. extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in. x1/4 . On the palmer side. Abrasion 1/2 in.x1/4 in. On the back and anterior side of right hand, 3 1/2 in. above the wrist. " Injuries were found on the side of the accused on 3 appellants only. They were as follows: (1) OM PAL: 1. Lacerated wound 1/2 in.x4/10 in.x2/10 in. on the inner side of left forearm 3 1/2 in. above the left wrist. Lacerated wound 2/10 in.x2/10 in.x6/10 in. On the inner side of left forearm. Abrasion 3/10 in. X21 10 in. On the upper r side of left forearm, 3 1/2 in. above the left wrist. " 2. DARYAO: "1. Abrasion in.x3/10 in on the left shoulder in front side. Wound with scab 4/10 in.x2/10 in. On the left are outer side, 6 in. below left shoulder". BIRBAL: 1. Lacerated wound 2 in.x3/10 in. bone deep on the front , side of head. Abrased contusion 1 in.x2/10 in. On the left side of head, 3 in. above the left ear. Contusion 1/2 in.x4/10 in. On the right side of head, 2 in. above the right ear. Abrasion 1/4 in.x1/4 in. On the index finger of the right hand upper side on the middle phalux. Abrasion 1/4 in.x1/4 in. On the upper side at the root of the middle finger of right hand. Abrasion 1/2 in.x1/10 in. On the inner side of the lower portion of left fore arm, 3 in. above the wrist. Abrasion 3/10 in.x1/10 in. On the inner side of left wrist. 592 8. Lacerated wound 3/10 in.x1/10 in.x3/10 in. an the A right at a distance of 31 in. from side of thigh, anterior iliac spine". It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate 's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago. The defense case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution. Their defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason. The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there. The prosecution evidence suffered from some quite obvious infirmities. Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them. Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims. However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation. It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony. That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected. Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons. It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked. It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number. Even if these five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self defence. The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi. Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six. It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis. these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five. The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives. Three of the accused persons as already indicated, had received injuries. On their own version, these injuries were sustained in the same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt? The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants. The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared. This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted. 594 It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually. guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to be total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five. We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt. Justice has not only to be done, but, as have been often said, must manifestly appear to be done. Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre planning. Some Of the assailants had sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable. (See: Yehwant & Anr. vs State of Maharashtra;(1) and Sukh Ram vs State of U.P.)(2). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case. We have to examine the elect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated. In Yeshwant 's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under. This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness." Distinguishing Krishna Govind Patil vs State of Maharashtra (3) this Court said in Yeshwant 's case (supra) (at p. 302): "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal. Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & vs State of Punjab (4) Bharwad Mepa Dana & Anr. vs State of Bombay;(5) Kartar Singh vs State of Punjab;(6) Mohan Singh vs State of Punjab;(7) Ram Bilas Singh & Ors. vs State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil 's case (supra) was also quoted. In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons. A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303. (2) [1974) 2 S.C.R. p. 518. (3) ; (4) ; (5) ; (6) ; (7) [1962] Suppl (3) S.C.R. 848. (8) 596 The identity of some of the participants. It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly. The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows: "29. Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing. (2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school. " This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses. He was bound, with the background of hostility between two sides and 597 the events mentioned above, to have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shewn against him. We, therefore, think that appropriate action under Section 29 of the Children 's Act could have been taken in his case if the question had been raised in time. We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly. All that we can do now, in the circumstances of Om Pal 's case, is to recommend the remission of the remaining period of om Pal 's sentence to the authorities concerned. Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal.

(1) A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors. (3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. [873D 874B] In 1940, two brothers, defendants 1 and 5 partitioned their movable and immovable properties by two separate transactions. At that time defendant S had two sons who were minors. They and their minor brothers filed a suit in 1952 for cancellation of the partition and for re opening it on the ground that the partition was unjust and unfair and had the effect of depriving the minors of their legal shares in the properties. The trial court passed a preliminary decree for re partition of the movable properties as it was ex facie unjust and unfair and directed appointment of the Commissioner to go into the valuation of the assets sought to be partitioned while holding that the partition of immovable properties was neither unjust nor unfair. In appeal, the High Court agreed with the findings of the trial court but set aside the direction of the trial court for the appointment of Commissioner; quantified the value of the disparity in the share of the plaintiffs and passed a decree to the extent of 2/5th share of Rs. 17.700. In appeal to this court, passing a decree for a sum of Rs. 46,500/ with future interest in modification of the High Court 's decree, ^ HELD: (1) The division of immovable properties was just fair and equal. The properties were not actually valued according to the market rate and only a notional valuation had been given in the partition deed; but, in view of the detailed examination by the two courts of the facts regarding capitalised value of the properties allotted to the two brothers, it could not be said that the partition of the immovable properties was either unfair or unjust. This court will not interfere with concurrent findings of the fact given by the courts below in the absence of any extraordinary or special reasons. [868E F; 869B C] 2(a) But a perusal of the schedules to the partition deed relating to movable properties shows an ex facie disparity of about Rs. 10,000. [874B] (b) Further, the evidence disclosed that a sum of Rs. 55.000 with defend ant 1, was agreed upon between the brothers to be divided later, but this 7 1127 SCI/75 864 amount was not included in the partition deed. Assuming that defendant 5 had not taken any objection, since the amount was very large, his Silence or his acquiescence in allowing his elder brother to swallow the amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect because. he and his minor sons were member of an Hindu Undivided Family. [870H 871B] (c) Taking these two sums into account and calculating the plaintiff 's share in 1940 and adding interest thereon till date of decree, the plaintiffs would be entitled to Rs. 46,500. [874D E] (d) The High Court was right in holding that it would not be in the interest of the minors or. Of justice to order the appointment of a Commissioner for re opening the entire partition when the shares of the plaintiffs are easily ascertainable in terms of money and can be quantified. [874C D] Bishunodeo Narain and vs Seogeni Rai and Jagernath. 556, followed. Devarain and ors. vs Janaki Ammal and Ors. C.A. No. 2298 of 1066 dated r March 20, 1967, Lal Bahadur Singh vs Sispal Singh and ors. T.L.R. 14 All 498; Chanvira 'Pa ' vs Da 'Na ' 'Va ' & ors. I.L.R. and Maruti vs Rama I.L.R. referred to.

ivil Appeal Nos. 804 810 of 1977. Appeals by Special Leave from the Judgment and order dated 20 10 76 of the Allahabad High Court in Writ Petitions Nos. 1529, 1564 and 1568 to 1571/63. AND WRIT PETITIONS Nos. 650, 651, 652 653, 48, 394, 395, 691, 670, 680, 681, 687 688/79, 412 415, 416 418/79. Under Article 32 of the Constitution AND SPECIAL LEAVE PETITION (CIVIL) NOS. 5193, 5196 and 17 5517/79 From the Judgment and order dated 20 10 1976 of the Allahabad High Court in Civil Misc. Writ Nos. 1523, 1544, 1528, 1541 and 1527/63. R.K. Garg, P.C. Bhartari for the Appellant in C.A. 804/77. G. L. Sanghi and P.C. Bhartari, for the Petitioner in W.P. No. 48/79 and in S.L.P. Nos. 5193 5196 and 5517/79. P. C. Bhartari for the Appellant/Petitioners in C.A. 805 810/ 77 and W.P. 650, 651, 652, 653, 395, 691, 670, 680, 681, 687, 688/79 and other cases. Shanti Bhushan P.C. Bhartari for the Petitioner in W.P. 394/79. 500 S.V. Gupte, Raj Narain Munshi and Sobhagmal Jain for RR. 7 in C.A. Nos. 804 810/77 and W.P. Nos. 650/79 and SLP (C) Nos. 5193 5196/79 and 5517/79. Y.S. Chitaley, Raj Narain Munshi and Sobhagmal Jain for RR 7 in W.P. 48/79. Raj Narain Munshi, Sobhagmal Jain and S.K. Jain for RR 7. in W.P. 651, 652, 653, 394, 395, 691, 670, 680, 651, 687 688/79. P.B. Sharma for RR 8 in W.P. 48/79. O.P. Rana for the Intervener, State of U.P. In all these appeals, writ petitions and special leave petitions the challenge is against the validity of the scheme framed by the State Transport Undertaking of U.P. In giving special leave in Civil Appeals Nos. 804 to 810 of 1977 this Court restricted the special leave by stating "Special leave granted confined to the alleged conflict between section 68(c) of the and sections 7 and 16 of the U.P. Amendment Act of 1976, (Act 127/1976). When the hearing in these matters started Mr. Garg, learned counsel for the appellants, submitted that there is no conflict between sec. 68C of the and sections 7 and 16 of the U.P. Amendment Act. But his plea is that the amendment has not in any way affected or cured the defect in sec. 68C and there fore the defect in the scheme continues to render it invalid In terms of the restricted leave granted, we do not think it is strictly open to the learned counsel to raise the plea which he has taken before us. But as several matters are involved and there is a conflict between two judgments of the Allahabad High Court we gave permission to the learned counsel to raise this question. The point that is raised by Mr. Garg is that the introduction of sections 7 and 16 by the Amending Act 27 of 1976, the Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 does not dispense with the requirements specified in sec. 68C as the two section relate only to approved schemes. In order to appreciate learned counsel 's contention it is necessary to set out sec. 68C of the . Section 68C reads as follows: 501 "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to by published in the official Gazette and also in such other manner as the State Government may direct. " Sec. 68C requires the State Transport Undertaking to prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed. It is thus necessary that the scheme should give (1) particulars of the services proposed to be rendered; (2) the area or route proposed to be covered, (3) such other particulars thereto as may be prescribed. The scheme prepared under sec. 68C did not specify the number of services to be provided. The Allahabad High Court in Shashi Kant Rai & ors. vs Regional Transport Authority, Varanasi Region & ors. held that if the particulars regarding the adequacy etc. Of the proposed transport services are not given in the draft scheme then it will not be possible for the objectors to file any effective objection to the draft scheme in this regard and it would be difficult for the Hearing Authority to give its decision whether the draft scheme will be able to provide road transport services which would fulfil the four purposes mentioned in sec. The Court held that the draft scheme must give particulars indicating how the proposed transport services would be efficient, adequate, economical and properly coordinated. The scheme mentioned "adequate number of State transport services, according to traffic requirements are to be provided on the route or the portion thereof mentioned in cl. (2) above. The learned single Judge and the Division Bench of the Allahabad High Court were of the view that the draft scheme prepared under sec. 68 C was defective as the minimum number of services and the vehicles which were proposed to be introduced on the road had not been mentioned. In order to get over the effects of the decision the U.P. Legislature introduced the 502 Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 (U.P. Act No. 27 of 1976). Section 7 of the Act reads as follows: "Nothing contained in section 68C or section 68D of the principal Act shall be deemed to require or ever to have required a specification being made in an approved scheme of the number of services to be provided. " Section 16 of the Act is the validating section and runs as follows: "Notwithstanding any judgment decree or order of any court, any scheme prepared or published under section 68C, or approved or modified under section 68D of the principal Act or purporting to have been prepared, published, approved or modified shall not be deemed to be or have been in valid on the ground of the number of the services to be provided being not specified therein." Mr. R. K Garg, the learned counsel for the appellants, submitted that sec. 7 is applicable only to approved schemes i.e. for a scheme which had been approved under sec. 68D(3) and that its object is to cure the defect in approved scheme under sec. 68 D where the number of services provided is not mentioned. The learned counsel would reach the section that nothing contained in the principal Act shall be deemed to require or ever to have required a specification of the number of services to be provided in an approved scheme. He would emphasise the words "approved scheme" and submit that the change if any is as regards the particulars required under an approved scheme under sec. 68 D and that this section would not relate, to the scheme under sec. The marginal note to sec. 7 states "Specification of number of services not an essential requirement of Section 68C or Section 68D." The intention therefore is to make specification of number of services not an essential requirement under sections 68C and 68D. The section therefore is intended to cover sec. 68 C also. It is seen the intention is carried out by the section providing that "Nothing contained in Section 68C or Section 68D of the principal Act shall be deemed to require . " The operation of the section is thus intended to apply both to sec. 68C and 68 D. The result would be that if one of the requirements of sec. 68 C is that it should specify the number of services to be provided it shall be deemed that requirement was never there. The reference to the approved scheme is because sec. 68 C and section 68 D form, part of the same procedure of publication of a scheme and approval of the scheme. That this is the object is put beyond all doubt by introduction of the validating 503 section, section 16, which provides that in any scheme prepared or published under sec. 68 C or approved or modified under sec. 68D of the principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein. We are satisfied that sections 7 and 16 of the Act have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under sec. 68 C or approved or modified under sec. 68 D. The plea of the learned counsel therefore fails. In this, view we hold that the decision in Shashi Kant Rai and ors. v Regional Transport Authority, Varanasi Region, and Ors. (supra) is erroneously decided. When the arguments of Mr. Garg on this point and the reply thereto were heard, Mr. Shanti Bhushan, the learned counsel for one of the appellants, submitted that he may be permitted to raise the question of validity of sec. 68 C. He submitted that if the amended sections 7 and 16 of the U.P. Act have the effect of modifying sec 68 C, sec. 68 C itself would not be valid. According to the learned counsel the requirement of sec. 68 C is that before a scheme is prepared and published the State Transport Undertaking must be of the opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport services, it is necessary in the public interest that the road transport services should be run and operated by the State Transport Undertaking. In order to satisfy the requirements the learned counsel submitted that the scheme should give (1) particulars of the nature of the services proposed to be rendered; (2) area or route proposed to be covered and such other particulars respecting thereto as may be prescribed. The first two requirements with which we are concerned are under sec. 68 C. Relying on a decision of this Court in B. H. Aswathanarayan Singh & ors. vs State of Mysore and Ors. the learned counsel submitted that if the requirement as to specification of the number of services to be provided in the draft scheme is dispensed with the particulars of the nature of services proposed to be rendered as required in sec. 68 C would be lacking. The learned counsel referred to page 93 of the case (supra) wherein the Court observed that "when sec. 68 C provides for giving particulars of the nature of the services proposed to be rendered the intention is that such details should be given as are necessary to enable the objectors to make their objections. We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also 504 in the form of minimum and minimum number of vehicles and trips on each route. " Strong reliance is placed on the requirement that the details or the nature of services should not only be in the form of precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route. But this statement is explained in the next two sentences where the Court stated: "Furnishing of minimum and maximum number of vehicles and trips for each route would also in our opinion, satisfy the requirement that particulars should be furnished of the services proposed to be rendered. Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered. " We do not think that the appellants are right in submitting that when the word "particulars" is used in this part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars". It is thus clear that the exact number of vehicles and trips for each route need not be given and all that sec. 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified. We 15 are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved scheme. The learned counsel Mr. Shanti Bhushan submitted that in any event as the maximum or minimum number of buses, vehicles and trips have not been mentioned, the scheme should be held to be inoperative. This contention again is not factually substainable as the impugned scheme under sec. 68C which was notified in the U.P. Gazette on 4 12 1961 gave the required particulars. Clause 3 of the scheme stated "Adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above. The provision of Transport service otherwise than under the scheme is prohibited. " Clause 2 provided that State Road Transport passenger services shall be provided on the inter State route Agra Dholpur of Agra Region. Clause 6 provided that the Transport Vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats. Clause 7 mentions the permits which have been cancelled. A reading of the scheme would indicate that transport vehicles and services will be provided on the 505 routes taken over by country type vehicles with 30 to 45 seats capacity. There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963. When specifically asked whether such an objection was taken to the draft scheme the learned counsel for the appellants were unable to say that the objection was taken. We feel it is futile for them to raise the plea after a lapse of about 15 years. There is no substance in any of the contentions raised. One cannot but express amazement at the tenacity of the operators in stalling any scheme for nationalisation of public transport. The appeals, special leave petitions and writ petitions are dismissed with costs. V.D.K. Appeals and petitions dismissed.

On the question whether sections 7 and 16 of the U.P. Motor Vehicles (Special Provisions) Act, 1976 (Act 127 of 1976) related only to "approved" Schemes under section 68D of the and, therefore, the approved scheme for inter state range Agra Dholpur of Agra region was inoperative, the Court, while dismissing the Writ Petitions and the connected special leave petitions. ^ HELD: (1) Sections 7 and 16 of U.P. Motor Vehicles (Special Pro visions) Act, 1976 have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under section 68D of the . [503A B] The marginal note to section 7 states "specification of number of services not an essential requirement of section 68C or section 68D", makes the intention clear that the section is intended to cover section 68C also. The intention is also carried out by the Section providing that "Nothing contained in section 68C or section 68D of the Principal Act shall be deemed to require. " The operation of section 7 is thus intended to apply both to sections 68C and 68D. The result would be that if one of the requirements of section 68C is that it should specify the number of services to be provided, it shall be deemed that requirement was never there. The reference to the approved scheme is because section 68C and section 68D form part of the same procedure of publication of a scheme and approval of the scheme. That this is the object is put beyond all doubt by the introduction of the validation section, section 16, which provides that in any scheme prepared or published under section 68C or approved or modified under section 68D of the Principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein. [502F H, 503A] Shashi Kant Rai & ors. vs Regional Transport Authority, Varanasi Region and ors. AIR 1978 All. 68 over ruled. Failure to specify the member of services would not invalidate the draft scheme under section 68C or the approved scheme under section 68D of the . It cannot be said that when the word "particulars" is used in this part of section 68C, it can only be satisfied if the exact number of vehicles and trips for each rank is specified, and, that 499 there is no other way of satisfying the requirement implicit in the use of the A word "particulars". The exact number of vehicles and trips for each route need not be given and all that section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. [504C E] B.B. Aswathanarayan Singh & Ors. vs State of Mysore & ors. , applied. (3) In the instant case, the impugned scheme cannot be held to be inoperative for non mentioning of the maximum or minimum number of buses, vehicles and trips, since the scheme notified in U.P. Gazette on 4 12 1961 gave the required particulars. A reading of the scheme would indicate that transport vehicles and services would be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity. Moreover, this objection which was not taken before the scheme was approved in 1963 would not be allowed to be taken after a lapse of 15 years. [504 G H, 505 A B]

Civil Appeal No. 123 of 1969 and 2023 of 1972. From the Judgment and order dated the 25th October 1967 of the Punjab and Haryana High Court in Civil Writ No. 525 of 1966 and Civil Appeal No. 2023 of 1972. Appeal by Special Leave from the order dated the 20th May, 1970 of the Punjab and Haryana High Court in L.P.A. No. 231 of 1970. Naunit Lal and R. N. Sachthey for the Appellant in both the appeals. N. N. Goswamy and Arvind Minocha for the Respondent in C.A 123 of 1969. O. P. Sharma for Respondent No. 1 (In C.A. 2023/72). The Judgment of the Court was delivered by KRISHNA IYER, J. These two appeals turn on the construction of section 19B of the Punjab Security of Land Tenures Act, 1953 (Act X of 628 1953) (for short, the Act). This legislation was enacted to bring about an agrarian re ordering so pivotal to the progress of our rural economy. Haryana, happily a granary of our country, is one of the States where land reform laws are likely to generate great changes by banishing big concentration of Natur 's bounty in a few feudal hands, creating an enthusiastic sense of distributive justice and exploiting the productive potential of land by the possessive passion of the landless many. So strategic is land reform that special constitutional concern has been shown for this programme. Naturally the State enacted the Act whereby ceiling on land ownership was set; surplus lands were taken over for settling ejected tenants and others and peasant proprietorship created. The scheme of the Act with which we are concerned is fairly simple and somewhat scientific, although its language, what with frequent amendments dovetailed from time to time, has made for ambiguity, obscurity, marginal inconsistency and a rich crop of litigation. Indeed, the conflict of opinion at the High Court level and the bone of contention before us arise from this drafting deficiency Legal Preface: A thumb nail sketch of the Act is a prefatory necessity. the defines 'small land owner ' [section 2(2)] having in mind the optimum ownership in the given conditions. 'Permissible area ' [section 2(3)] is a cognate concept limiting the maximum permissible extent a person may hold, and so long as he does not have any excess, he is a small landholder. He can evict the tenants from his holding and be in actual enjoyment as provided by the Act. If, however, he has lands beyond the permissible area, he becomes a large land owner and has to cough up the excess. However, he is given the option to choose there best area he desires to keep, called 'reserved area ' [section 2(4)] and then he must make available to the State such excess called surplus area [section 2(5 a)]. This creation of a surplus pool or reservoir is vital to the success of the statutory project since, by distribution of such lands, rehabilitation of ejected tenants and landless persons is to be "accomplished. Maximisation of the surplus pool and suppression of evasion by large holders are of profound legislative, concern. Even if a person is a small holder, it is quite on the cards that, by inheritance or other operation of law, or by voluntary transfer, he may acquire lands in excess of the permissible limit. The law takes care to see that such excess is also made available for re settlement of ejectees and their ilk. In short, the legislative mandate is that every agricultural holder in the State shall hold no more than the permissible area and the surplus in the hands of large holders, whether acquired by voluntary transactions or involuntary operation of law, will go to feed the surplus pool. A semi medieval set up where considerable estates are cornered by a landed gentry, will naturally resist re distributive reform measures and try ingenious methodology to defeat the law. But the legislature has to be astute enough to outwit such devious devices and subtle subterfuges. With this end in view, the Act has been amended to block all escape routes unearthed by the law makers as often as the High 629 Court has upheld certain patterns of alienations and oblique dealings by interpretative process. A study of the history of the Act and the provocation for and frequency of amendments thereto, suggests an unspoken criticism about judicial approach which we will refer to later. Suffice it to say that the law we are construing is a radical agrarian measure; its basic goals are to cut down large holdings and distribute lands to various landless people according to a design and to foster, according to legislative policy, an agrarian community of peasant proprietors. De hoarding and defeating hide outs are essential to make the twin objects successful and so sections 10A and 19B among others, have been written into the Act. To explore the import and ambit of these two provisions, particularly the former, with a view to see whether it strikes at a gift made by, the respondent in. favour of his sons whereby he sought to stow away some of his lands, shed some of his excess lands and look slim on as a small holder before the law Language permiting, the Court as interpretor, must fulfil, not frustrate the legislative mission. Factual Silhouette At this stage it is appropriate to set out the facts in the two appeals which are not in dispute and speak for themselves. C.A. 123 of 1969: One Sampuran Singh who owned 450 bighas and 9 biswas of land, acting with foresight, gifted half of it to his mother in 1951, perhaps with a premonition of coming restrictions by way of ceiling on owner ship. We need not speculate on that point in the light of subsequent happenings. The Act came into force on April 15, 1953 but even before that date the. Owner (who was the petitioner before the High Court under article 226 and respondent before us) executed a mortgage with possession over 12 bighas and 5 biswas. There was also some waste land included in his total holding which fell outside the scope of the Act. So much so, on the date when the Act came into force, he was the owner of about 178 bighas which, admittedly, fell safely short of the permissible area of 30 standard acres [vide section 2(3)]. Having thus dwarfed himself into a small land owner as defined in section 2(2), the 'ceiling ' provision held out no threat to him. Certain small extents of land which were legally deductible from his total holding brought down the area in his possession to 138 odd bighas. Unfortunately for him, his mother passed away in February 1958 and, he being the heir, all that he had gifted to her earlier came back to him as successor. The unhappy consequence was that his holding expanded to 363 odd bighas, far in excess of the permissible area as set out in section 2(3) of the Act. Necessarily, this spill over became surplus area as in section 2(5 a) of the Act. Sensing the imminent peril to his property and manoeuvring to salvage it from the clutches of the legal ceiling the petitioner executed a gift of 182 bighas of land to his son by deed dated February 11, 1959. He also executed three mortgages with possession. The cumulative result of the shedding operations was to shrink the size of his holding to well within the permissible area. The Collector, however, investigat 630 ed into the matter and declared an area of 117 bighas as surplus in his hands. He reached this conclusion by ignoring the tell tale gift of February 1, 1959 in favour of the son and the three possessory mortgages executed in June 1958. The status of 'small land owner ' thus being forfeited, the threat lo the surplus lands revived but was sought lo be warded off by the petitioner moving an unsuccessful appeal Lo the Commissioner, and a further fruitless revision to the Financial Commissioner. Eventually, he challenged the Collector 's order i Writ Petition which, met with success. There was disagreement between the two learned Judges on the Bench and the third learned Judge decided in favour of the petitioner holding that section 19B, read with s 10A. did not affect the petitioner 's transfers. The two Judges, whose opinion upheld the claim of the petitioner, substantially concurred in their reasonings but the scope of the interpretative exercise. is somewhat limited. We, therefore, propose straight to go into a study of the relevant provisions and may perhaps indicate our conclusion in advance. We wholly disagree with the High Court and hold that to accept the construction which has appealed to the learned Judges is to frustrate the agrarian reform scheme of the Act and the alternative reading gives life to the law, teeth to its provisions and fulfilment to its soul. C.A. 2023 of 1972: The facts in this appeal are different but the point of law involved is identical. In both the cases the State of Haryana has come up to this Court in appeal, the former by certificate under article 133(1)(c) and the latter by special leave granted by this Court. Anyway, in C.A. 2023 of 1972, respondent No. 1 owned 86 odd ordinary acres of land on April 15, 1953 when the Act came into force. After the commencement of the Act he inherited nearly 30 ordinary acres and thus he held well above the permissible area and ceased to be a small land owner. Around the year 1957 he transferred 167 bighas of land to respondents nos. 3 to 6 pursuant to a Civil Court decree passed in 1957 in favour of his sons and wife. We may mention here, parenthetically but pathetically, that the weapons in the armoury of large land owners to defeat the land reform law included securing simulactral decrees from civil courts against themselves in favour of their close relations, thus using the judicial process to have. their excess lands secreted in the names of their dear and near. This invited legislative attention and an amendment of the Act was made viz., section 10A whereby decrees and orders of courts were to be ignored in dealing with surplus lands. Thus, the Collector ignoring the transfer of 167 bighas of land by respondent No. 1 (which resulted ill civil court decrees of 1957 in favour of his sons and wife declared 38.41 ordinary acres as surplus with respondent No. 1. The statutory. remedies did not see the first respondent (writ petitioner) safe ashore and so he sought harbourage by moving the High Court under article 26 where he urged that the land inherited by him and later transferred to his sons and wife were not hit by section 10A and section 19B of the Act He succeded in the Court in view of a certain strict construction adopted by the Court and the State has come up in appeal challenging the soundness of the High Court 's approach. 631 Statutory Construction: The key thought that pervades our approach is that if the constitutionally envisioned socio economic revolution is not to be a paper tiger, agrarian laws have to be meaningfully enacted, interpreted and executed and the court is not the anti hero in the drama of limping land reform. Much to the same effect this Court observed in Amar Singh 's Case(1): "We have to 'bear in mind the activist, though inarticulate, major premise of statutory construction that the rule of law must run close to the rule of life and the court must read into an enactment, language permitting, that meaning which promotes the benignant intent of the legislation in preference to the one which perverts the scheme of the statute on imputed legislative presumptions and assumed social values valid in a prior era. An aware court, in formed of this adaptation in the rules of forensic interpretation, hesitates to nullify the plain object of a land reforms law unless compelled by its language, and the crux of this case is just that accent when double possibilities in the chemistry of construction crop up. " While dealing with a somewhat analogous set of provisions under the same Act. The emphatic importance of augmenting the surplus pool for distribution by the State is brought out in Amar Singh (supra) thus: "The triple objects of the agrarian reform projected by the Act appear to be (a) to impart security of tenure (b) to make the tiller the owner, and (c) to trim large land holdings, setting sober ceilings. To convert these political slogans and into legal realities, to combat the evil of mass evictions, to create peasant proprietorships and to ensure even distribution of land ownerships a statutory scheme was fashioned the cornerstone of which was the building up of a reservoir of land carved out of the large landholdings and made available for utilisation by the State for re settling ejected tenants." (p. 998) Unfortunately, judicial decisions construing the language of the law have resulted in stultifying the objectives of the enactment leading to further amendments. We are concerned in the present case with sections 10A and 19B which, in their final form, appeared by an amendment of 1962 (Act XIV of 1962), but retrospective effect was given with effect from the commencement of the Act, viz., April 1953. In this context it is convenient to excerpt the observations of this Court in Amar Singh (supra) at p. 999: (1) ; , 996. 632 "The objects and reasons of Punjab Act 14 of 1962, which brought in certain significant restrictions on alienations and acquisitions of large land holders starts off in the statement of objects thus: "Some of the recent judicial pronouncements have the effect of defeating the objectives with which the Punjab Security of Land Tenures Act, 1953, was enacted and amended from time to time. It was intended that the surplus area of every land owner recorded as such in the revenue records should be made utilisable for the settlement of ejected tenants. " Certain specific decisions and their impact on the legislative operation were mentioned, and then the statement of objects proceeded: "In order to evade the provisions of section 10 A of the Parent Act interested persons, being relations, have obtained decrees of courts for diminishing the surplus area. Clause (43 of the Bill seeks to provide that such decrees should be ignored in computing the surplus area. " The short point which confronts us in both these appeals is as to whether the gifts made by land owners who exceeded their permissible area having come by additional lands by inheritance are to be ignored or taken into account when computing the surplus area in their hands, having regard to the specific provision in section 19B living in fellowship with section 10 A. It is appropriate to read sections 10A and 19B here, before proceeding to the crucial discussion in the case: 10 A. (a) The State Government or any officer em powered by it in this behalf shall be competent to utilize any surplus area for the resettlement of tenants ejected, or to be ejected, under clause (i) of sub section (1) or section 9. (b) Notwithstanding anything contained in any other law for the time being ill force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a) Explanation. such utilization of any surplus area will not affect the right of the landowner to receive rent from the tenant so settled. (c) For the purposes of determining the surplus area of any person under this section, any judgment, decree or order of a court or other authority, obtained after the commencement of this Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored." 633 "19B. Future acquisition of land by inheritance, in excess of permissible area. (1) Subject to the provisions of section 10 A, if after the commencement of this Act, any person, whether as land owner or tenant, acquires any inheritance or by bequest or gift from :. person to whom he is an heir any land, or in after the commencement of this Act and before the 30th of July, 1958, any person acquires by transfer, exchange, lease, agreement or settlement any land, or if, after such commencement, any person acquires in any other manner any land and which with or without the lands already owned or held by him exceeds in the aggregate the permissible area, then he shall within the period prescribed, furnish to the Collector, a return in the prescribed form and manner giving the particulars of all lands and selecting the land not exceeding in the aggregate the permissible area which he desires to retain, and if the land of such person is situated in more than one patwar circle, he shall also furnish a declaration required by section 5 A. (2) If he fails to furnish the return and select his land within the prescribed period, then the Collector many in respect of him obtain the information required to be shown in the return through such agency as he may deem fit and select the laud for him in the manner prescribed in sub section (2) of section 5 B. (3) If such person fails to furnish the declaration the provisions of section 5 C shall apply. (4) The excess land of such person shall be at the disposal of the State Government for utilization as surplus are; under clause (a) of section 10 A or for such other purposes the State Government may by notification direct." Unclouded by case law, we first study section 1953. Forgetting section 10 A for moment, we find that if, after the commencement of the Act, April 15, 1953, any person acquires any land by inheritance or bequest or gift which, with the lands already held by him exceed in the in the permissible area, than he shall furnish to the Collector a return indicating the permissible area he desires to retain. This he shall do within the prescribed period [S 19B(1)]. If he defaults to make the return, the Collector will select the land for him [19B(2). He will suffer a penalty for failure to furnish the declaration [19B(3)]. The excess land, i.e., the surplus area shall be at the disposal of Government for utilization under section 10 A [19B(4)1. The surplus land will be used for re settlement of tenants ejected or to be ejected under cl. (i) sub section (1) of section 9 or other purpose notified by Government. The profound concern of the law to preserve the surplus stock is manifest from the obligation cast by sub sections (1) and (4) of 19B to declare and deliver excess lands. How you came to hold the excess is not the question. Why you should be permitted to keep more than what others can lawfully own is the query. A might have 10 925 Sup CI/75 634 acquired by paying hard cash might have received by gift and by bequest and D by settlement and by partition. The agrarian policy is equitable ownership and the reform philosophy is redistributive justice the rural goal being small peasant proprietorship. What difference does it make as to how you came by a large holding from the standpoint above outlined? The thrust of section 19 B is that even if the source of the excess area is inheritance, bequest of gift, the capacity to own is conditioned by the permissible limit. Section 10 A does not militate against this mandate of section 19 B. Indeed, section 19 B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15, 1953 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. Section 10 (a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even section 10A(b) strikes not discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. The drafting of the saving clause is cumbersome but the sense is and, having regard to the conspectus, can only be that although in the hands of the propositus, it is surplus land, if among the heirs it is not, then their transfers will not be affected by the interdict of section 10 A(a) the sins of the father shall not set the teeth of the children on edge. If the heirs are otherwise small holders, the fact that their father was a large owner will not deprive the former of their heritage, if it is less than the permissible area. We see no conflict between section 10 A and 19B. Assuming some inconsistency, primacy goes to section 19B which effectuates the primary object. It is settled law that Courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not. Counsel for the respondents adopted the arguments which found favour with the High Court and pressed two points. The scheme of the Act, according to the learned Judges, was to see that no one held in excess of the permissible area and since by the gift to the son or wife the latter had only lands within permissible limits, there was no frustration of the policy of the law This reasoning is repugnant to the basic scheme because the surplus pool will be adversely affected if gifts and other transfers which will skim off surplus were to be allowed. Indeed, the flaw in the High Court 's argument is that if it were allowed to prevail, there will be no surplus land at all, every large holder being free to screen his surplus in the names of his with and kin or servants or reliable friends, by going through alienatory exercises. A legislation which has provided for ignoring decrees diminishing surplus lands and has otherwise prevented the escape of excess area by voluntary transfers, cannot conceivably be intended to permit inherited excesses. The second argument which appealed to the High Court is a little curious, and somewhat difficult to follow. Section 19 B directs the owner who, by inheritance, comes to own an excess area, to make a declaration of his lands within a prescribed time. This does rot mean that the time lag is statutorily given for executing gifts and 635 transfers to defeat the law itself. Such a conclusion would be obviously absurd. What is intended is to give some time to the, heir to ascertain the assets he has inherited, make the choice of his 'reserved area ' which he likes to keep and make the necessary declaration. A processual facility cannot be converted into an opportunity to pervert and to thwart the substantive object of the law. After all, courts, faced with special case situations, have 'creatively ' to interpret legislation. The courts are 'finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further. processing ', said Donaldson J., in Corocraft Ltd. vs Pan American Airways Inc.(1) and indeed it is no secret that courts constantly give their own shape to enactments. We feel that when economic legislation in the implementation of Part lV of the Constitution strikes new ground and takes liberties with old jurisprudence, there looms an interpretation problem of some dimensions which Indian jurists will have to tackle. The genre of agrarian reform laws, with special constitutional status, as it were, warrants interpretative skills which will stifle evasive attempts, specially by way of gifts and bequests and suspect transfers. Here sections 10 A, 19 A and 19B, inter alia, strike at these tactics. Our conclusion, in conformity with the principles of statutory construction we have projected, is that the gifts in both the appeals fail in the face of section 19B. It follows that the appeals have to be allowed, which we hereby do without hesitation, without costs how ever to either party at any stage. P.H.P. Appeals allowed. (1) , 732.

Rule 14(1) of the Railway Servants (Discipline and Appeal) Rules, 1968 provides that not withstanding anything contained in rr.9 to 13, where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider he circumstances of the case ' and make such orders thereon as it deems fit, Section 12 of the Probation of ' Offenders Act, 1958, provides that not with standing anything contained in any other law a person found guilty of an offence and dealt with under the provisions of s.3 or s.4 shall not suffer a disqualification, if any, attached to a conviction of an offence under such law. The respondents were found guilty of certain minor offences and instead of being sentenced, were released on probation under the provisions of the Probation of offenders Act. The concerned Disciplinary Authorities however, re moved them from service on the ground of their conviction without any further opportunity to the respondents. The respondents challenged the orders of removal and the High Court quashed the orders. Dismissing the appeals to this Court, ^ HELD: (1) The conviction of the delinquent employee would be taken as sufficient proof of misconduct, and then, the authority will have to hold a summary inquiry as to the nature and extent of the penalty to be imposed If the authority is of the opinion that the offence is too trivial or of a technical nature it may not impose any penalty in spite of the conviction. If the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude, and therefore it was not desirable or conducive in the interests of administration to retain such a person in service, the disciplinary authority has the undoubted power, after hearing the employee and considering the circumstances of the case, to inflict any penalty without any further departmental inquiry. As there was no such application of mind and consideration of circumstances the orders of removal are rightly quashed [795H 796E, H] (2) The view of the Kerala High Court, that as the Magistrate released the 7 delinquent employee on probation, no penalty was imposed and that therefore r.14 (1) did not apply, is not correct. The word 'penalty ' in the rule is relatable to the penalties to be imposed by the Disciplinary Authorities under the Rules and not to the sentence passed by a criminal court. Because, so far as the disciplinary authority is concerned it could only impose a penalty and not a sentence, just as a criminal court, after conviction, does not impose a penalty but passes a sentence. Hence, the words "where any penalty is imposed" in r.14 (1) should be read as 'where any penalty is impossible ' by the Disciplinary Authority. [787E F; 788A R; 789D H] 2 L1127SCI/75 784 (3) If the Magistrate did not choose, after convicting the accused, to pass any sentence on him but released him on probation it could not be said that, the stigma of conviction is completely washed out or obliterated or that no disciplinary action could be taken under r. 14(1). [790B C] Sections 3, 4 and 9 of the Probation of offenders Act show that an order of ' release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Such an order is merely in substitution of the sentence from a humanist point of view. The control over the offender is retained by the criminal court and where it is satisfied that the conditions of the bond had been broken by the offender, who has been released on probation the Court can sentence on the basis of the original conviction, showing that the guilt is not obliterated. [790H 791D] (4) The words disqualification, if any attaching to a conviction of an offence under such law, in section 12 mean (1) that there must be a disqualification resulting from a conviction; and (ii) that such disqualification must be provided by some law other than the Probation of offenders Act. It could not be contended that the `disqualification ' referred to is the 'liability under r. 14(1) to disciplinary action without a departmental enquiry ', and that such disqualification is removed by release on probation. The disqualification must he an automatic disqualification; such as regarding holding of officer or standing for elections, as a consequence of ' the conviction. Rule 14(1) incorporates the principle contained in proviso (a) to article 311(2). But neither of these provisions contain any express provision that the moment a person is found guilty of misconduct of a criminal charge he will have to be automatically dismissed from service. These provisions are merely enabling and do not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. The proviso to article 311(2) was enacted because, when once a delinquent employee has been convicted of a criminal offence at a trial, where he had a full and complete opportunity to contest the allegations, that should be treated as a sufficient proof of his misconduct, and the disciplinary authority may be given the discretion to impose the penalties referred to in article 311(2), without holding a fresh full dress departmental inquiry. If r. I ' ' of the Probation of offenders. Act completely wipes out this liability to disciplinary action on the basis that it is a 'disqualification ' under the section then it would be ultra vires as it would be in direct conflict with the Constitutional provision. [788G H; 789C D, 791F 792F] R. Kumaraswami Aiyar v The Commissioner Municipal council, Tiruvannamai and another [1957] Cri. L. J. 255, 256 Om Prakash vs The Director Postal Services (posts and Telegraphs Deptt.) Punjab Circle, Ambala and others, A.I. R. 1973 Punjab 1, 4; Director of Postal Services and Anr. vs Daya Nand, , 341, Embaru vs Chairman Madras Port Trust Akella Satyanarayana Murthy vs Zonal Manager. Life Insurance Corporation of India, Madras. A.I.R. 1969 A.P. 371, 373 and Premkumar vs Union of India and others, [1971] Lab. & Ind. Cases 823, 824. approved. (5) Therefore the Rajasthan High Court was wrong in giving 1 wide connotation to the word 'consider ' in r. 14 and holding that it requires the disciplinary authority to hold a detailed determination of the matter once again. The rule making authority deliberately used the word 'consider ' and not 'determine ' because, the latter word has a much wider scope. the word 'consider ' merely connotes that there should be active application of mind by the disciplinary authority after considering the entire circumstances of to case in order to decide the nature and the extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This could only be objectively determined if the delinquent employee is heard and given a chance to satisfy the authority regarding the final orders that may be passed The provision merely imports the rule of natural justice that before taking final action the delinquent employee should be heard and the circumstances objectively considered. [795B 795D]

ivil Appeal No. 3674 of 1988. From the Judgment and Order dated 15.3.1988 of the Allahabad High Court in Civil Misc. Writ Petition No. 20328 of 1986. V.C. Mahajan, C.V.S. Rao and A. Subba Rao for the Appel lants. Deoki Nandan Aggarwal in person and Mrs. section Dixit for the Respondents. The Judgment of the Court was delivered by V. RAMASWAMI, J. The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977. He retired on October 3, 1983 on superannuation at the age of 62. He had elected to receive his pension under Part I of the First Schedule to the High 878 Court Judges (Conditions of Service) Act, 1954. As he had put in only a period of five years 10 months and 17 days service as a Judge. of the High Court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250 per month in the letter of Accountant General, Allahabad dated December 2, 1983. The gratuity was worked out at Rs. 11,665.66 P. in lump sum under Section 17A(3) also on the ground that he had put in only five completed years of service. The pension was payable with effect from October 4, 1983. The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986. On December 10, 1986 the petitioner filed a writ petition before the Allahabad High Court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa tion of pension for the period from November 1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days. During the pendency of the writ petition the respondent made representations to the Government of India stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge. By its order dated April 16, 1987 the Government of India rejected the repre sentation of the respondent among other grounds that the request was belated. By its judgment dated March 15, 1988 the High Court allowed the writ petition directing the Government to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment. The main grievance of Union of India in this appeal is that the High Court has rewritten the retirement benefit provisions of the First 879 Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional. Since the High Court issued the manda mus directing the Union of India to add one month and 13 days to the total length of service renderred by the re spondent as Judge of the Allahabad High Court for the com puting the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988). " However, they added that the period shall be disregarded in calculat ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act. In order to appreciate the argument of the learned counsel for the appellant Union of India it is necessary to set out certain provisions relating to pension payable to a Judge of the High Court on his retirement. Clause 17 of the Government of India (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either: "(a) he has completed not less than 12 years ' service for pension; or (b) he has completed not less than 7 years ' service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years ' service for pension and his retirement is medically certified to be necessitated by ill health. " Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension. As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of the is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out 880 only relevant provisions relating to pension in of the First Schedule. Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows: "2. Subject to the other provisions of this part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in para graph 3 increased by the additional pension, if any, to which he is entitled under para graph 5. 3. The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs.5,000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: provided that the basic pension shall in no case exceed Rs. 10,000 per annum. For the purpose of calculating additional pensions, service as a Judge shall be classi fied as follows: Grade I. Service as Chief Justice in any High Court; Grade II. Service as any other Judge in any High Court. For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be enti tled to the additional pension specified in relation to that grade in the second column of the table annexed hereto. provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year. 881 TABLE Service Additional pension Maximum aggregate per annum pension per annum Rs. Rs. Grade I 740 20,000 Grade II 740 16,000 9. Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State. Note: The Proviso was added by Act No. 46 of 1958. " By the Amending Act 35 of 1976 the First Schedule was amended by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5. The substituted paragraphs 2 and 9 read as follows: "2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and (b) for service as any other Judge in any High Court, Rs. 1,600 per annum: provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge. 882 9. Where a Judge to whom this Part ap plies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding any thing contained in the foregoing provi sions, a pension of Rs.8,400 per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State." These amended provisions Were held applicable in respect of all the Judges of the High Court who have retired irre spective of their dates of retirement in the decisions of this Court in Union of. India vs B. Malick, ; and N.L. Abhyankar vs Union of India, ; However the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows: "2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.4,500 per annum for each completed year of service; (b) for service as any other Judge in any High Court, RS.3,430 per annum for each completed year of service: provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge. " The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000 883 At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974. That was also ratio of the decision of the Constitution Bench of this Court in D.S. Nakara vs Union of India, ; On the same reasoning and logic we have to hold that Amending Act. 38 of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act. The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983. For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time. This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years. On the assumption that he is entitled for such en largement and the had completed six years of service, the further case of the respondent was that he is entitled for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600 per annum for the period prior to November 1, 1986. He further contended that in paragraph 2 of Part I of the First Sched ule the words "who has completed not less than seven years of service for pension ' ' shall be read as "who has completed more than five years of service for pension" on 884 the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of Rs. 1,600 for each completed years of service, a person who had not completed seven years of service could not be denied that benefit. But finding that a person who had completed only five years of service or less than five years of serv ice, if the pension is to be calculated at the rate of Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service. This argument was accepted by the High Court on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service. The High Court was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a dis criminatory piece of legislation and that however the provi sion can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years ' in the place of not less than seven years. " In that view the High Court amended paragraph 2 so to say by substi tuting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment of pension at Rs.9,600 per annum for the period from 4.10.1983 to 31.10.1986. As already stated as per the Amending Act 38 of 1986 the pension payable for those who have completed 7 years of service was to be calculated at the rate of Rs.3,430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension. On the same reasoning which prompted the High Court to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service the Judge would have earned Rs. 13,720 and on com pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years". The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986. Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given. 885 We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot re write, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni vs Nirmala Industries, at 488; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt. Hira Devi & Ors. vs District Board, Shahjahanpur, ; at 113 1; Nalinkhya Bysack vs Shyam Sunder Haldar & Ors., ; at 545; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdaor Sabha, ; ; section Narayanaswa mi vs G. Pannerselvam & Ors., ; at 182; N.S. Vardachari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of Commerce, Allahabad; , at 438. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power. The view of the High Court that paragraph 2 discrimi nates between those who have completed seven years of serv ice and those who have not completed that much service is in our opinion not correct. It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension. What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and vari 886 ous other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those who had not completed seven years of service under preconstitu tion scheme. Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension. Part I deals with a pensionary scheme. Prescribing a minimum period of service before retirement on superannua tion, for pension is the very scheme itself and not a clas sification. It is so to say a qualification for eligibility. It is different from computation of pension. All those who satisfy that condition are eligible to get pension. Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension. If we calculate the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount. Any service above that period is not taken into account. Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated. Thus the reasonableness of the provision in the pensionary scheme cannot be consid ered in this line of reasonings. It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not been fixed. It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said paragraph does not use the word 'minimum ' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything con tained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge. This amount is not calculated or has any reference to any period of service. For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service. Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seri ously affected and 887 paragraph 9 also would become inapplicable. Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have ' put in more than five years or more than four years as the case may be to, contend that they are discriminated against because persons who had put in less than that period will get pension at much higher rate. We have, therefore, no doubt that the High Court had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum. We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal. In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court was right in setting aside the earlier rejection for addition of the period. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele vant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period is less than three months and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension. The appeal is accordingly allowed and the order of the High Court is set aside. The respondent will however be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. There will be no orders as to costs. G.N. Appeal al lowed.

Three charges were framed against the appellants A1 to A7. A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder Al, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 IP.C., respectively and the third charge under section 302 read with Section 149, I.P.C. was against A1 to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with/ aruval (bill hook) and A6 armed with vel stick (spear stick), attacked the deceased at about 830 A.M. on January 28, 1977 and caused him multiple injuries, as a result of which he died on the same day. All the accused persons were acquitted by the learned Trial Judge, against which when appeal was filed, the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect of A1 to A3 and were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years, against that, this appeal was filed by the appellants A1 to A3 via Special Leave Petition. Disposing the appeal, by modifying the sentence, this Court, HELD: 1. Thirteen external injuries were found on the dead body of the deceased. Out of these 11 were on lower legs and arms. The intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. Keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, I.P.C. and convicted them under Section 325, I.P.C. read with Section 34, I.P.C. imposing the sentence of imprisonment already undergone by them, and the sentence of Rs. 7,000 each as fine, to be deposited before the Trial Court, within four months, which be paid to the father/mother of deceased. 2 In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years. [3A, 3D F]

: Criminal Appeal No. 20 of 1975. Appeal by Special Leave from the Judgment and order dated 15/16 11 1973 of the Gujarat High Court in Crl. A. No. 22/73. J. L. Nain, M. N. Shroff for the Appellants. H. section Marwah, Amicus Curiae for the Respondents. The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave is directed against a judgment, dated November 15/16, 1973, of the High Court of Gujarat. The material facts are as under: On June 23, 1973, a Police Sub Inspector made a report to the District Superintendent of Police, Rajkot, to the effect that the premises known as Rajkot Yuvak Sahakar Mandal situated at Mochhi 393 Bazar Road, near Krishna Cinema, Rajkot was used as a common gaming house and gambling was going on therein. The Deputy Superintendent of Police, after making an inquiry, was satisfied about the contents of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act (hereinafter referred to as the Act) and sent it to the Police Sub Inspector, Rajkot, for execution in accordance with law. The Sub Inspector then reached the aforesaid B: premises in the early hours of June 24, 1973 at 4 a.m. He found 10 persons, including the respondent herein, in the premises. They had all gathered there for the purpose of gambling, and gambling was actually going on by play of cards, and tokens of various designs, which were used to indicate the different points, were also found there. All the ten persons were arrested in respect of offences under Sections 4 and S of the Act. The instruments of gaming were also seized. On the following morning at 7 a.m., the petitioner and his companions submitted an application to the Police Sub Inspector, who was the first respondent before the High Court, requesting him to enlarge them on bail. The Sub Inspector did not consider their bail applications, nor did he pass any order thereon. At about noon, however, the respondents were produced before the Magistrate, who released them on bail. The Sub Inspector did not consider their bail applications and release them on bail because he was prohibited from doing so by a Circular order issued by Shri P. H. Jethwa, District Superintendent of Police, Rajkot, directing all the Police Sub Inspectors not to release persons arrested in respect of offences under Sections 4 and S of the Act on bail, because in the Form of the warrant prescribed under Section 6 of the Act, it is mentioned that the arrested persons should be produced before the Magistrate. The Circular order further directed that the arrested persons under the Act should be produced before the Magistrate. The Circular further warned that if any Police officer violated these directions, he would expose himself to disciplinary action. This Circular order (exhibit B) was impugned by a writ petition under Article 226 of the Constitution before the High Court. Two main contentions were raised before the High Court. First, that offences under Sections 4 and S of the Act are cognizable and bailable. Consequently, under Section 496 of the Code of Criminal Procedure, 1898, the Police officer arresting the respondents was duty. bound to enlarge them on bail. The impugned Circular, being contrary to the statutory provisions, is illegal and ultra vires. Second, the impugned Circular is violative of Article 14 of the Constitution, inasmuch as it discriminates between persons similarly situated. The second ground was not pressed before the High Court 394 The first contention prevailed with the High Court. In conclusion, it held that the Police officer had the power o} the authority to enlarge the arrested persons on bail. Its reason was as under: "When the legislature empowers an officer to delegate any authority to do certain acts to another it necessarily implies that , the original authority can do such acts itself. Consequently, when the Commissioner of Police and certain other officers mentioned in Section 6 are authorised to issue special warrant for search of the premises where gambling is going on, for the seizure of the articles therein or take into custody and bring before the court such persons who may be found therein, such officers can themselves do such acts. " Referring to Section 4(1) (f) of the Code of Criminal Procedure the High Court observed that the words "a police officer" in that provision which defines a cognizable offence, do not mean "each and every" police officer. It is sufficient if the power to arrest without warrant is limited by the provisions of law to a class of police officers and the offences in such cases fall within the purview of clause (f) of sub section (1) of Section 4 of the Code. Since under Section 6 of the Act, the Police Commissioner and certain other officers, mentioned therein, have the power and authority to arrest persons accused of having committed the offences under Sections 4 and S of the Act with out warrant the said offences are cognizable. Support for this reasoning was sought from a decision of this Court in Union of India vs I.C. Lala, etc. The High Court further held that the provisions of Section 6 merely provide a limited exemption from the provisions of the Code of Criminal Procedure, in so far as they limit the class of Police officers who are competent to investigate the offences and to arrest without a warrant. The mere fact that certain restrictions are placed as to the Police officers who are competent to investigate the offence would not make the offence any the less than cognizable. It, also, referred to several decisions of the Bombay High Court, including the one Emperor vs Raghunath decided by a division Bench consisting of Beaumont, C.J. and Broom field, J., wherein it was held that an offence under Section 4 of the Act is non cognizable. The High Court did not follow this decision because, in its view, it had ignored an earlier decision which covered the point which the court had decided, and the earlier decision was contrary to it. With this reasoning, the High Court came to the conclusion that offences under Sections 4 and 5, being cognizable and 395 bailable, the commissioner of Police and the officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release accused on bail under the provisions of Section 496 of the Code of Criminal Procedure. They derive their power to grant bail from the statute. The impugned order therefore, cannot be sustained because it runs counter to the statutory provisions which authorise the police officers mentioned in Section 6 to grant bail. Nobody has appeared on behalf of the respondent, despite notice, to oppose this appeal. Shri H. section Marwah, however, has been kind enough to assist the Court as amicus Curiae on behalf of the respondents. Since the case was decided by the High Court on the basis of the first contention in favour of the respondent, herein, and the High Court did not go into the constitutional validity of the impugned order, we will confine the discussion to the first point, on the basis of which, the High Court has invalidated the impugned order. We will assume for our purpose that Section 6 of the Act does not offend Article 14 of the Constitution. Section 6 runs as under: "6(1). It shall be lawful for a Police officer (i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub Inspector and either empowered by a general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and (ii) elsewhere not below the rank of Sub Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Additional, Assistant or Deputy Superintendent of Police, and (iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the official Gazette specify in this behalf, not below the rank of a Sub Inspector and empowered by general order in writing issued by the district Magistrate. (a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming house: H (b) to search all parts of the house, room or place which he shall have so entered, when he shall have reason 396 to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to. take into custody and bring before a Magistrate all such persons; (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein: Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the District or Additional or Assistant or Deputy Superintendent of Police concerned is satisfied, upon making such inquiry as he may think necessary, that there are good grounds to suspect the said house, room or place to be used as a common gaming house. " From a plain reading of Section 6(1), it is clear that subject to the conditions of 'the proviso, a Commissioner of Police may empower by a general order or authorise by special warrant a police officer not below the rank of a sub Inspector, to do any of the acts and things enumerated in sub clauses (a) to (d) of that sub section, including the act of arresting a person found gambling or present in a common gaming house. It follows therefrom, by necessary implication, that the Commissioner of Police can personally do any of the aforesaid acts and things which he could authorise any other police officer of the requisite rank to do. The primary repository of the plenary power to do he aforesaid acts and things, constituted under sub clause (i), is the Commissioner of Police. The sub clause only enables him to employ his subordinate police officer(s), not below the authorised rank of a Sub Inspector to execute his general order or special warrant to arrest for offences under Sections 4 and 5 of the Act. It will be noted further that even under sub clause (iii), in an area notified by the Government. any police officer not below the rank of a Sub Inspector empowered by the District Magistrate under a general order in writing can arrest a person found gambling or present in a common gaming house, without a warrant from a Magistrate. In short, Section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer. It is in the light of the above analysis of Section 6(1) that we have to determine whether the offences under Sections 4 and 5 of the Act are recognizable offences '. Section 4(1)(f) of that Code of Criminal Procedure, 1898, defines "cognizable offence" to mean an offence for, and 'cognizable case ' to mean a case "in which a police officer, within 397 or without the Presidency towns may, in accordance with the Second Schedule or under other law for the time being in force, arrest without warrant". There was a divergence of judicial opinion in regard to the connotation of the words "a police officer" used in the above definition. One line of decisions, led by Deodhar Singh case, took the view that 1 these words in Section 4(1) do not necessarily mean "any and every" police officer. It is sufficient to bring an offence within the definition of a 'cognizable offence ' if the power to arrest without a warrant is vested under the law in a police officer of a particular class only. The ratio of Deodhar Singh 's case was followed by the Bombay High Court in Emperor vs Ismail and Emperor vs Abasbhai Abdul Hussain by the Nagpur Court in Nagarmal Jankiram, and by the Delhi High Court in Delhi Administration vs Parkash Chand & Ors. A contrary view was taken by the Assam High Court in G. K. Apu vs Union of India; by the Allahabad High Court in State of U.P. vs Lal Bahadur & Ors.; by the Madhya Bharat High Court in Union of India vs Mahesh Chandra; and in some other decisions. This conflict appears to have been set at rest by the decision of this Court in 1. C. Lala 's case (ibid) which has expressly overruled the view taken by the Assam and Madhya Bharat High Courts. We will notice Lala 's case, later. It will suffice to say here that the view which has received the imprimatur of this Court, is that the expression "police officer" in Section 4(1)(f) of the Code does not necessarily mean "any and every" police officer, and an offence will still be a "cognizable offence" within this definition even if the power to arrest without warrant, for that offence is given by the statute to police officers of a particular rank or class. In Queen Empress vs Deodhar Singh, under the Bengal Public Gaming Act II of 1867, the District Superintendent of Police (or the District Magistrate) was competent to arrest or by warrant to direct the arrest of persons found in a common gaming house. The Question 398 was whether the offence under Section 4(1)(f) of the Bengal Act was cognizable. This question turned on an interpretation of the expression "police officer" in the definition of 'cognizable offence ', and was answered in the affirmative, thus.: "Now, under the Gambling Act, it is not every Police officer who can arrest without a warrant. It is only the District Superintendent of Police who can arrest or by warrant direct the arrest of persons gambling in a house. The district Superintendent being a Police officer who may, under a law for the time being in force, viz., the Gambling Act, arrest without warrant. We think that the requirements of clause (1) (f) of the above Sections are satisfied, and that the offence in question is, therefore, a 'cognizable offence '. We cannot accept the contention that the words in that clause, 'a Police officer ' mean 'any and every ' Police officer. It is sufficient if the Legislature has limited the power of arrest to any particular class of Police officers. " If we may say so with respect, this is a correct exposition of the law on the point. The ratio of Deodhar Singh 's case was followed by a Division Bench of the Bombay High Court (Marten and Madgavkar, JJ.) in Emperor vs Abasbhai Abdul Hussain (ibid). The impugned judgment before us is also based on this decision. These very provisions of the Bombay Prevention of Gambling Act came up for interpretation in re. Naganmal Jankiram (ibid), and the same view was taken by Pollock J. In Abasbhai 's case (ibid), a Sub Inspector got a warrant issued under Section 6 of the Bombay Prevention of Gambling Act, which authorised him to search certain premises. In execution of that warrant the Sub Inspector raided a house and arrested three persons who were found therein. The case was tried by the Magistrate concerned as a cognizable one. At the trial at the stage of arguments, it was contended on behalf of the accused that offences under Sections 4 and 5 were non cognizable, and since the procedure of warrant case had been followed by the Magistrate, the trial was illegal. The trial court accepted the argument and acquitted the accused. In appeal before the High Court, it was agitated that the offence was a cognizable one. The High Court reasoned and we think rightly that since under Section 6 of the Act the Commissioner of Police has power to issue special warrants of search and also to arrest, he is competent to do personally, what he may authorise others to do by special warrant. It followed the dictum of Deodhar Singh 's case in regard to the interpretation of the words "a police officer" in the definition of "cognizable offence" given in the Code of Criminal Procedure. On 399 these premises, the High Court held that offence s under Sections 4 and 5 are cognizable. In Emperor vs Ismail (ibid), a Division Bench of the Bombay High Court, reaffirmed the dictum of Abasbhai 's case, that an offence punishable under Section 4 of the Act, is cognizable. In Delhi Administration vs Parkash Chand & Ors., H. R. Khanna, J., following the dictum of the Calcutta High Court in Deodhar Singh 's case, and of Bombay High Court in Abasbhai 's case, held that offences under Sections 3 and 4 of Delhi Gambling Act are 'cognizable offences ' as Section S of the Delhi Act gives the Superintendent of Police power to arrest or authorise any officer of police, not below the rank of Sub Inspector, to arrest without a warrant. It is argued on behalf of the appellant State that the ratio of the aforesaid decisions in Deodhar Singh 's case and Parkash Chand 's case is not applicable to offences under the Bombay Prevention of Gambling Act, because the Bengal Act and the Delhi Act expressly empower the Superintendent of Police either to arrest himself or direct arrest by another police officer of requisite rank, whereas in Section 6(1) of the Bombay Prevention of Gambling Act there are no express words giving an option, to the Commissioner of Police to effect arrest, personally. We are unable to accept this argument. The difference pointed out, is a distinction without a difference. What was explicit in the Bengal Gambling Act and the Delhi Gambling Act, is implicit in Section 6(1) of the Bombay Prevention of Gambling Act. It will now be appropriate to notice this Court 's decision in Union of India vs I. C. Lala. In that case, two army officers and one business man were charged with the conspiracy of the offences punishable under Sections 120B and 420 of the Indian Penal Code, read with Section S(2) of the Prevention of Corruption Act. The officer who investigated these offences was an Inspector of the Delhi Police Establishment. Under Section SA of the Prevention of Corruption Act, before its amendment in 1974, no officer below the rank of Deputy Superintendent of Police could investigate an offence punishable under Sections 161, 165 and 165A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, without the order of the Presidency Magistrate or a Magistrate of the First Class. The question before the Court was. whether sanction under Section 196A of the Code was necessary. The answer to this question turned upon whether an offence under Section 5(2) of the Prevention of Corruption Act was non cognizable or cognizable. The 400 High Court held that an offence under Section 5(2) of that Act was non cognizable because it was not an offence for which any police officer could arrest without a warrant. The same argument which was canvassed before the High Court was repeated before this Court. And it was contended that the words 'a police officer ' in Section 4(1) (f) of the Code mean 'any ' police officer. This argument was repelled by this Court and it was held that such an approach could not be a criterion for deciding whether the offence is cognizable or non cognizable. It was observed: "If we pursue the same line of argument and look at the definition of non cognizable offence in Section 4(1) (n) which defines non cognizable offence as an offence for which a police officer, within or without a Presidency town, may not arrest with. out warrant, it might mean that as these are cases where a police officer of the rank of Dy. Superintendent and above can arrest without warrant these are not non cognizable offences either How can there be a case which is neither cognizable nor non cognizable? It was sought to be argued that these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents. We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances. We do not consider that this is a reasonable interpretation to place. " Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the principle enunciated by this Court in Lala 's case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and S of the Bombay Prevention of Gambling Act are cognizable. Such offences are admittedly bailable. It follows as a necessary corollary therefrom, that the commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offences is under a legal obligation to release the accused on bail under the provisions of Section 496 of the Code. The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting, from the statute and consequently, no executive instructions or administrative rules can abridge, or run counter to the statutory provisions of the Code. Since the impugned order or 401 executive instructions are contrary to or inconsistent with the provisions of the Code and on a true construction, there is nothing in Section 6 or any other provision of the Act which takes away the right and power conferred by The Code on the police officer to grant bail to the person arrested by him for offences under Sections 4 and 5 of the Act, the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court. In the result, the appeal fails and is dismissed. Appeal dismissed.

The respondent Piara Singh was apprehended in September 1958 by the Indian Police while crossing the Indo Pakistan border into Pakistan. A sum of Rs. 65,500/ in currency notes was recovered from his person. On interrogation he stated that he was taking the currency notes to Pakistan to enable him to purchase gold in that country with a view to smuggling it into India. The Collector of Central Excise and Land Customs ordered the confiscation of the currency notes. In the proceedings initiated by the Income Tax Officer, he found that Rs. 60,500/ constituted the income of the assessee from undisclosed sources. An appeal by the assessee was dismissed by the Appellate Assistant Commissioner. In second appeal before the Income Tax Appellate Tribunal, the assessee represented that if he was regarded as engaged in the business of smuggling gold he was entitled to a deduction under section 10(1) of the Income Tax Act, 1922 of the entire sum of Rs. 65,500/ as a loss incurred in the business on the confiscation of the currency notes. The Tribunal upheld the claim to deduction. It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India. The High Court on a reference at the instance of the Revenue answered the reference against the Revenue. Hence the appeal. Allowing the appeal, the Court. ^ HELD: 1. The assessee is entitled to the deduction of Rs. 65,500/ under section 10(1) of the Income Tax Act, 1922. [1124 C, 1126 B] 2. The assessee was carrying on the business of smuggling and, therefore, was liable to income tax on income from that business. The currency notes carried by the assessee across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity possible detection by the Customs authorities constitutes a normal feature integrated into all that is implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency 1123 notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this Court in Badridas Daga vs Commissioner of Income Tax the deduction must be allowed. [1124 D E] Badridas Daga vs Commissioner of Income Tax, ; Commissioner of Income Tax, Gujarat vs section C. Kothari ; applied. Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income Tax, Bombay City II, , Sari Hinduji Khushalji 7 Co. vs Commr. of Income Tax, A.P. ; J. section Parkar vs V. B. Palekar and Ors. ; distinguished and explained.

nder article 132(1) of the Constitution from a judgment and order dated 12th April, 1950, of the High Court of Judicature at Bombay (Chagla C.J., Bavdekar and Shah JJ.): Case No. I X of 1950. A.S.R. Chari, for the appellant. M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent. Jan. 22. The judgment of Kania C.J., Patanjali Sastri J. Das J. and Chandrasekhara Aiyar J. was delivered by Das J. Mahajan J. and Fazl Ali J. delivered separate judgments. Mukherjea J. agreed with Fazl Ali J. DAs J. At all material times the petitioner, who is the appellant before us, was the Secretary of People 's Publish ing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190 B, Khetwadi Main Road in Bombay. In September, 1949, a pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company. Learned counsel for the peti tioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registra tion of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied 230 with. The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931, and that as it had been published without the authori ty required by section 15 (1) of that Act, the petitioner had committed an offence punishable under section 18 (1) of the same Act. A prosecution under that Act was accordingly started against the petitioner in the Court of the Chief Presidency Magistrate, Bombay, and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2 (6) of the Indian Press (Emergency Powers) Act, 1931, and sections 15 and 18 thereof were ultra vires and void in view of article 19(1)(a) read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections 15 and 18 read with section 2 (6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19 (1) (a)and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the Chief Presidency Magis trate on March 23, 1950, framed a charge against the peti tioner under section 18 of the Press (Emergency Powers) Act, 1931. The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay High Court consisting of Chagla C.J. and Bavdekar and Shah JJ. Two questions were raised before the Bench, namely (1) Whether sections 15 (1) and 18 (1) read with the definitions contained in sections 2 (6) and 2 (.10) of the Indian Press (Emergency Powers) Act, 1931, were 231 inconsistent with article 19 (1) (a) read with clause (2) of that article ? and (2) Assuming that they were inconsistent, whether the proceedings commenced under section 18 (1) of that Act before the commencement of the Constitution could neverthe less be proceeded with ? The High Court considered it unnecessary to deal with or decide the first question and disposed of the application only on the second question. The High Court took the view that the word "void" was used in article 13 (1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commence ment of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19 (1)(a)and as such became void under article 13 (1) of the Constitution after January 26, 1950. The High Court accordingly answered the second question in the af firmative and dismissed the petitioner 's application. The petitioner has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132 (1) of the Constitution. Learned counsel appearing in support of this appeal urged that the Indian Press (Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien Government with a view to stifle the liberty of the Indian subjects and particularly of the Indian Press; that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13 (1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all 232 laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed. It was, therefore, against the spirit of the Constitution, argued the learned counsel, that a free citizen of India should still continue to be persecuted under such a retro grade law which, being inconsistent with the fundamental rights, must be declared to be void. Learned counsel urged that it was not necessary for him to contend that such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended that on and from January 26, 1950, when the Constitution came into force such inconsistent laws which became void could not be looked at for any purpose and far less could they be utilised for the purpose of framing a charge or punishing a free citizen. As the void law cannot be utilised any long er, the pending prosecutions, according to learned counsel, must fall to the ground. To permit pending proceedings under a law which, after the commencement of the Constitu tion had become void, to proceed further, after the Consti tution has taken effect, is to prolong the efficacy of the law notwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution. An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the lan guage of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372 (2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract section 6 of the General Clauses Act. In such a situation all prosecutions under 233 the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabili ties and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have al ready been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitu tion. Article 13 (1) with which we are concerned for the pur poses of this application is in these terms: "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. " It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part II1 shall, to the extent of such inconsistency, be void. Every statute is prima facie pro spective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13 (1) which may be read as indicating an 234 intention to give it retrospective operation. On the con trary, the language clearly points the other way. The provi sions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is "Fundamental Rights". These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly pro spective in its operation. After this first point is noted, it should further be seen that article 13 (1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitu tion no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsist ent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. Learned counsel for the appellant has drawn our attention to articles 249 (3), 250, 357, 358 235 and 369 where express provision has been made for saving things done under the laws which expired. It will be no ticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceed ings. If therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above, article 13 (1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13 (1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a. subsequent statute. As already explained, article 13 (1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contra vention of the provisions of any law which, after the Con stitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is No. fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitu tion came into force. So far as the past acts 31 236 are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on dif ferent grounds. In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed. FAZL ALI J. I regret that I cannot agree with the view which the majority of my colleagues are inclined to take in this case. The facts of the case are simple and will bring out the point to be decided. On the 9th December, 1949, the appel lant was arrested and a prosecution was started against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the Court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled "Railway Mazdoorun Ke Khilaf Nai Sazish. " The prosecution case was that the pamphlet was a news sheet within the meaning of section 2(6) of the Act and that since it had been published without the authority required by section 1.5(1) of the Act, the appellant had committed an offence punishable under section 18(1) of the Act. While the prosecution was pending, the Constitution of India came into force on the 26th January, 1950, and thereafter the appel lant raised the contention that sections 2(6), 15 and 18 of the Act were void, being inconsistent with article 19(1) (a) of the Constitution and therefore the case against him could not proceed. Having raised this contention, the appellant filed a petition in the High Court at Bombay under article 228 of the Constitution asking the High Court to send for the record of the case and declare that sections 15 and 18of the Indian Press (Emergency Powers) Act read with section 2(6) and (10) thereof were void and inoperative and the petitioner should be ordered to be acquitted. The petition was heard by a Full Bench of the Bombay High Court, and the learned Judges constituting the Bench, in 237 deciding the point raised, assumed that the provisions of the Act impugned by the appellant were inconsistent with the fundamental right guaranteed by article 19(1)(a) of the Constitution of India, and held that article 13(1) had virtually the effect of repealing such provisions of existing laws as were inconsistent with any of the fundamental rights and that consequently under section 6 of the General Clauses Act, which is made applicable for the interpretation of the Constitution by article 367, pending proceedings were not affected. The appellant 's petition to the High Court having been dismissed, he preferred this appeal in the Supreme Court. One of the points discussed elaborately by the learned counsel appearing for the parties in the course of their arguments was as to what was the effect upon pending pro ceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows : "As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (4th Ed., pp. 347 348). This statement of law by Craies was referred to with approval and adopted by the Federal Court in J.K. Gas Plant Manufacturing Co., (Rampur) Ltd., and Others vs King Emper or. (1) As to the effect of the repeal of an Act, the fol lowing passage from Craies book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 : "When an Act of Parliament is repealed," said Lord Tenterden in Surtees vs Ellison(2) "it must be at 166. (2) 238 considered (except as to transactions past and closed) as if it had never existed. That is the general rule. " Tindal C.J. states the exception more widely. He says (in Kay vs Goodwin)(1): ,, The effect of repealing a statute is to obliterate it as completely from the records of the Parlia ment as if it had never been passed;and it must be consid ered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350). Again, Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows: ' 'A repeal will generally, therefore, divest all incho ate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp. 599 600). In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds: "See Cleveland, etc., R. Co. vs Mumford (Ind.)(2) where the repeal of a statute during the trial prevented a judg ment from being rendered. Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limita tion or by a repeal, at any time before judgment, no judg ment can be given. Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed." (1) ; (2) 239 The author then proceeds to quote the following passage from Wall vs Chesapeake & Ohio Ry. , Company (1): "It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as completely as if it bad never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and con cluded while it was an existing law. Pending judicial pro ceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordi nate tribunal from whence the appeal was taken, if it ap pears that pending the appeal a statute which was necessary to support the judgment of the lower court has been with drawn by an absolute repeal." (P. 601). It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or inves tigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38 (2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the con trary intention appears, does not affect the previous opera tion of the repealed enactment or anything duly done or suffered under it and any investigations, legal proceedings or (1) 125 N.E.20. 240 remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the ;repealed Act, as if the repealing Act had not been passed. Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met: "Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute." In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in section 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38 (2)of the Interpre tation Act of England. The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses Act, the principle already enunciated will continue to operate. The learned AttorneyGeneral had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because sec tion 6 of the General Clauses Act and section 38 (2) of the Interpretation Act have no application except where an Act is repealed. It should be remembered 241 that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason of having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule pecul iar only to the common law of England. It is the law which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason. I shall now proceed to consider what would be the cor rect legal position, when a provision of an existing law is held to be void under article 13 (1) of the Constitution. From the earlier proceedings before the Constituent Assem bly, it appears that in the original draft of the Constitu tion, the words "shall stand abrogated" were used instead of "shall be void," in article 13 (1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emerged in the form in which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void. " If the words "stand abrogated" had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place. The meaning of the word "void" is stated in Black 's Law Dictionary (3rd Edn.) to be as fol lows: "null and void; ineffectual; nugatory; having no legal force or binding effect;unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid. " A reference to the Constitution will show that the framers thereof have used the word "repeal" wherever neces sary (see articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see 242 articles 245, 255 and 276), "cease to have effect" (see articles 358 and 372), ' 'shall be inoperative", etc. They have used the word "void" only in two articles, these being article 13 (1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250,357, 358 and 369. The thoroughness and precision which the framers of the Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13 (1) a saving provision of the kind which we are asked to read into it. Nor can I be persuaded to hold that treating an Act as void under article 13 (1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opin ion, the strong sense in which the word "void" is normally used and the context in which it has been used are not to be completely ignored. Evidently, the framers of the Constitu tion did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to cer tain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in arti cle 13 (1), it is difficult for me to understand. There can be no doubt that article 13 (1)will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which 243 has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. vs Mawgan (Inhabitants)(1) a presentment as to the non repair of a highway had been made under 13 Geo. 3, c. 78, section 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said: "If the question had related merely to the present ment, that no doubt is complete. But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding." And Littledale J. added: "/do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case. It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions al ready recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on these lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened. In the course of the arguments, a doubt was also raised as to what would be 'the effect in the case of an appeal pending when the Constitution came into force, from a con viction already recorded before the 26th January, 1950. The law applicable to such a situation is well known and has been correctly summed up by Crawford in these words: "Pending judicial proceedings based upon a statute cannot proceed after its repeal. The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was (1) ; 244 correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the. appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an abso lute repeal. " I think I should at this stage deal briefly with two points which were raised in the course of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13 (1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the fol lowing form. The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13 (1) is to be construed prospectively, and not retrospectively, every act constituting an offence under the old law remains an offence and can be punished even after the 26th January. It seems to me that the same argument could be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has expired. But such an argument has never succeeded. The real question is wheth er a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act. The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has be come void, i.e., which has become so ineffectual that it cannot be cured. The second argument which also has failed to impress me is that if section 6 of the General Clauses Act does not in terms apply, the principle underlying that section should be applied. The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite situation, and, though it was open to it to make the section more comprehensive and general, it has not done so. It is well known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts 245 which have expired or Acts which have been declared to be void, and, though such situations must have been well known to the Legislature, they have not been provided for. In these circumstances,I do not see how the very clear and definite provision can be enlarged in the manner in which it is attempted to be enlarged. Besides, I have not come across any case in which the principle underlying section 38 (2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied. In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence. If we find that the law which made the act an offence has become completely ineffec tual and nugatory, then neither can a charge be framed nor can the accused person be convicted. In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused. MAHAJAN J. The appellant is the secretary of the Peo ple 's Publishing House Ltd., Bombay. In September, 1949, he published a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai Sazish. "On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18 (1) of the Indian Press (Emergency Powers) Act (XXIII of 1931)in the Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March, 1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had no effect whatsoever and no prosecution launched under these sections could be proceeded with after the coming into force of the Constitution. The High Court refused this 246 application and held that the proceedings instituted against the appellant before the commencement of the Constitution could not be affected by the provisions of the Constitution that came into force on the 26th January, 1950. Dissatis fied with this decision, the appellant has preferred the present appeal to this court. The sole point to decide in the appeal is whether pro ceedings instituted under section 18 (1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the commence ment of the Constitution of India are affected by its provi sions. The High Court has answered this question in the negative and, in my opinion, rightly. I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particular laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is not arguable and was not argued that Part III of the Constitu tion has any retrospective operation. The appellant was not possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section 18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein. It was, however, contended by Mr. Chari, the learned counsel for the appellant, that the effect of the language employed in article 13 (1)of the Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Stat utes ", p. 404, which is to the following effect : 247 "Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force. " This rule seems to be based on a statement of Tindal C.J. in Kay vs Goodwin(1). The learned Chief Justice made the following observations : "I take the effect of repealing a statute to be, to obliterate it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing laW." This was the rule of the English common law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions could not be proceeded with after the repeal of the law under which they were started. This rule was however changed by the Inter pretation Act of 1889, section 38. Therein it was enacted that unless the contrary intention appears, no repeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. A similar provision exists in India in section 6 of the Gener al Clauses Act of 1868 and 1897. The High Court held that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the construction of these provisions and that being so, the coming into force of the Constitution did (1) ; 180 E.R. 1403; 248 not in any way affect the continuance of the proceedings that had been commenced against the appellant under the law that was in force at the time of the publication of the pamphlet. Mr. Chari contended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13 (1) of the Constitution inasmuch as the provisions of this article were not analogous to repeal and did not amount to a repeal of the existing law. He contended that a repeal of the law could only be by the legislature but that under article 13 power had been given to the court to declare any law incon sistent with the Constitution to be void; in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the coming into force of the Constitution and that nothing could be done under that statute with effect from the 26th January, 1950, and there fore the court could not frame a charge under the law that was declared void, or pass a judgment of conviction against a person under a law that had been declared void. Mr. Chari went to the length of saying that a statute which was incon sistent with the Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever. He emphasised his contention by stressing the fact that freedoms guaranteed by Part III of the Constitution could not be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms. It was said that some of the laws which the Constitution in tended to be declared void by the court because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this country under its domination and that to continue prosecutions under these laws after the coming into force of the Constitution would be wholly contrary and 249 repugnant not only to the letter of the Constitution but also to its spirit. It was conceded that transactions finally closed under such laws could not be reopened but that prosecutions and actions which were still continuing should be stopped and further action concerning them would become illegal and would be contrary to the freedoms guaran teed by the Constitution. Reference was made to articles 249, 250, 357, 358, and 369 to show that the scheme of the Constitution was that wherever it intended that the proceed ings commenced under existing laws which became inoperative on the 26th January, 1950. were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and there fore it must be presumed that the Constituent Assembly did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950. Article 13 (1) of the Constitution is in these terms : "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. ' ' The freedom guaranteed to the citizen which has applica tion to the case of the appellant is in article 19 (1) (a) and this article is in these terms : "All citizens shall have the right to freedom of speech and expression. " It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression. In September, 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13 (1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed 250 of a fundamental right before he can ask the court to de clare a law which is inconsistent with it void ;but if a citizen is not possessed of the right, he cannot claim this relief. The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes. Accord ing to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms applicable to such a case, whether they are to be found in the rules of the common law of England or whether they are contained in the Interpretation Act or the General Clauses Act. Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time. None of those however have any application to the construction of statutes framed in languages like the one contained in article 13 (1) of the Constitution. Besides the rule of construction which applies to repealed statutes or to tempo rary statutes our attention was not drawn to any other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpun ishable on its termination. Both on considerations of con venience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished. Persons who during the contin uance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute. When in the case of repeal of a statute, which according to Tindal C.J. obliterates it completely from the records of Parlia ment as if it had never been passed, the common law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have 251 no effect whatsoever after a certain date only. The expres sion "void" has no larger effect on the statute so declared than the word "repeal". The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act, 1889, or in the , while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws. There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the Interpretation Act or the . To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective opera tion and that result is repugnant to the clear phraseology employed in the various articles in of the Con stitution. The contention of the learned Attorney General that the phraseology employed in article 13 (1) of the Constitution clearly indicates that there was no intention to give any retrospective operation to the provisions of Part III of the Constitution and that the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th January, 1950, has, in my opinion, force. It seems clear that an existing statute in spite of a declaration by court that it is void remains in force till the 25th Janu ary, 1950, and continues to remain on the statute book even after the 26th January, 1950, except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the Constitution. The effect of article 13 (1)is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are not affected 33 252 by Part III of the Constitution. The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is not very helpful inasmuch as where a certain provi sion has a retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute; but where the provision is clearly not intended to be retrospec tive, then the necessity of saving clause does not arise. The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of construction of statutes. Mr. Chari 's argument that it could not have been intend ed by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and after India had become a democratic republic to a cer tain extent seems to me to be plausible; but on further thought I have come to the conclusion that this argument appeals more to the heart than to the head and is not based on any sound principle of construction of statutes. Under the accepted canons of construction of statutes, if a law has no retrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution not being retrospective in its operation could not therefore in any way affect prosecutions started for offences that were complete under the law in force at the time they were committed. The cure for such an incon gruous state of affairs and the relief for such situation lies with the Government and the legislature and not with the courts. If a case of sedition against an alien govern ment is continued after the coming into force of the Consti tution, the court cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a construction on the Constitution 253 which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic. If punishment for contravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January, 1950, it will be highly unreasonable not to give relief and to let punish ments continue in case of persons, the sentence against whom have already been passed under laws which were solely enact ed to maintain the alien rule. Both cases, in my opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the Repub lic. If Mr. Chari 's argument that on the commencement of the Constitution on 26th January, 1950, all proceedings started under laws that became repugnant and inconsistent with the Constitution were to be stopped was accepted, it would lead to very strange results, and Mr. Chari had to concede that it would be so. Suppose a person was convicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his conviction, then, according to the conten tion of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter. The result would be that the Court would not be able to hear an appeal and to give relief to the accused if he had been erroneously convicted. If a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be enti tled to continue any proceeding for the benefit of the accused under cover of such a law. Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word "void" and it was said that this word in its widest 254 sense meant that the law declared void was void ab initio, i.e, from the very reception of the law it was bad. H that meaning was given to this word, then it would mean that all laws existing on the 26th January, 1950, and which were declared void by article 13 (1) because of their being repugnant to the Constitution were bad when they were passed by the legislature, though at the same time the subject enjoyed no fundamental rights. It was sought to give to this word "void" the same wide meaning as was given to the word "repeal" by Tindal C.J. in the case above mentioned. With every respect to the great Judges who administered the common law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua "repeal" was of an artificial nature. The dictum of the learned Chief Justice that a repeal of a statute obliterates it completely from the records of Par liament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by courts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting one 's eyes to the actual ities of the situation. It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever. The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of common law evolved by the English Judges was not in conso nance with reason and justice, a legislative practice was evolved under which each repealing statute contained a saving clause under 255 which past transactions were not allowed to be affected by the repeal. Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act, 1889. In India in the year 1868, section 6 of the enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or incho ate cannot be affected by the repeal of an earlier statute or by the coming into effect of a new one. In my opinion, the rule contained in the and in the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the as the language of article 13 itself furnishes a solution to the problem. Reference was also made to the rule of construction applicable to temporary statutes. In the case of such statutes, the rule of English law is that after the expiry of the life of the statute no action can be taken under the expired statute unless an intention can be gathered from its provisions to the contrary, but transactions already com pleted during the period that these statutes had the force of law are not in any way affected. That rule seems to be quite logical and is consonant with reason and justice. When the life of a statute is limited and it dies a natural death, then no question either of its retrospective or of prospective nature arises. If the intention of the statute was that anything done under it has to continue, then it will be allowed to continue; otherwise nothing done under it will be continued after its natural death. Any rule applica ble to construction of such a statute has no application to the interpretation of the Constitution of India and the reference to this rule, in my opinion, is not relevant for the decision of this 256 Reference was also made to the rule of construction laid down by the American courts in respect of statutes de clared void because of their being repugnant to the Consti tution of the United States of America. It is obvious that if a statute has been enacted and is repugnant to the Con stitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government of India Act, 1935. Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convic tions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this court by the Constitution. The only rule of construction applicable to the inter pretation of article 13 of the Constitution is the one that concerns the determination of the question whether a statute is intended to have any retrospective operations. If the well known canons of construction on this point are applied, then it has to be held that article 13 was not intended to have any retrospective effect whatever; on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the commencement of the Constitution and even after its commencement except to the extent of their repugnancy to any provisions of Part III of the Constitution. On this construction of article 13 it cannot affect any past transactions, whether closed or inchoate. Reference in this connection may be made to the provisions of 257 article 372(2) of the Constitution. Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitu tion by a process of amendment, repeal or adaptation. The President could have repealed the Press (Emergency Powers) Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the would have been immediately attract ed to that situation and the pending prosecution of the appellant would have to be continued in view of those provi sions. If in that situation the Constitution contemplates the continuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13(1) of the Constitu tion, than the one that is in accord with that situation. By the construction that I have placed on this article that incongruous result is avoided. In view of the decision above arrived at it seems unnec essary to pronounce on the alternative argument of the learned Attorney General to the effect that the expression ' 'void ', used in article 13 of the Constitution is synonymous with the word "repeal" and that it was an apt word used in the context to indicate the same intention. It was said that the word "repeal" was not used in the article but instead the expression "void" was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution. It was also urged that by article 13 (1)the Constitution in express terms repealed all laws inconsistent with its provi sions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of Part III. The declaration that these laws were void or repealed was by the force of the provisions of article 13 itself and did not result from the decision of the courts. It is also unnecessary to examine the further argument of the learned 258 Attorney General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section 6 of the General Clauses Act,1868, and that though in express terms that statute may not be applicable to the construction of article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by rea son of their being repugnant to the Constitution. For the reasons given above I see no force in this appeal and I would accordingly dismiss it. MUKHERJEA J. I am in entire agreement with the view taken by my learned brother Fazl Ali J. in his judgment and I concur both in his reasons and his conclusion. Appeal dismissed.

The first and the second respondents purchased a quantity of foodgrains from certain cultivators who had imported them into the municipal area of the appellant Committee and, at the time of importation, had paid octroi duty on those foodgrains. The first and the second respondents exported the identical goods out of the municipal areas and there upon applied for refund of octroi duty paid on the foodgrains. The appellant Committee refused to pay the refund mainly on the ground that the respondents had failed to produce the: receipts of duty paid on the importation of the foodgrains. An appeal to the Additional Deputy Commissioner as well as the revision application to the Board of Revenue were both dismissed, but a writ petition against these orders was allowed by the High Court which held that an, exporter was entitled under r. 27 to the refund of 7/8th of the, duty paid on the goods exported. Subsequently a Division Bench, in appeal, remanded ' the case to the Board for dealing with certain other contentions raised by the appellant and after considering these, the Board get aside, the orders of the Committee and the Deputy Commissioner and directed payment of the refund. The appellant Committee then filed a writ petition challenging the ,order of the Board but this was dismissed, the High Court holding, inter alia, that the Rules did not require a claimant who had exported dutiable goods to produce receipts of payment of duty and that the amount of refund is to be determined from the quantity of foodgrains exported or from their value. The Committee appealed by special leave to this Court. It was urged on its behalf that a person claiming refund would not be entitled to it unless he had followed the procedure prescribed by rr. 27 to 43, and that this had not been done in the present case. HELD : Dismissing the appeal Though the rules lay down a procedure which an appellant seeking refund has to follow, they do not provide at the game time that an applicant for refund who has failed do follow the procedure laid down in rr. 35 to 39 would be disentitled to claim the refund. In the absence of such a provision, coupled with the categorical language of r. 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of the first ' and the second respondents to such a refund. [171 E G]

tition Nos. 116, 186 189/77, 3935 63/78 3922 24/78, 1221/77, 3821 27/78, 3828 31/78, 44 50/77, 4237/78,4400/78, 92 97/77. (Under Article 32 of the Constitution) F. section Nariman, R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. No. 116/77. R. M. Poddar for Respondent No. 1 in W.P. No. 116/77. 678 Lal Narain Sinha Attorney Genl., P. K. Pillai and T. P. Soundara Rajan, for Respondents 2 3 in W.P. No. 116/77. N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for the Respondent. R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. Nos. 186 189/77. Lal Narain Sinha Att Genl. and R. M. Poddar, for Respondent No. 1 in W.P. Nos. 186 189/77. P.K. Pillai and T. P. Soundra Rajan, for Respondents 2 3 in W.P. Nos. 186 1 89/77. N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for the State. F. section Nariman, R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioners in W.P. Nos. 3935 63/78. N. M. Abdul Khader, M. A. Feroze and K. M. K. Nair, for Respondent No. 1 in W.P. Nos. 3935 63/78. A. section Nambiar and P. Parameswaran, for Respondents 2 3 in W.P. Nos. 3935 63/78. P. Govindan Nair and K. Sukumaran, for the Petitioners in W.P. Nos. 3922 24/78. K. M. K. Nair, for the Respondent in W.P. Nos. 3922 24/78. R. N. Banerjee, J. B. Dadachanji and K. J. John, for the Petitioner in W.P. No. 1221/77. K. M. K. Nair for Respondent No. 1. A. section Nambiyar for Respondent No. 2. Miss A. Subhashini for Respondent No.5. P. Govindan Nair and K. Sukumaran for the Petitioners in W.P. Nos.3821 27/78. K. M. K. Nair for Respondent No. 1 in W.P. Nos. 3821 27/78. A. section Nambiar and P. Parameswaran for Respondents 2 3 in W.P. Nos. 3821 27/78. P. Govindan Nair and K. Sukumaran for the Petitioner in W. P. Nos. 3828 31/78. K. M. K. Nair for Respondent No. 1 in W.P. Nos. 3828 31/78. 679 A. section Nambiar and P. Parameswaran for Respondent No. 2 in W.P. Nos. 3828 31/78. R. N. Banerjee, J. B. Dadachanji and K. J. John for the Petitioners in W.P. Nos. 44 50/77. Miss A. Subhashini for Respondent No. 1 in W.P. Nos. 44 50/77. K.M.K. Nair for Respondent No. 2 in W.P. Nos. 44 50/77. P. Govindan Nair, Mrs. Baby Krishnan and Mrs. V. D. Khanna, for the Petitioners in W.P. Nos. 4237/78. K. M. K. Nair for the Respondent in W.P. No. 4237/78. D. Govindan Nair and Mrs. Baby Krishnan for the Petitioners in W.P. No. 4400/78. K. M. K. Nair for the Respondent in W.P. No. 4400/78. R. N. Banerjee, J. B. Dadachanji and K. J. John for the Petitioners in W.P. Nos. 92 97/77. Miss A. Subhashini for Respondent No. 1 in W.P. Nos. 92 97/77. K. M. K. Nair for Respondent No. 2 in W.P. Nos. 92 97/77. The Judgment of the Court was delivered by VENKATARAMIAH, J. The common question which arise for consideration in the above writ petitions under Article 32 of the Constitution of India relates to the validity of the declaration made by the State Government of Kerala on March 20, 1976 declaring that raw cashewnut was an essential article, in exercise of the power under clause (a) of section 2 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961 (Act 3 of 1962) (hereinafter referred to as 'the Kerala Act ') and the Kerala Raw Cashewnuts (Procurement and Distribution) Order, 1977 (hereinafter referred to as 'the Order ') made by the State Government of Kerala in exercise of the powers conferred by section 3 of the Kerala Act regulating the procurement and distribution of raw cashewnuts grown in the State of Kerala. The petitioners are persons engaged in the cashewnut processing industry in the State of Kerala. Since the impugned declaration and the Order seriously interfered with the right of the petitioners to purchase sufficient quantities of raw cashewnuts for processing in their factories and imposed several other restrictions on them, they have filed the above petitions. Although the validity of several other orders was also questioned in the present petitions, the petitioners confined their challenge only to the impugned declaration and the 680 Order in the course of the arguments since according to them it was not necessary to urge their contentions as against those orders. The recital in the preamble to the Order states that it was being made in order to ensure the maintenance of supplies of raw cashewnuts which was considered to be essential for the continued employment of a large number of workmen in the State of Kerala and for their equitable distribution and availability at fair prices. It is further recited that the Order was being made as the State Government felt a doubt about the question whether the Kerala Raw Cashewnuts (Marketing and Distribution) Order 1976 issued under the Defence and Internal Security of India Rules, 1971, for the very same purpose would continue to remain in force. The main provisions of the Order broadly related to the prohibition of sale of raw cashewnuts to any person other than an agent authorised to purchase by clause 3 thereof, appointment of Co operative Societies as subagents, imposition of restrictions on processing or conversion of raw cashewnuts and their distribution amongst the occupiers of cashewnut processing factories, appointment and powers of Cashew Special Officer and other incidental and ancillary matters. The explanatory note attached to the Order stated that it was intended to regulate the procurement and distribution of raw cashwnuts by the State Government. The Order is issued by the State Government of Kerala under section 3 of the Kerala Act, the object of which is to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain articles which, is the title of the Act indicates, are considered to be essential for the community. The Kerala Act as originally enacted was intended to be in force for a period of five years from the date of its commencement. By successive amendments, its life is extended to twenty years from the commencement of the Act. Although it makes provision for conferring power on the State Government to make appropriate orders regarding regulation of production, supply and distribution of essential articles substantially on the lines on which the (Act 10 of 1955) (hereinafter referred to as the Central Act ') passed by the Parliament provides for the regulation of production, supply and distribution of essential commodities as defined in the Central Act. the Kerela Act does not itself specify any article as an essential article. But the expression 'essential article ' is defined by section 2(a) of the Kerala Act thus : 681 "2. Definition. In this Act, unless the context otherwise requires, (a) "essential article" means any article (not being an essential commodity as defined in the ) which may be declared by the Government by notified order to be an essential article. " From the above definition it is clear that the State Government can declare as an essential article under the Kerala Act only an article which is not an essential commodity as defined in the Central Act. When such a declaration is made in respect of any article, the State Government acquires the power to make an order under section 3 thereof in respect of such article. The State Government is, however, precluded from declaring any article which is an essential commodity under the Central Act as an essential article and from making an order for the purpose of controlling its production, supply and distribution. This is obvious from the words in the parenthesis in section 2(a) of the Kerala Act defining the word 'essential article '. That the object of the Kerala Act is only to provide for regulation of production, supply and distribution of an article which is not an essential commodity as defined under the Central Act is also clear from what is stated by the Kerala Government in the letter dated December 5, 1961 addressed by the Law Secretary, Government of Kerala to the Central Government seeking the assent of the President to the Bill passed by the Kerala Legislature. The relevant part of the letter reads: ". . . . . . . Sub: The Kerala Essential Articles Control (Temporary Powers) Bill 1960. I am to forward herewith two copies of the Kerala Essential Articles Control (Temporary Powers) Bill, 1960, as passed by the Legislative Assembly and reserved by the Governor for the consideration of the President. The Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949, as amended by the Kerala Acts 24 of 1958 and 3 of 1959, was in force in the Kerala State till 25 1 1960 when it expired by efflux of time. The (Central Act 10 of 1955) applies only in the case of essential commodities specified in that Act. At present there is no law in the State to control the production, supply and distribution of, and trade and commerce in, essential articles required for industrial 682 and other purposes, which do not fall within the ambit of the Central Act. For the implementation of the scheme under the programme of industrialisation during the Third Five Year Plan it may become necessary to control the production, supply and distribution of, and trade and commerce in, articles which are not essential commodities and unless the Govt. have such powers, difficulties are likely to arise. The object of the present legislation is to take power for the control of essential articles which are not essential commodities within the meaning of the Central Act. It empowers Govt. to declare any article, not being an essential commodities within the meaning of , to be an "essential article" and to control, by notified order, the production, supply and distribution of, and trade and commerce in, any such article. This is an enabling measure and is modelled on the Central . It is intended to be in force only for a period of five years. The subject matter of the legislation falls within the scope of entries 26 and 27 of the State List in the Seventh Schedule to the Constitution, namely: 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. Hence the State Legislature is competent to enact the measure. The provisions of the Bill may attract Articles 301 and 304(b) of the Constitution as imposing a reasonable restriction on the freedom of trade and commerce. Accordingly the previous sanction of the President for the introduction of the Bill in the State Legislature has been obtained as required by the proviso to article 304(b) in the letter of the Ministry of Commerce and Industry referred to as third paper above". One of the grounds urged on behalf of the petitioners in support of these petitions is that raw cashewnut being a foodstuff (which is an essential commodity under the Central Act), the State Government of Kerala could not make a declaration to the effect that it was an essential article under section 2(a) of the Kerala Act and consequently the impugned Order was outside the scope of the Kerala Act. On 683 behalf of the State Government, it is contended that raw cashewnut is not a foodstuff and even if it is held to be a foodstuff having regard to the nature and object of the Order, it should be treated as being within the competence of the State Government. The relevant part of section 2(a) of the Central Act containing the definition of the expression 'essential commodity ' read thus: "2. In this Act, unless the context otherwise requires, (a) "essential commodity" means any of the following classes of commodities: (i) cattle fodder, including oilcakes and other concentrates; (v) foodstuffs, including edible oilseeds and oils; Since it is argued on behalf of the State Government that foodstuffs ' only mean those articles which can be directly consumed without any kind of processing and that raw cashewnuts which are intended to be used as industrial raw material cannot, therefore, be called as 'foodstuffs ' in the strict sense, it is necessary to examine the history of legislation relating to the trade and commerce within a State and production, supply and distribution of goods in India. Under the Government of India Act, 1935, entries 27 and 29 of List II in the Seventh Schedule read as follows: "27. Trade and commerce within the Province; markets and fairs; money lending and money lenders. Production, supply and distribution of goods; development of industries, subject to the provisions of List I with respect to the development of certain industries under Federal control. " Entry 34 of List I read as: "34. Development of industries where development, under a Federal control is declared by Federal law to be expedient in the public interest. " From the above entries it is clear that the subject of trade and commerce within the Province and subject to entry 34 of List I, the subject of production, supply and distribution of goods were within the competence of the Provincial Government. As a result of the emergency proclaimed by the Governor General under section 102 of 684 the Government of India Act, 1935 on the outbreak of the Second World War the Federal Legislature acquired the power to make laws on all the subjects in the Provincial List. The laws made by the Federal Legislature on the provincial subjects after the Proclamation of Emergency were to cease to have effect on the expiration of a period of six months after the Proclamation of Emergency had ceased to operate except as respects things done or omitted to be done before the expiration of the said period. The Proclamation of Emergency was revoked on April 1, 1946. Consequently all laws made by the Federal Legislature on the subjects in the Provincial List were to cease to have effect after the expiry of September 30, 1946. During the period of emergency the Federal Legislature had passed a law enabling the Federal Government to issue Orders with respect to trade and commerce within the Provinces and the production, supply and distribution of several commodities which were considered to be essential and those Orders were also to cease to have effect on the expiry of September 30, 1946. Since it was felt that the Federal Legislature should continue to have power to make laws on the subject of production, supply and distribution of certain essential commodities, on March 26, 1946 the British Parliament passed the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. 6, Chapter 39) amending, among others, sub section (4) of section 102 of the Government of India Act, 1935 as to the effect of laws passed by virtue of the Proclamation of Emergency. The relevant part of that Act read: "2. (1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall during the period mentioned in section four of this Act have power to make laws with respect to the following matters (a) trade and commerce (whether or not within a Province) in, and the production, supply and distribution of cotton and woollen textiles, papers (including newsprint). foodstuffs (including edible oil seeds and oils) petroleum and petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; and (b) . . . . . . (c) . . . . . . but any law made by the Indian Legislature which that Legislature would not but for the provisions of this section, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of the 685 said period except as respects things done or omitted to be done before the expiration thereof. " Section 4 of that Act specified the duration of the legislative power conferred on the Federal Legislature by section 2 and section 5 prescribed the duration of laws passed by virtue of a Proclamation of Emergency. It is seen from section 2(1)(a) of the above British Act that for the first time, the subject of foodstuffs (including edible oil seeds and oils) was dealt with separately in a constitutional document. The Governor General in exercise of the extended legislative power granted by the British Act promptly issued within the specified period the Essential Supplies (Temporary Powers) Ordinance 1946) (XVIII of 1946) extending the controls in respect of certain essential commodities including foodstuffs beyond the first day of October, 1946 and the said Ordinance was repealed and replaced by the Essential Supplies (Temporary Powers) Act, 1946 (Act No. XXIV of 1946) enacted by the Federal Legislature in November, 1946. Section 2(a) of that Act defined the expression 'essential commodity ' as meaning 'foodstuffs ' and certain other articles mentioned therein. Section 2(e) defined 'foodstuffs ' as including edible oil seeds and oils. The operation of the said Act was extended by competent legislative acts upto March 31, 1950. Since by Entries 26 and 27 of List II of the Seventh Schedule to the Constitution, the subject of trade and commerce within the State subject to the provisions of Entry 33 of List III and the subject to production, supply and distribution of goods subject to the provisions of Entry 33 of List III had been assigned to the States and Entry 33 of List III only dealt with trade and commerce in, and the production, supply and distribution of the products of industries where the control of such industries by the Union was declared by Parliament by law to be expedient in the public interest, having regard to the then existing conditions, Article 369 was enacted as a temporary and transitional measure conferring legislative power on the Parliament during a period of five years from the commencement of the Constitution to make laws with respect to the following matters as if they were enumerated in the Concurrent List, namely: (a) trade and commerce within a State in, and the production, supply and distribution of, cotton and woollen textiles, raw cotton (including ginned cotton and unginned cotton or kapas), cotton seed, paper (including newsprint), foodstuffs (including edible oilseeds and oil), cattle fodder (including oil cakes and other concentrates), coal (including coke and derivatives of coal), iron, steel and mica; 686 (b) offences against laws with respect to any of the matters mentioned in clause (a), jurisdiction and powers of all courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters but not including fees taken in any court. It was provided that any law made by Parliament which Parliament would not but for the provisions of Article 369 of the Constitution have been competency to make would, to the extent of the incompetency, cease to have effect on the expiration of the period of five years from the commencement of the Constitution except as respects things done or omitted to be done before the expiration thereof. It may be noticed that clause (a) of Article 369 of the Constitution specifically referred to foodstuffs (including oilseeds and oil) and cattle fodder (including oil cakes and other concentrates). By virtue of the power under Article 369, the Parliament extended the life of the Essential Supplies (Temporary Powers) Act, 1946 till January 26, 1955. As the subjects referred to in Article 369 of the Constitution were of national importance and it was thought that it was desirable that the Parliament should also have concurrent power to make laws with respect to them, the Constitution (Third Amendment) Act, 1954 was enacted on February 22, 1955 substituting Entry 33 of List III by the following new Entry: "33. Trade and commerce in, and the production, supply and distribution of, (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute. " It was pursuant to the new Entry 33 of List III of the Seventh Schedule to the Constitution that Parliament enacted the Central Act (i.e. the ). It is not disputed by the State Government that if raw cashewnut is foodstuff within the meaning of the Central Act, it cannot be declared as an essential article under the Kerala Act. What is, however, 687 urged is that since the Order regulates only procurement and distribution of raw cashewnut as industrial raw material for processing in the factories it is not being dealt with as foodstuff. Hence it should not be treated as an essential commodity under the Central Act. There are at least two good reasons to reject this contention advanced on behalf of the State Government first, the language used in section 2(a) (v) of the Central Act and secondly the purpose of the Central Act. Section 2(a) (v) of the Central Act reads: 'foodstuffs. including edible oilseeds and oils '. It is a well known rule of interpretation that associated words take their meaning from one another and that is the meaning of the rule of statutory construction, noscitur a sociis. When 'foodstuffs ' are associated with edible oilseeds which have to be processed before the oil in them can be consumed, it is appropriate to interpret 'foodstuffs ' in the wider sense as including all articles of food which may be consumed by human beings after processing. It is in this wider sense that the said term has been understood by Indian courts as can be seen from some of the decisions to which we shall presently refer. Secondly, having regard to the history of legislation relating to foodstuffs dealt with above and the object of the Central Act which regulates the production, supply and distribution of essential commodities amongst the poverty stricken Indian people, the expression 'foodstuffs ' should be given a wider meaning as including even raw materials which ultimately result in edible articles. Any interpretation that may be given in this case should not be governed by its consequence on the impugned Order but in the light of the importance of the Central Act in the context of the national economy. A narrow interpretation may result in the exclusion of several articles from the purview of the Central Act although nobody has entertained any doubt so far about their being essential commodities. We shall now see what cashewnut means. Cashewnut is an edible seed or nut belonging to the family of anacardiaceae and grows mostly in tropical and sub tropical regions where humidity is great. It is generally grown in the States of Kerala, Karnataka and Tamil Nadu, in India, in East Africa and in the tropics of Central and South America. Cashewnut is shaped like a kidney or a large thick bean. 'It appears as though one of its ends had been forcibly sunk into the calyx end of a fleshy pear shaped fruit, called the cashew apple which is about three times as large as the nut and of reddish or yellow colour. The cashew apple is much used where the tree grows, in beverages, jams and jellies but is unimportant commercially. The nut has two walls or shells, the outer of which is smooth and glass like over the surface thin and somewhat elastic but stout and of olive green 688 colour until mature when it becomes strawberry roan. The inner shell is considerably harder and must be cracked like the shells of other nuts. . The fruits are picked by hand and the nuts are first detached, then thoroughly dried in the sun. .By improved methods of roasting, the nuts pass through large revolving cylinders of sheet iron with perforated sides, which are made to revolve above well controlled flames. The oil drains into containers below and is salvaged. Later, the inner shells are broken open by hand labour and the kernels given further heating treatment by which the skins are removed and the kernels made ready for consumption '. (Vide Encyclopaedia Britannica 1962 Edn. 4, pp. 958 959). It is not disputed that the raw cashewnut with which we are now concerned is used by the petitioners for processing in their factories in order to make it fit for human consumption. It is also stated that even the raw cashewnut kernel is eaten by human beings. It is well known that the food eaten by human beings consists of cereals like wheat, rice or other coerce grains, pulses, oilseeds, vegetables, sugar, fruits and nuts, animal foodstuffs and sea food like meat, beaf, mutton and fish and dairy products like milk, butter, eggs etc. According to Webster 's Third New International Dictionary, the word 'food ' means 'fodder ' also. One of the meanings of the word 'food ' given in that Dictionary is 'material consisting of carbohydrates, fats, proteins and supplementary substances (as minerals vitamins) that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism '. In the same Dictionary 'foodstuff ' is defined as 'a substance with food value ' and 'the raw material of food before or after processing '. One of the usages of the said word is given as 'a bountiful crop of cereal foodstuffs '. Therefore, 'foodstuff ' need not necessarily mean only the final food product which is consumed. It also includes raw food articles which may after processing be used as food by human beings. The earliest of the Indian cases cited before us on the interpretation of the expression 'foodstuffs ' is Shriniwas Pannalal Chockhani & Ors. vs The Crown. In that case the conviction of the appellant of an offence punishable under section 7 of the Essential Supplies (Temporary Powers) Act, 1946 had been challenged. The charge of which the appellant had been found guilty by the judgment under appeal was that he had transported 'bharda ' or 'chuni bharda ' which was a foodstuff without the required permit. The contention of the appellant was that it was just cattle feed which was not fit for human consump 689 tion and therefore it could not be said that he had violated the law on the footing that the material transported was 'tur dal ' a foodstuff the transport of which alone without a permit was an offence. The said argument was rejected by the Nagpur High Court with the following observations: "The learned counsel for the appellants further contended that as the Essential Supplies (Temporary Powers) Ordinance, 1946 [XVIII (18 of 1946)] and the Essential Supplies (Temporary Powers) Act, 1946 [XXIV (24) of 1946], dealt with "foodstuffs" and not "cattle feed" export of chuni, a cattle feed was not prohibited under the Food grains Export Restrictions Order, 1943. The term "foodstuff" has not been defined either in the Ordinance or in the Act. In common parlance, foodstuffs mean "materials used as food". The term is not used only for material which is immediately fit for human consumption but it also applies to material which can be used as food after subjecting it to processes like grinding, cleaning etc. For instance, paddy as such is not fit for human consumption but rice in it is, and yet paddy is called foodstuff. So also tur. There is no reason to suppose that the word "food stuffs" is not used, in these laws, in this usual sense but is used in the restricted sense of material which is fit for human consumption immediately without subjecting it to any process. If such a restricted meaning is accepted, it would lead to evasion of the Law in question by mixing some foreign matter with the stuff that is immediately fit for human consumption. The test is not whether it can be immediately used for human consumption but whether it can be so used after subjecting it to the usual processes. The uncleaned tur dal (ie. tur dal without separating from it wastage and foreign matter) which was being exported on 26 12 1946 in this case was such a foodstuff and comes within the provisions of the Essential Supplies (Temporary Powers) Ordinance 1946, and the Essential Supplies (Temporary Powers) Act, 1946". In the State of Bombay vs Virkumar Gulabchand Shah this Court was called upon to decide whether 'turmeric ' was 'foodstuff ' in a case arising under the Essential Supplies (Temporary Powers) Act, 1946. Vivian Bose, J. who delivered the judgment after observing: 690 "So far as "food" is concerned it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background. Even in a popular sense, when one asks another, "Have you had your food", one means the composite preparations which normally go to constitute meal curry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not usually think separately of the different preparations which enter into their making of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non nutritive adjuncts. So also, looked at from another point of view, the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive, can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons whose stomachs are accustomed to a more spicely prepared product". held: "As we have seen, turmeric falls within the wider definition of 'food ' and 'foodstuffs ' given in a dictionary of international standing as well as in several English decisions. It is, I think, as much a "foodstuff", in its wider meaning, as sausage skins and baking powder and tea. In the face of all that I would find it difficult to hold that an article like turmeric cannot fall within the wider meaning of the term "foodstuffs". Following the above decision of this Court, the High Court of Calcutta held in Atulya Kumar De & Ors. vs The Director of Procurement and Supply & Ors. that paddy was foodstuff within the meaning of that expression used in the Essential Supplies (Temporary Powers) Act, 1946 even though paddy could not be consumed without further processing. The relevant part of the decision runs thus: "The first point taken is that the power conferred by the Act (read with the notification) upon the State of West Bengal is only in relation to foodstuffs and that paddy is not foodstuff. It is stated that the description of paddy at "Rice in 691 the "husk" is a colourable attempt to avoid this difficulty. In 'The State of Bombay vs Virkumar Gulabchand Shah ' (AIR , it was held that turmeric is "foodstuff" within the meaning of the Spices (Forward Contract Prohibition) Order 1944" read with section 2(a) of the Act. It was held that the term "foodstuff" is ambiguous and may have a vide meaning or a narrow one. Whether the term is used in a particular Statute in its wider or narrower sense cannot be answered in the abstract but must be answered with due regard the background and context. Thus in 'James vs Jones ' [(1894) 1 Q.B. 304], baking powder was held to be an article of food while in 'Hinde vs Allmond ' , it was held that tea was not. Now the act had been passed to control the production and distribution of essential commodities. What can be looked upon more of an essential commodity than both rice and paddy ? In West Bengal, the two things most essential for the sustenance of human life are rice and paddy. Mr. Mukherjee admits that rice is an essential commodity & a foodstuff, but he says that paddy is not because nobody can eat paddy. But that is a very narrow view to take. Paddy is only a stage in the production of rice and the one cannot be food without the other being food as well. Nobody eats the husk in paddy; but nobody eats the skin of mango or the shell of a egg and yet they are unquestionably articles of food. In my opinion paddy is 'foodstuff ' within the meaning of that expression as used in the Act and the notification. " To the same effect is the decision of the Calcutta High Court in Nathuni Lal Gupta & Ors. vs The State & Ors. in which wheat and wheat products were held to be foodstuffs. The High Court of Punjab and Haryana in Sujan Singh Matu Ram vs The State of Haryana and the High Court of Orissa in Bijoy Kumar Routrai & Ors. vs State of Orissa & Ors. also lay down the same principle. In Tika Ramji & Ors. vs The State of Uttar Pradesh & Ors. this Court observed: "The essential commodities therein comprised inter alia foodstuffs which would include sugar as well as sugarcane 692 and both sugar and sugarcane therefore came within the jurisdiction of the Centre. " The above observation makes it manifest that even a raw material like sugarcane used in the manufacture of sugar is a 'foodstuff '. Younus vs Sub Inspector of Police is a case in which the question whether raw cashewnut was foodstuff or not directly arose for consideration. The learned Judge who decided the case held: "The reasoning adopted for holding that wheat and paddy are foodstuffs applies with equal force in the case of cashewnuts. There is no scope for doubt that cashew kernel is an eatable commodity both in its raw form and also when fried. It is taken in as part of the food and is also used in the preparation of food. That its kernel should be separated from the shell or outer covering or that it should be processed before use does not make raw cashewnuts any the less "foodstuff. " It is also significant that 'raw cashewnut ' is included in the group of edible fruits in Chapter 8 of section II dealing with vegetable products of the First Schedule to the . It was, however, urged that even though cashewnut was an article which could be eaten, it was an article which was eaten by very few persons on rare occasions and hence it is difficult to conceive cashewnut as an essential commodity. It is no doubt true that cashewnut having become expensive, it is now more of a luxury. Due to export of cashewnut on a large scale, it is a commodity which is in short supply in the country and therefore the price at which it sells is beyond the reach of the common man. But nevertheless it is an article of food. It is eaten in raw form and after it is fried. It is also commonly used in various preparations of food like pulav, sweets etc. There is no basis for the assertion that it is a rare commodity outside the State where it is grown. It is eaten not only in Kerala but also in other parts of the country. When cashewnut is exported, it is exported as a foodstuff. Now it cannot be that cashewnut eaten abroad is a foodstuff, and whatever is consumed within the country is not a foodstuff. It is therefore, a foodstuff and must be classified as an essential commodity. Its importance as a foodstuff can also be seen from the statements filed in these cases in which is stated that in the State of Kerala in the year 1976 77 the total quantity of raw cashewnut procured was in the order of 60,000 tonnes, the number of workers 693 engaged in the cashewnut processing industry was about 1,20,000 and that there were 269 cashew factories. It was next urged that cashewnut could be treated as an essential article only for the purpose of export and not an essential commodity under the Central Act. This again is not correct. The Central Government can make an Order under the Central Act even when an essential commodity is used for industrial purpose or for purposes of export. Essential commodities do not cease to be essential commodities under the Central Act merely because they are exported after they are processed in India. Foodgrains (Prohibition of Use in Manufacture of Starch) Order, 1971, The Fruit Products Order, 1955, The Gur (Regulation of Use) Order, 1978, Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order, 1977, Rice (Prohibition of Use in Wheat Products) Order, 1971. Vegetable Oil (Standards of Quality) Order, 1972, Vegetable Oil Product Producers (Regulation of Refined Oil Manufacture) Order, 1973 and the Essential Commodities (Regulation of Production and Distribution for purposes of Export) Order, 1966 demonstrate the diverse purposes for which an Order can be made under the Central Act. It was next urged that as long as the Central Government had not passed an order in respect of the same matter, it was open to the Government of Kerala to pass the impugned Order. Reliance was also placed on the decision of this Court in Tika Ramji 's case (supra), in which U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 was upheld even though sugarcane was an essential commodity under the Central Act. In that case this Court was concerned with the question whether there was any repugnancy between a Central law and a State law. We are not concerned here with such a question. If a question of application of Article 254 of the Constitution had arisen, it would have been open to consider whether there was any repugnancy at all between the two laws having regard to the scope and extent of the field occupied by the Central law and the State law. But the real question which now arises for decision in these petitions is whether the Kerala Legislature ever intended to treat any article which comes within the scope of the Central Act as an essential article. The language of section 2(a) of the Kerala Act steers clear of all essential commodities under the Central Act by excluding them from the operation of the Kerala Act. The power of the Central Government to make an order under the Central Act in respect of raw cashewnut which is a foodstuff cannot be doubted. If that is so the Kerala Act cannot apply to it. The argument that as long as the Central Government had not made an Order in respect of raw cashew 694 nut, the Kerala Government can pass an Order is not available in the circumstances by reason of the definition of the 'essential article ' in the Kerala Act. It might have been open to consideration if the said definition had not contained the words in the parenthesis. On a careful consideration of the matter, we are satisfied that raw cashewnut is a foodstuff falling under section 2(a) (v) of the Central Act and hence cannot be declared as an essential article under section 2(a) of the Kerala Act. It follows that no Order can be made by the Government of Kerala under section 3 thereof in respect of raw cashewnut. The action of the Kerala Government is beyond the power conferred on it by the Kerala Legislature. In the result, we hold that the declaration made by the Government of Kerala to the effect that raw cashewnut is an essential article under the Kerala Act and the impugned Order made thereunder are liable to be quashed and they are accordingly quashed. All the other contentions including those relating to the alleged infringement of the fundamental rights of the petitioners raised in these petitions are left open. Before concluding, we propose to advert to the last submission made before us on behalf of the State Government. It was submitted that the cashewnut industry in Kerala was a labour oriented industry and if the declaration and the Order were struck down, a number of workmen would be adversely affected. It was also submitted that the entire economy of the State of Kerala which largely depended on the export trade in cashewnuts would be disrupted. If any such serious problem arises, it can always be set right by the competent Legislature or the appropriate Government taking needful remedial action in the light of Entry 33 of List III of the Seventh Schedule to the Constitution. The petitions are accordingly allowed. In the circumstances of the case, there shall be no order as to costs. P.B.R. Petitions allowed.

The Maharashtra Medical Practitioners Act 1961, contains provisions for registration and enlistment of medical practitioners. Clause (ii) of sub section (5) of section 17 of the Act provides that any person not being a person qualified for registration under sub sections (3) or (4) who proves to the satisfaction of the Committee appointed under sub section (6), "that he was on the 4th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application and on payment of the prescribed fee. The respondent whose name was listed by the Board of Indian Medicine, Uttar Pradesh in the register of Vaids and Hakims practised as a Vaid and as an Ayurvedic Doctor in Agra and Bhopal respectively. He migrated to Bombay in 1962 where he started practice as an Ayurvedic Doctor. He applied for registration as a medical practitioner to the Committee of the Medical Board of Unani system of Medicine under sub section (5) of section 17 of the Act. His application was rejected, and his appeal filed to the Board was also dismissed. The High Court, however, allowed the respondent 's writ petition, relying on its earlier decision in Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioner Act, 1961 (1969) 71 Bom. L.R. 71 (77), held section 17(5) of the Act as unconstitutional and set aside the orders passed by the Board. Dismissing the appeal to this Court, ^ HELD: 1. In Rukmani Hoondraj Hingorani vs The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 the validity of section 18(2)(b)(ii) fell for consideration and was rightly held to be unconstitutional as it offends the provisions of Article 14. It was observed in that case that the provision, by restricting the right of enlistment to those medical practitioners 'who have been regularly practising on 4th November, 1951 in the Bombay area of the State ' had no rational nexus with the object of the Legislature which was to allow medical practice by those less qualified persons who were too old to choose alternative means of livelihood, and that while it was clearly open to the Legislature to provide that a person must have been practising for a certain number of years, or from before a particular date, in order that his name may be included in the list, no distinction on the basis of the area in which he had been practising could be made. [400C H] 399 2. The provisions of section 18(2)(b)(ii) being in pari materia with subsection (5) of section 17, the observations made in the above case apply also to this sub section. This sub section is, therefore, violative of Article 14 of the Constitution. [401G]

Civil Appeal No. 490 of 1860. Appeal by special leave from the judgment and order dated October 6, 1958, of the Punjab High Court in Civil Misc. No. 28 of 1958(File 'A '). Mohan Behari Lal, for the appellant. N. section Bindra and P. D. Menon, for the respondent No. 1. Radhey Lal Agarwal and V.N. Sethi, for respondent No.2. December 5. The Judgment of the Court was delivered by DAS GUPTA, J. The appellant, Jetha Nand (Betab) was enrolled as an Advocate in the Chief Court of Sind on May 14, 1947. He came away to India at the end of the year 1948 and practised in the courts at Delhi. On October 8, 1956 an order was passed by the Chief Justice of the Punjab High Court prohibiting the appellant from practising as an 963 Advocate in the courts at Delhi. On November 8, 1956 the appellant presented an application to the High Court in which he contended that by virtue of his having been enrolled as an Advocate in the Chief Court of Sind he was entitled to practice in all the subordinate courts within the territory of India. This petition was however rejected by a Full Bench of the Punjab High Court on the view that the appellant could not after the partition of India be considered to be an Advocate enrolled under the provisions of the Bar Councils Act. Against this order the present appeal has been preferred on special leave granted by this Court. The petitioner 's case is that as immediately before the partition of India he was entitled to practise in any court in British India his right to practise in those Courts continued to exist even when on partition of India, "British India" ceased to exist and provinces of India took their place; and when thereafter on the formation of the Indian Union under the Constitution these provinces became States of India but those same courts continued, his right to practise in those courts also continued. On behalf of the respondents it is contended that the petitioner 's right to practise in courts which were not under the Chief Court of Sind ceased as soon as Sind ceased to form part of India and the Chief Court of Sind ceased to be a High Court in India. As the appellant bases his claim on section 14 (1) (b) of the , it is necessary to examine first the scheme of that Act. This Act was passed to provide for the constitution and incorporation of Bar Councils for certain courts in British India, to confer powers and impose duties on such Bar Councils and to amend the law relating to legal practitioners entitled to practise in the courts. It extended to the whole of British 964 India but was in the first instance made applicable to only certain named High Courts the High Court at Calcutta, and the High Courts at Madras, Bombay, Allahabad, Patna and Rangoon. It was also provided (section 1, sub s.2) that the Act shall apply to such other High Court within the meaning of cl. 24 of section 3 of the as the Governor General in Council may, by notification in the Gazette declare to be High Courts to which this Act applies. Sections 2,17, 18 and 19 were to come into force at once; but as regards the other provisions it was enacted that they could come into force in respect of any High Court to which the Act applied on such date as the Governor General in Council might by notification direct. Section 2 defined Advocate as "an advocate" entered in the roll of advocates of a High Court under the provisions of this Act and "High Court" as "a High Court to which this Act applies". Sections 3, 4 and 5 deal with the constitution and incorporation of Bar Councils. Section 8 makes it the duty of every High Court to prepare and maintain a roll of advocates of the High Court and also provides that no person shall be entitled as of right to practise in any High Court unless his name is entered in the roll of the advocates of the High Court. Section 10 empowers the High Court to reprimand, suspend or remove from practice any advocate of the High Court whom it finds guilty of professional and other misconduct. The manner in which such action can be taken is dealt with in sections 10, 11, 12 and 13. Of these, section 12 provides inter alia that when any advocate is reprimanded or suspended under this Act a record of the punishment shall be entered against his name in the roll of the Advocates of the High Court and when an Advocate is removed from Practice his name shall forthwith be struck of the roll. Section 14 provides inter alia that an advocate shall be entitled as of right to practise in any other Court in British India. 965 It is not disputed before us that the Governor General by notification in the Gazette of India did declare the Chief Court of Sind to be a High Court to which this Act applied and that by another notification he also directed that all the provisions of the Act would come into force in respect of the Chief Court of Sind on some date long before 1947. Consequently, even though these notifications have not been placed before us we must proceed on the bases that on May 14, 1947, when the appellant was enrolled as an advocate in the Chief Court of Sind he was an advocate for the purposes of the and so was entitled as of right to practise in any subordinate courts in what then was British India. The question is whether this right continued to exist after Sind ceased to form a part of India. It appears to us clear that when section 2 defines advocate as "an advocate entered in the roll of advocates of High Court", it means an advocate who has been entered in such roll of advocates and whose name continues to be on that roll. When, for example, the name of the advocate is removed from the roll under section 12 (7) he ceases to be an advocate within the meaning of section 14 in spite of the fact that his name was once entered in that roll. An advocate entered in the roll of advocates can therefore mean only one whose name continues to be entered in that roll. What is the position if the High Court ceases to exist, by reason of abolition or otherwise ? The only possible answer to this question is that if the High Court ceases to exist; the roll which used to be maintained by it has also no legal existence and consequently a person whose name was in that roll, is no longer an advocate within the meaning of section 14 or any other section of the Act. That appears to be exactly the position in the present case. The Chief Court of Sind was a High Court within the meaning of sections 3 to 19 of the by reason of the notification made by the Governor General in Council under section 1 sub section 2 of the Act. It would be absurd 966 to think that when Sind ceased to form part of India the Chief Court of Sind still continued to be a High Court for the purposes of Indian law. All doubts in the matter have however been set at rest by the provisions of the Indian (Adaptation of Existing Indian Laws) Order, 1947. In this connection it is necessary to recall section 18 sub section 18 sub section 3 of the Indian Independence Act which provides that the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other legislature or other authority having power in that behalf. Many adaptations were in fact found necessary to remove complications and confusions which might otherwise have arisen. Of the several adaptation orders made we are concerned here with the Adaptation Order No.16 which was called the India (Adaptation of Existing Indian laws) Order, 1947. In this Order, the appointed dated was defined as August 15, 1947. Section 5 of the Order is in these words : "Any reference in an existing Indian law to a High Court which as from the appointed day ceases to be a High Court for any part of the Dominion of India, shall (a) if the reference be to the High Court of Judicature at Lahore, be replaced by a reference to the High Court of East Punjab, and (b) in any other case, be omitted. " The Chief Court of Sind (a High Court within the meaning of the ) having ceased as from August 15, 1947 to be a High Court for any part of the Dominion of India references to that Court as one to which the Act applied must be omitted in the application of the Indian Bar 967 Councils Act, 1926 after that date. In other words, the Chief Court of Sind which was a High Court for the purposes of the up to the August 14, 1947 ceased to exist as a High Court for the purposes of the with effect from the 15th day of August, 1947. The necessary consequence of this is that the roll maintained by the Chief Court of Sind was from August 15, 1947 no longer a roll maintained by a High Court within the meaning of the and thus any person whose name was entered on the roll of the Chief Court of Sind ceased to be an advocate for the purpose of section 14 of the and therefore ceased to have the right under that section to practise in courts in India. There can be no doubt whatsoever that in making this adaptation in section 5 of the India (Adaptation of Existing Indian Laws) Order, 1947 the intention of the authority making the order was not only to ensure that rights will not in future accrue on the basis of a High Court now in Pakistan having been formerly a High Court in India but also to prevent the future exercise of any right that may have become vested in any person on such a High Court having been a High Court in India. This conclusion is inevitable from the absence of any saving clause in the Adaptation Order. Thus, even though the appellant had a right on the 14th August, 1947 to practise in the courts subordinate to any High Court in India such a right ceased to exist after the Adaptation Order mentioned above. We need merely add that if the appellant 's contention was correct, the anomalous position would have arisen that there would be no court in India which could take disciplinary action against him, in the event of misconduct. The scheme of the Bar Councils Act is as has been emphasised 968 earlier, that each High Court in the country should have disciplinary jurisdiction over the Advocates on its rolls. The provisions of the Adaptation order have maintained this position. In our opinion, the High Court rightly rejected the appellant 's application. The appeal is accordingly dismissed. In the circumstances of the case we make no order as to costs. But the appellant who has filed the appeal as a pauper is directed to pay the court fees which would have been paid by him if he had not been permitted to appeal as a paper. Appeal dismissed.

The appellant J who was enrolled as an advocate in the Chief Court of Sind in May 1947 came to India at the end of the year 1948, and practiced in the Courts at Delhi. The Chief Justice of Punjab High Court prohibited the appellant from practicing as an advocate in the Courts of Delhi. At 962 the time the appellant was enrolled he was an advocate for the purposes of the , and so was entitled as of right to practice in any subordinate courts in what then was British India. The question was whether this right continued to exist, after Sind ceased to form a part of India. ^ Held, that the Chief Court of Sind which was a High Court for the purposes of , upto August 14, 1947, ceased to exist as a High Court for the purposes of the , with effect from August 15, 1947, by virtue of section 5 of the India (Adaptation of Existing Indian Law) Order, 1947. The necessary consequence of this was that the Roll maintained by the Chief Court of Sind was from August 15, 1947, no longer a roll maintained by a High Court within the meaning of the , and any person whose name was entered on the Roll of the Chief Court of Sind ceased to be an advocate for the purposes of section 14 of the , and therefore ceased to have the right under that section to practice in courts of India. In the present case even though the appellant had a right on August 14, 1947, to practice in the courts subordinate to any High Court in India, such a right ceased to exist after the India (Adaptation of Existing Indian Laws) Order, 1947.

N: Criminal Appeal No. 480 of 1979. From the Judgment and Order dated 3.4.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 239 of 1974. R.C. Kohli for the Appellant. U.N. Bachawat and Uma Nath Sing with him for the Respondent. 457 The Judgement of the Court was delivered by AHMADI,J. The appellant has been convicted under Section 302/34, IPC, for causing the murder of one Negji, son of the Parthesingh, of village Melakhedi. The prosecution case was that the family of the appellant and the family of the deceased were at loggerheads since quite sometime and there was bad blood between them. In 1967, Bhowansingh, a member of the complainant 's family is stated to have been murdered by the appellant 's party. Thereupon, the deceased along with others is stated to have fatally assaulted Bhagwansingh and Bahadursingh and inflicted grievous injuries of Govardhansingh. These three are none other than the sons of the appellant. The deceased and his companions were, however, acquitted. It is said the appellant, Daryao Singh was, therefore, keen to avenge the deaths of his sons. As a sequel to the earlier incident, it is said that the incident in question occurred on 25th September, 1970 at about 4.00 p.m. The fact that relations between the two families were strained is, therefore, not in dispute. On 25th September, 1970, the deceased, Negji, was working in his field along with his son PW 4 Bhanwar Singh. At that time the appellant went there in the company of Nagusingh Govardhansingh and Bapusingh. Nagusingh was armed with a gun and a stick with dharia like blade, Govardhansingh was armed with a similar weapon, the appellant was armed with a sword and Bapusingh possessed a gun. They lanuched an attack on the deceased Negji whereupon the the latter raised an alarm which attracted the attention of Pw 1 Bherusingh and Pw 3 Bhuwan Singh, who were working in the adjacent filed. They reached the spot and witnessed the incident. On their raising a hue and cry, the appellant and his companions fled away. PW 4 had run away frightened when a shot was fired at him. The deceased, Negji, sustained serious injuries on the head and his right leg was cut into two. PWs 1 and 3 went in search of PW 4 but on the way met two police constables PW 8 Chhotelal and PW 10 Itratkhan. They narrated the incident and disclosed the names of the assailants to them. All the four returned to the place of occurrence, placed Negji in a cart and proceeded towards the police station. But the injured passed away on the way. The dead body appears to have been taken to the hospital on the next day at about 5.20 p.m. PW 2 Dr. Sharma, performed the post mortem examination on 27th September, 1970 at about 7.00 a.m. Except the appellant the rest of the assailants could not be put to trial as they were reportedly absonding. 458 The prosecution mainly relies on the evidence of PW 1,3 and 4. In addition, the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 whom the names of the assailants were disclosed immediately after the incident. PW 8, however, turned hostile and was permitted to be cross examined by the learned Public Prosecutor. This, in brief, is the prosecution evidence against the appellant. The learned Trial Judge on an appreciation of the prosecutiion evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence. Besides, according to the Trial Judge, the evidence of DW 3 Keshav Shanker Varang established that the appellant was a physically disabled person who could not have weilded the sword with such ferocity as to cut the right leg into two pieces. To disbelieve the prosecution case the learned Trial Judge referrd to the evidence of the hostile Constable, PW 8, but failed to take note of the evidence or PW 10. As the three eye withnesses were closely related to the deceased, the learned Trial Judge applied the rule of prudence and thought it wise not to base a conviction on thier uncorroborated evidence. He therefore, acquitted the appellant. Feeling aggrieved by the order of acquittal passed by the learnd Trial Judge, the State of Madhya Pradesh preferred an appeal of the High Court which was disposed of by a Division bench by its impugned judgment and order dated 3rd, 1979. The Division Bench held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discarded solely on the ground that they were interested and partisan witnesses, but all that the rule of prudence demanded was to evaluate their evidence with caution. On a close scrutiny of the evidence of the said three witnesses, the Hight Court found that nothing was brought out in their cross examination to doubt their credibility. On the contrary the High Court felt that their evidence was partly corroborated by PW 10 and medical evidence. So far as the evidence of PW 8 is concerned the High Court observed that he had turned hostile and had deliberately departed from his earlier statement to the Police as well as the entry in his police diary. In this view of the matter, the High Court reversed the order of acquittal and convicted the appellant under section 302/34, IPC. It is this conviction which is assailed before us in this appeal by the appellant. 459 The learned counsel for the appeallant took us through the evidence of PWs 1,3 and 4. PWs 1 and 3 are the brothers of the deceased and PW 4 is his son. Indisputably there was bad blood between the two families on account of past incidents which may have ignited a desire for vendatta in the appellant and his companions. At the same time, the High Court also cautioned itself to the possibility of false involvement on account of the long standing enmity. The Hight Court then scrutinised the evidence of the aforesaid three witnesses and found that their evidence had no been shaken by elaborate cross examination. That means, according to both the Courts, if their evidence can be trusted as credible, it would prove the appellant 's involvement in the crime. Therefore, if their evidence is otherwise found to be reliable there can be no doubt that a conviction can be based on their evidence, notwithstanding (i) their close relations with the deceased, and (ii) the long standing enmity between the two families. We too have perused their evidence and taken at its face value we find no infirmity. Even the learned counsel for the appellant did not contend that there was any intrinsic infirmity in their evidence. All that he submitted was that it would be unwise to convict the appellant on their evidence without seeking corroboration. Since PW 8 has deliberately departed from his earlier version and has not told the truth his evidence cannot dilute their evidence. Immediately after the incident , while PWs 8 and 10 were passing by, they were informed of the incident and the names of the assailants were disclosed to them, in regard to which they made enteries in their respective diaries. The contradiction brought on record in the cross examination of PW 8 shows that the names of the assailants were disclosed to him. This was sought to be further reinforced by the entry in his diary wherein the name of the appellant appeared as one of the assailants. The learned Trial Judge wrongly attributed this entry to the ingenuity of the investigation officer. It is, therefore, obvious that PW 8 is not a dependable witness. The High Court 's conclusion in this behalf is unassailable. The learned Trial Judge made no reference to the evidence of PW 10. The High Court has referred to his testimony. This witness stated that while he and PW 8 were passing by, a frightened PW 1 approached them and reported that his brother was assaulted by the appellant and his companions. The High Court has accepted the testimony of the witness and we think rightly. The evidence of the witness, therefore, lends corroboration to the prosecution version regarding the involvement of the appellant. This discloseure was made to PW 10 immediately after the incident before there was any time of deliberation or concoction. the medical evidence shows that the deceased had as many as seven injuries, one of which was on the skull. the number and nature of the 460 injuries clearly indicate that more than one person was involved in the assault. It is, therefore, clear that the medical evidence also lends corroboration to the prosecution version to this limited extent. Strong reliance was, however, placed by the learned counsel for the appellant on the evidence of PW 2 Dr. Sharma. This witness has after describing the various injuries stated that the body was cold, rigor mortis and passed off and the body was decomposed when he performed the post mortem examination on the morning of 27th September, 1970. He also noticed blisters containing reddish fluid all over the body. The abdomen was swollen and greenish discoloration was noticed. In his opinion death was caused on account of the brain injury. In paragraph 6 of his deposition he stated "the duration of injury since death was 36 to 48 hours". In cross examination he said: "As the dead body was decomposed externally and internally blisters had formed all over the body, scrotum distented, marks of swelling on body, presence of magets on body; all these symptoms do indicate that their duration of injury since death could be 14 to 20 days also. " On the basis of these statements made by PW 2, counsel for the appellant strongly argued that death must have taken place long before 25th September, 1970 since blisters had appeared on the body. In this connection, he placed reliance on the table found at page 134 of Modi 's Medical Jurisprudence and Toxicology,(12th Edn.). It read as under: Putrefactive changes Time 1 to 3 days after 1. Greenish coloration death. over the iliac fossae The eyeballs, soft and yielding. Green coloration spreading 3 to 6 days over the whole abdomen, after death. external genitals and other parts of the body. Frothy blood from mouth and nostrils. Abdomen distrended with gas. Cornea 8 to 10 days fallen in and concave. Pur after death. lish red streaks of veins prominent on the extremities, Sphincters relaxed, Nails firm. 461 4. Body greenish brown. Blisters 14 to 20 days froming all over the body. Skin after death. peels off. Features unrecogniz able. Scrotum distension. Body swallow up owing to distorsiopn Maggots on the body. Nails and hair loose and easily detached. Soft parts changed into a thick, semi 2 to 5 fluid, black mass. Skull, abdomen and months thorax burst. Bones exposed. Orbits after empty. death. _______________________________________________________ It is indeed suprising that no such submission was made on behalf of defence before the Trial Court as well as the High Court. Even in the memo of appeal no such precise contention appears. Hoeever, we have thought it proper to examine the submission on merits rather than reject it on a technical ground. Counsel of the appellant strongly relied on this statement of PW 2 Dr. Sharma and contended that the presence of blisters all over the body is a sure pointer to the fact that death had taken place 14 to 20 days before the post mortem examiniation. It may be recalled that the deceased was 45 years of age and was the victim of violent attack with lethal weapons in which he had suffered a fatal semi circular woundon the scalp 6" x 4" extended by 2" to the left mid line. In addition thereto he had received incised wounds on his left forearm resulting in fractures. His right leg was cut into two pieces 6" below the tibia, liquified blood was oozing out, maggots were prersent, blisters were seen all over the body and the soft cuticle peeled off easily. There was another cut wound on the left leg exposing the tibia. A 5" wound was seen at the right side of the mouth. It was the scalp injury which caused the death. It is common knowledge that after death the body starts to cool down to the surrounding temperature. The cooling of the body is the earliest phenomenon which is followed by post mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action, depending on the position of the dead body. the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in everypart of the body setting in the process of putrefaction, unless special 462 care is taken to prevent the same. Decomposition in thus essentially the process of putrefaction which is dependent on environmental climatic conditions. In the present case death had occurred on 25th September and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day. The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken. The bdy thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off. Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity. Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process. The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body within twelve to eighteen hours of death. As time passes they deepen in colour and become purple. With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body. Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, files lay eggs on exposed wounds forming maggots. The body gets bloated and liquified, the skin looses coherence, the superficial layers peel off easily and blisters are formed. it is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots. Before we answer the contention it is essential to notice a few facts. The evidence of PWs 1,3 and 4 is that the incident occurred in the field of the deceased. This fact is corroborated of PW 5 Motilal and PW 6 Parbatsingh. The find of blood on the grass blades and on the earth attached under the seizure memo Exh. p 8 confirms their testimony. The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station. this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village. the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September, 1970 at 7.00 a.m. This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken 463 place many days before 25th September, 1970, a theory not put to the witnesses in cross examination. The direct testimony, therefore, does not support the theory urged on behalf of the appellant. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970. It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book. But that apart at pages 128 129 of the bok (Twentieth Edition) it is stated as under: "From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals. . . Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and phosphoretted hydrogen. From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up. The sphincters relax, and the urine and faeces may escape. From eighteen to thirty six or forty eight hours after death the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored, the eyes are forcedout of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. Ultimately the features become obilterated and unrecognizable. The abdomen becomes greately distended; hence on opening the cavity the gas escapes with a loud explosive noise. Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils. The breast of female bodies are greatly distended. The penis and scrotum become enormously swollen. The cellular tissues are inflated throughout, so that the shole body appears stouter and older than it actually is. 464 These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body. When these bursts, the cuticle being softened peels of easily. These are characterised by absence of vital reaction. It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours. It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago. That is why PW 2 is cautious to use the pharseology 'the duration of the injury since death could be 14 to 20 days also '. Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above, we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses, particularly PWs 1,3,4 and 10, that the deceased suffered a fatal wound on the evening of 25th September, 1970 to which he succumbed on that very day. We, therefore, reject this submission. It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellant 's leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it. For the above reason, we see no merit in this appeal and dismiss the same. Bail cancelled. The appellant will surrender forthwith.

The appellant has been convicted under Section 302/34, Indian Penal Code, by the high Court, for the murder of one Nagji, with whom he had strained relations. According to the prosecution there was bad blood between the family of the appellant and the deceased and there have incidents in the past, the last being the murder of two sons of the appellant and inflicting of grievous injuries on the third son, by the deceased, in which case, the deceased and his companions were acquitted. The appellant was keen to avenge the deaths of his sons and with that end in view, on 25th Septemeber, 1970, he along with three others, duly armed with guns and sticks, attacked the deceased, Negji, while he along with his son PW4 was working in his field. The deceased Negji raised an alarm which attacted the attention of PW 1 and PW 3, who were working in the adjacent field. They reached the spot and withnessed the incdent. On thier raising hue and cry, the appellant and his companions fled away PW 4 had run away frightened when a shot was fired at him. The deceased Nagaji received serious injuries on the head and his leg was cut into two peices. PWs 1 and 3 went in search of PW 4 and on the way met two police constables PW 8 and PW 10 to whom they narrated the whole incident and disclosed the names of the assailants. The deceased passed away, when his body was being taken to the police station. The postmortem examination was performed on the 27th at 7 a.m. The appellant was put up for trial, as others were abscondng. The learned trial Judge n appreciation of the prosecution evidence held that having regard to the long standing enmity between the two families, it was hazardous to place implict reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence. The Trial Judge applying the rule of prudence, did not convict the appellant on uncorroborated evidence of interest withnesses and accordigly acquitted the appellant. The State preferred an appeal to the 456 High Court. The High Court held that although the three prosecution witnesses were closely related to the deceased, their evidence could not be discards solely on the ground they were interested and partisan witnesses. The High Court found their evidence duly corroborated and therefore reversed and order of acquittal and convicted the appellant under Section 302/34, I.P.C. In this appeal the appellant had challenged his conviction. Apart from the question of appraisal of evidence,the appellants has placed strong reliance on the testimony of PW 2, Dr. Sharma and argued for the first time in the Court that his testimony shws that the death must have taken place long before 25the September 1970 there being blisters containing reddish fluid all over the body. Dismissing the appeal, this Court, HELD: Death had occurred on 25th September 1970 and the dead body law in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day. The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken. The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off. Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity.[462A C] The evidence establishes the chain of events showing the movement of the dead body and rules out the theory that death had taken place many days before 25th September 1970, a theory not put to the witnesses in corss examination.[462H 463] Blisters appear after the process of decomposition sets in within eighteen to forty eight hours. It shows that the existence of blisters does not mean that death had taken 14 to 20 days ago.[464B]

Civil Appeal Nos. 1988 1989 of 1970. From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967. V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70. K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent. The Judgment of the Court was delivered by KHANNA, J. This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the. We may now set out the facts giving rise to one of the appeals. Both the learned counsel are agreed that the decision in that would also govern the other appeal. Under section 5 of the Act, tax is payable by a dealer on his tax able turnover. "Taxable turnover` ' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act. It does not, however, include the turnover of purchase or sale in the course of inter State trade or commerce or in the course of export or import of goods. The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act. According to clause (i) of rule 9 of the sail rules. in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: "the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him". It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule. The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods. The respondent 's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs. 30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act. The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover. When, however, the respondent company sold the 154 goods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods. This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it: The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act. The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional. The learned single Judge dismissed the petition filed by the respondent. On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature. Sub section (3) of section 22 of the Act reads as under: "(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed. " The learned Judges of the High Court in holding the above provision. in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State. It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub section (3) of section 22 of the Act under the above entry. In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court. As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment. After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals. A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of "taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I". Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter State trade or commerce, and we are not concerned with this entry. 155 Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods. As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law. It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax. Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax. It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax. Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer. The answer to such a question has to be in the negative. The matter indeed is not res integra and is concluded by two decisions of this Court. A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. vs Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: "(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue. " The appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it. The appellant however, did not pay the amount collected to the government. The Government directed the appellant to pay the amount to the Government. The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2). The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) ; 156 under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount. The High Court upheld the validity of section 11(2). On appeal to this Court it was observed by the Constitution Bench as under: "The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government. Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision. the amount, though collected by way of tax, was not exigible as tax under the law." An attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax. This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected may be wrongly by way of tax is not exigible under the law. as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax. The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. vs State of Bihar & Anr.(1). In that case in determining the appellant 's turnover for assessment to sales tax for the year 1956 57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant 's sales of cement. The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover. After the introduction of section 20 A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20 A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited. The appellant 's contention that section 20 A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution. On appeal filed by the assessee this Court held that sub sections (3), (4) and (5) of section 20 A were ultra vires the State legislature. As a corollary thereto, sub sections (6) and (7) of that section were also held to be invalid. Subsection (3) of section 20 A of the Bihar Sales Tax Act read as under: "(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) 157 any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him. (b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected. " In holding sub section (3) and other impugned provisions of section 20 A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar 's case (supra). Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act. This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammad 's argument involves inventing a category of a "deemed tax" which is not there in the Act. The provisions of the Act contain a definition of "tax". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. "Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannot 158 be held to be "tax", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act. We would, therefore, dismiss the two appeals with costs. One hearing fee. V.P.S. Appeals dismissed.

Section 13 of the Karnataka Municipalities Act, 1964, provides that for the purpose of election of councillors of a town municipality at a general election the State Government shall, after previous publication by notification, determine, (a) the number of territorial divisions into which the municipality shall be divided. (b) the extent of each territorial division; (c) the number of seats allotted to each territorial division. and (d) the number of seats reserved for the Scheduled Castes and women. Section 14 provides that the electoral roll of the State Legislative Assembly for the territorial area comprised in the division, shall be deemed to be the list of voters of such division Rule 75 of the Mysore Municipalities (Election of Councillors) Rules, 196 empowers the State Government to make such orders as it deems fit for ensuring that the elections are held in accordance with the provisions of the Act. For holding a general election with respect to a town municipal council, the State Government issued the notification under section 13. Thereafter the Returning officer issued a notice fixing the calendar of events for holding the election. The list of voters for each division was prepared exactly according to the Electoral Roll, and kept open for inspection In the office of the municipal council. A list of the contesting candidates was also published and the poll date was also fixed as January 10, 1975. At that state it was found that some voters residing in the border of one division had been included in the voters ' list of an adjoining division and the State Government, in purported exercise of the power under r. 75, cancelled the calendar of events published by the Returning officer and directed a fresh preparation of the voters ' list as per the divisions notified. In a writ petition filed by the respondents, who were residents of the town, the High Court held that the State Government had no power to cancel the calendar of events and quashed the direction of the State Government. Dismissing the appeal to this Court, ^ HELD: (1) What is required by section 14(1) is that the list of voters of a division should correspond ipsissima verba with the Electoral Roll for the territorial area included in the division. of there is any mistake in the Electoral Roll in the some voters residing in one area or house number are shown as residing in another, it cannot be corrected by the Returning officer while preparing the list of voters for that division. The only way in which such mistake can be corrected is by applying for rectification of the Electoral Roll under section 22 of the Representation of the People Act, 1950, but of such rectification is not made the entries in the Electoral Roll would stand and they would necessarily be reflected in the list of voters for the division. But that would not constitute a mistake so far as the preparation of the list of voters for the division is concerned. It is only if the list of voters for the division does not correspond" with the concerned Electoral Roll in the sense that the voters shown in the Electoral Roll as residing in the territorial are omitted to be included in the list of voters of that division or voters shown In the Electoral Roll as residing in the territorial area of one division are included in the list of voters of another. that it can be said that the List is defective and not in accordance with the provisions of the Act [64D H] 58 (2) The scheme of the Act and particularly sections 14 and 15 show that it is only one list of voters that is contemplated to be in force during the entire process of election, and there is no question of correcting the list of voters according to the revised Electoral Roll which had come into being in February, 1975. [65G H] The list of voters is to be prepared for the election tnd 'election ' means the entire process consisting of the several stages and embracing the several steps by which an elected member is returned. [65H] Section 14(1) does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the Electoral Roll for the territorial area of the division in force at the relevant time to be the list of voters for the division for the purposes of the Act that is, for the purposes of the 'election '. Section 14(3) enacts that every person whose name is in the list of voters referred to in sub section (1) shall be qualified to vote at the election of a member for the division to which such list pertains. Section 15 (2) also says that the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or not qualified to vote or to be elected. The sub sections refer to the same list of voters and it is, therefore, clear that the legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is when the calendar of events was published. [66A F] Chief Commissioner, Ajmer vs Radhey Shyam Dani, ; , explained . N. P. Ponnuswami vs Returning officer, Namakkal Constituency & Ors, ; , followed Shivappa Chanamallappa jogendra vs Basavannappa Gadlappa Bankar, [1965] Mysore L.J. 289. approved. Obiter: Till the election process has commenced by the issue of a notice fixing the calendar of events. there is no reason why the designed officer should not be entitled to rectify the list of voters for a division if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area and bring the list of voters in conformity with the Electoral Roll, but once the calendar of events is published and the election process has begun it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. [67 C]

Civil Appeal No. 2994 of 1979. Appeal by Special Leave from the Judgment and Decree dated 11 7 1979 of the Patna High Court in Civil Writ Petition No. 1936 of 1979. Dr. Y. section Chitale and P. P. Singh for the Appellant. R. B. Datar and Miss A. Subhashini for the Respondent. The Collector of Central Excise & Customs, Patna, invited, by an advertisement dated 30th July, 1975, applications for filling up some posts of Inspector of Central Excise. Among those eligible for selection were "sportsmen who have represented the Universities in the Inter University Tournament conducted by the Inter University Sports Board. " The appellant, who was studying in the M. A. (Political Science) in the Mithila University, was one of the applicants and he was directed to appear for a physical test and an interview. On 12th December, 1975 the Collector of Central Excise and Customs issued a letter informing the appellant that he had been selected for appointment in a temporary vacancy of Inspector, and that he would be on probation for a period of two years. The appellant joined the post and continued therein. On 30th April, 1976 he received a letter from the Assistant Collector (Headquarters) Central Excise pointing out that he had submitted attested copies only of the sports certificates along with his application for appointment and he was directed to submit the original certificates. The appellant forwarded the original certificates. Nothing happened for some time, and the appellant continued in the post without any objection. It was almost a year later that the Assistant Collector (Headquarters) wrote to the appellant to supply details of the tournament at 732 which he had represented the University. On 27th February, 1978 the appellant referred to the Sports certificate date 28th July, 1975 issued by the Deputy Registrar of the L. N. Mithila University, Darbhanga. The original certificate had been sent by him to the Collector, along with the other certificates on 5th May, 1976. The appellant explained that he had qualified and was selected, to represent the Mithila University in the Inter University Tournament to be held at Banaras Hindu University, Varanasi, in the year 1972 but that a serious illness had intervened and prevented him from actually participating in the tournament. He pointed out that this had been made clear by him during the interview for selection before the Appointments Committee and that as he had been discharging his duties to the satisfaction of his superior officers ever since December, 1975 and had, in fact, captained the sports team on behalf of the Excise Department at Calcutta for two years, he was astonished that the question should be raised now. Another fourteen months later, on 16th June, 1979, the Assistant Collector (Headquarters) made an order, purporting to be under the proviso to sub rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules 1965, terminating the services of the appellant. The appellant then applied for relief under Article 226 of the Constitution to the High Court against the order, but the High Court has summarily dismissed the writ petition. In this appeal, the appellant contends that he fulfiled the conditions of eligibility and that there was no justification for terminating his services. The case of the respondents is that the appellant was appointed under a mistake inasmuch as the condition of eligibility required actual representation of a University in an Inter University Tournament conducted by the Inter University Sports Board and that, therefore, the appellant was not entitled to any relief against the termination of his services. Having given the matter our careful consideration, it seems to us that the respondents have proceeded on a technical view of the matter wholly unjustified by the intent behind the condition of eligibility. The condition required that the applicant should have been a sportsman who had represented his university in an Inter University Tournament conducted by the Inter University Sports Board. There is no dispute before us that the appellant did qualify, and was selected, for representing the Mithila University in the Inter University Tournament at the Banaras Hindu University in the year 1972. All that remained was that he should have participated in the tournament. Unfortunately, for him, he fell ill and was unable to do so. The fact that he fell ill, 733 and for that reason was unable to represent his university, is not disputed. There is nothing to show that but for that illness he would not have actually taken part in the tournament. It seems to us that on a reasonable view of the facts the appellant should be taken to have fulfilled the condition of eligibility. The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them. The intention was to appoint meritorious sportsmen to the posts, and that object is served if a person who had qualified and was selected for representing his university in an Inter University Tournament conducted by the Inter University Sports Board is appointed, notwithstanding that he was actually prevented from participating because of reasons beyond his control. We have no doubt that on the interpretation which has found favour with us the appellant will be entitled to a certificate of eligibility, a requirement postulated by the terms of his appointment. The appeal is allowed, the order dated 16th June, 1979 made by the Assistant Collector (Headquarters) is quashed and the respondents are directed to treat the appellant as continuing in service. The appellant is entitled to his costs throughout. S.R. Appeal allowed.

The petitioners in their writ petitions to this Court alleged that they were carrying on small scale industries for the manufacture of resin and turpentine oil and that they applied to the Government for allotment of resin for their industries but the Government referring to their policy decision of March 20, 1978 refused to make any allotment, and that they purchased raw material from the open market and managed to run their industries. They further alleged that while they were refused allotment of supply of raw materials, the State, respondent No. I made allotments to respondent nos. 4 to 16 n although most of them were not even formally registered at the time of making the impugned orders of allotment and that they were consequently adversely discriminated against, while respondent nos. 4 to 16 were favoured and as such the impugned orders of allotment were liable to be struck down " violative of Article 14 of the Constitution of India. The State, respondent No. 1 contested the writ petition, denied the material allegations of the petitioners and alleged that the allocations were made in conformity with the State Industrial Policy decision of securing the balanced economic and regional development of the State that there was a preponderance of industries in the Jammu Region, and that the industries of the petitioners as well as respondent nos. 4 to 16 were also functioning in that region. Allotments of resin were made districtwise, 110 applications were received and considered and allotment was made to respondents nos. 4 to 16. On the question whether the orders of the 1st respondent allotting quotas of resin to respondent nos. 4 to 16 were arbitrary and violative of Article 14 of The Constitution. ^ HELD : 1(i) Respondent No. 1 has not explained as to how and on what basis if any, the allotments were made by the impugned orders in favour of the new allottees respondent nos. 1 to 16 whose industries were located in the Jammu region. [847 C] (ii) Although the State Government has taken reliance on the State Industrial Policy decision, it does not appear to have followed it in practice, except in the cases of five respondents. No reasonable basis had been adopted in making the allotments in favour of the new allottees and denying the allotments to the petitioners. [84913 F] 842 2. The rule of equality does not mean mathematical equality. It permits of practical inequalities. What is needed is that the selection of quota seekers as in the instant case should have a rational relation lo the object sought lo be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14. [849 D] 3. "Equality before the Law" or "equal protection of the laws` ' within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrary and without any substantial basis. [848 H 849 A] State of West Bengal vs Anwar Ali, [19521 SCR 284 referred to.

o. 273 of 1951. Appeal under articles 132 (1) and 134 (1)(c) of the Constitution of India from the Judgment and Order dated I3th October, 1950, of the High Court of Judicature at Patna (Shearer, Ramaswami and Sarjoo Prosad JJ.) in Miscellaneous Judicial Case No. 220 of 1949. S.K. Mitra (K. Dayal, with him), for the appellant. Basant Chandra Ghosh and Arun Chandra Mitra for the respondent. May 26. The Court delivered judgment as follows: MAHAJAN J. This appeal has been preferred by the State of Bihar against the judgment of a Special Bench of the High Court of Judicature at Patna allowing the application of the respondent under section 23 of the Indian Press (Emergency Powers)Act, XXIII of 1931. It appears that the petition was argued by both the sides as it was one made under article 926 of the Constitution. The respondent was the keeper at all relevant times of the Bharati Press at Purulia, A pamphlet under 85 656 the heading "Sangram" was printed at the said press and is alleged to have been circulated in the town of Purulia in the district of Manbhum. The Government of Bihar considered that the pamphlet contained objectionable matter of the nature described under section 4 (1) of the Indian Press (Emergency Powers) Act and required the press to furnish security in the sum of Rs. '2,000, under section 3(3) of the Act by the 19th September, 1949. On the 26th September, 1949, the respondent applied to the High Court under section 23 for setting aside the above order. This application was allowed by the majority of the Judges constituting the Bench. Shearer J. was of the view that the application should be dismissed. Several objections were raised to the validity of the order passed by the Bihar Government but it is unnecessary to mention all of them. The two points which were seriously pressed before the High Court were that the leaflet did not contain any words or signs or visible representation of the nature described in section 4 (1) of the Act, and that the provisions of section 4 (1) of the Act were inconsistent with article 19 (1) of the Constitution and as such void under article 13. The High Court reached the conclusion that the pamphlet did come within the mischief of the Act. Sarjoo Prosad J., with whom Ramaswami J. concurred, on a construction of the decisions of this Court in Romesh Thapar vs The State of Madras(1), and Brij Bhushan V. The State of Delhi(2), found, though with some reluctance, that section 4 (1) (a) of the Act was repugnant to the Constitution and therefore void. Mr. Justice Shearer, however, held that the pamphlet was a seditious libel and that there was nothing in the two decisions of the Supreme Court referred to above which compelled the court to hold the provisions of section 4 (1) (a) of the Act to be void. In my opinion, Shearer J. was right in the view that there is nothing in the two decisions of this Court which bears directly or indirectly on the point at issue in the present case and that both Sarjoo Prosad (1) [1950] S.C.R.594. (2) ; 657 and Ramaswami JJ. were in error in holding that these deci sions were conclusive on the question of the invalidity of clauses (a) and (b) of section 4 (1) of the Act. Towards the concluding part of his judgment Sarjoo Prosad J. ob served as follows: "I am compelled to observe that from the above discus sions of the Supreme Court judgments, it follows logically that if a person were to go on inciting murder or other cognisable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression. Any legislation which seeks or would seek to curb this right of the person concerned would not be saved under article 19 (2) of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel nor slander nor defamation nor contempt of court nor any matter which of fends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound. I, there fore, wish that my decision on the point would sooner than ever come to be tested by the Supreme Court itself and the position reexamined in the light of the anomalous situation pointed out above. It seems to me that the words used in the Constitution Act should be assigned a wide and liberal connotation even though they occur in a clause which pro vides an exception to the fundamental right vouchsafed under article 19 (1)(a) of the Constitution Act." These observations I speak with great respect disclose a complete lack of understanding of the precise scope of the two decisions of this Court referred to above. Section 3 (3) of the Act under which the notice was issued in the present case enacts as follows: "Whenever it appears to the Provincial Government that any printing press is used for the purpose 658 printing or publishing any newspaper, book or other document containing any words, signs or visible representation of the nature described in section 4,sub section (1), the Provin cial Government may, by notice in writing to the keeper of the press . .order the keeper to deposit with the Magis trate security . " Clause (a) of section 4 (1) deals with words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable of fence involving violence. It is plain that speeches or expressions on the part of an individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be matters which would undermine the security of the State and come within the ambit of a law sanctioned by article. 19(2) of the Constitution. I cannot help observing that the decisions of this Court in Romesh Thapar 's case(1), and in Brij Bhushan 's case(2) have been more than once misapplied and misunderstood and have been construed as laying down the wide proposition that restrictions of the nature imposed by section 4(1)(a) of the Indian Press (Emergency Powers) Act or of similar character are outside the scope of article 19(2) of the Constitution inasmuch as they are conceived generally in the interests of public order. Sarjoo Prosad J. also seems to have fallen into the same error. The question that arose in Romesh Thapar 's case(1) was whether the impugned Act (Madras Maintenance Public Order Act, XXIII of 1949) in so far as it purported by section 9 (1 A) to authorise the Provincial Government "for the purpose of securing the public safety and the mainte nance of public order, to prohibit or regulate the entry.into or the circulation, sale or distribution in the Province of Madras or any part thereof any document or class of documents" was a law relating to any matter which under mined the security of or tended to overthrow the State, and it was observed that whatever ends the impugned Act may have been intended to subserve and whatever (1)[1950] section C.R. 594. (2) [1950] S.C.R. 605. 659 aims its framers may have had in view, its application and scope could not, in the absence of delimiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State, nor was there any guarantee that those authorized to exercise the powers under the Act would in using them discriminate between those who act prejudical ly to the security of the State and those who do not. Sec tion 4(1)(a) of the impugned Act, however, is restricted to aggravated forms of prejudicial activity. It deals specifi cally with incitement to violent crimes and does not deal with acts that generally concern themselves with the mainte nance of public order. That being so, the decision in Romesh Thalbar 's case(1) given on the constitutionality of section 9(1 A) of the Madras Maintenance of Public Order Act has no relevancy for deciding the constitutionality of the provi sions of section 4(1)(a) of the Indian Press (Emergency Powers) Act. Towards the concluding portion in Romesh Tha par 's judgment(1) it was observed as follows : "We are therefore of opinion that unless a law restrict ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(I A) which authorizes imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorized restric tions under clause (2), and is therefore void and unconsti tutional. " The restrictions imposed by section 4(1)(a) of the Indian Press (Emergency Powers) Act on freedom of speech and expression are solely directed against the undermining of the security of the State or the overthrow of it and are within the ambit of article 19(2) (1) 94. 660 of the Constitution. The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in Romesh Thapar 's case(1) could easily have been avoided as it was avoided by Shearer J. who in very emphatic terms said as follows: " I have read and re read the judgments of the Supreme Court, and I can find nothing in them myself which bear directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is no longer permissible. " Be that as it may, the matter is now concluded by the language of the amended article 19(2) made by the Constitu tion (First Amendment) Act which is retrospective in opera tion, and the decision of the High Court on this point cannot be sustained. Basant Chander Ghosh contended that the amendment made in article 19 (2) of the Constitution with retrospective operation was repugnant to article 20 of the Constitution inasmuch as it declared a certain act an offence which was not an offence at the time when the act was committed. This contention is untenable. The respondent is alleged to have violated the provisions of section 4(1)(a) of the Indian Press (Emergency Powers) Act which was a law in force in the year 1949 when the offending pamphlet was published. She has not been convicted of any offence so far and is not being again convicted for the same by reason of the amend ment in article 19(2). Article 20 has no application whatev er to the present case. Article 19(2) empowers a legislature to make laws imposing reasonable restrictions on the funda mental rights conferred under article 19(1) of the Constitu tion. It does not declare any acts which were not offences before as offences with retrospective effect. Moreover, in the year 1949 the respondent was not possessed of any funda mental right which could be said to have been contravened by the amendment. Though, as I have said above, the High Court is in error in the finding that the provisions of section ,4(1)(a) (1) [1950] S.C.R. 594, 661 of the Indian Press (Emergency Powers) Act are repugnant to the Constitution, its judgment has to be maintained as it is also in error in holding that the pamphlet in question fell within the mischief of section4 (1)(a) of the Indian Press (Emergency Powers) Act. The document is written in high flown Bengali language and contains a good deal of demagogic claptrap with some pretence to poetic flourish. It enunciates certain abstract propositions in somewhat involved language and it cannot be followed except with considerable effort. The High Court held that the document offended against the provisions of section 4(1)(a) inasmuch as certain parts of it contemplate a bloody and violent revolution and that the central theme that runs through the whole gamut of the offending pamphlet is that the author is anxious to bring about a bloody revo lution and change completely the present order of things by causing a total annihilation of the persons and the policies of those who according to him are in the opposite camp. Particular reference was made to the following passages in the writing which in the opinion of the learned Judges support that conclusion. The first of these passages is in these words : "Oh thou foolish oppressor, you want to cause abject terror in me with your red eyes and full throated voice do that, I am not afraid . . My pro test is against parochial national politics. "Another passage reads thus : `` Death is my secret love; poison is my drink the flames of fire are my sweet breeze; the wailing of a hundred be reaved childless mothers is just a tune in my flute; the weeping of widows at their widowhood is just a rhythm of my song. " The next passage referred to is in these terms : "I am the cremation ground. I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. Plague or famine is my great joy . . I am thirsty, I want blood, I want revolution,. 662 I want faith in the struggle. Tear, tear the chain of wrongs; Break thou the proud head of the oppressor. " Reference was also made to a passage in which the writer desires that his cries should be heard by people far and near, that his call should be hearkened far far away across the hills, the jungles, across the rivers and rivulets and all those who hear should come forward to join the ranks in destroying the oppressor and in which he claims that he is the messenger of death, that his revolutionary song signals the door of each of the listeners and signals to them to come out if they have life, if they have health, if they have courage to come and dash to pieces those who commit oppression on the mother, and he says that with the blood of those followers let the revolution grow. It winds up with an invocation to the readers in these terms : "If you are true, if you are the gift of God, if you are not a bastard, then come forward with a fearless heart to struggle against the oppressors ' improper conduct, oppres sion and injustice. We should not tolerate wrongful oppres sion. Oh, thou the people with the burning pain of thine heart burn the heart of the oppressive, high handed oppres sor. Let all wrongs, all high handedness, all oppressions, all tyrannies be burnt in the flame. " It seems to me that the learned Judges of the High Court took this writing too seriously. It did not deserve that consideration. It is some kind of patch up work, with no consistency or cohesion between its different parts. Por tions of it are unmeaning nonsense and in other parts it talks of revolution in the abstract. There is no appeal to anybody in particular or for any known or specific cause. No mention is made of any specific kind of oppression or injus tice that is intended to be remedied. The desire is. to change the face of the earth by ending all oppression, tyranny and injustice. Their is no evidence whatsoever for connecting this pamphlet with any agitation or movement at the time it was written in that locality. I have read the writing several times and I think that Mr. Ghosh is 663 right when he says that the pamphlet contains merely empty slogans, carrying no particular meaning except some amount of figurative expression or language borrowed at random from various authors with a touch of poetic flourish about it. Writings of this characters at the present moment and in the present background of our country neither excite nor have the tendency to excite any person from among the class which is likely to read a pamphlet of this nature. They will necessarily be educated people. Such writings leave their readers cold and nobody takes them seriously. People laugh and scoff at such stuff as they have become too familiar with it and such writings have lost all sting. Any non descript person who promises to change the order of things by bloody revolution and assumes the role of a new Messiah is merely the laughing stock of his readers and creates an adverse impression against himself, rather than succeed in stirring up any excitement in the minds of the readers. Rhetoric of this kind might in conceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact. In the absence of any such proof we must assume that the pamphlet would be read by educated persons in the quietness of their homes or in other places where the atmosphere is normal. I would therefore hold, in the words of my brother Bose in Bhagwati Charan Shukla vs Government of C.P. & Berar(1), that though the pamphlet in question uses extravagant language and there is in it the usual crude emotional appeal which is the stock in trade of the demagogue as well as a blundering and ineffective attempt to ape the poets, that is all, and there is nothing more in it. The time is long past when writings of this kind can in normal circumstances excite people to commit crimes of violence or murder or tend to excite any body to commit acts of violence. Again the language employed is full of mysticism and (I) I.L.R. 664 cannot be easily understood and it creates no impression of any kind on any person. In order to determine whether a particular document falls within the ambit section 4(1), the writing has to be considered as a whole and in a fair and free and liberal spirit, not dwelling too much upon isolated passages or upon a strong word here and there, and an endeavour should be made to gather the general effect which the whole composi tion would have on the mind of the public. Expressions which are the stock in trade of political demagogues and have no tendency to excite anybody, and exaggerations in language cannot lead to that result. The learned Government Advocate placed reliance on the decision of Harries C.J. in Badri Narain vs Chief Secretary, Bihar Govermnent(2). The learned Chief Justice therein held that in order to show that cer tain words fall under section 4 (1) (a) it is not necessary to show that the words tend to incite or to encourage the commission of a particular offence or offences and that it is sufficient if they tend to incite to or to encourage the commission of cognizable offences of violence in general. In that case, a poem entitled "Labourers, the mainstay 'of the world" began by emphasising that labourers are the mainstay of the present world and then proceeded to describe their unfortunate and pitiful lot. In a subsequent portion the author stated that though speechless today, when organized, the labourers will be as powerful as millions and this portion of the poem ended with these words: "Why are you helplessly tolerating the exploitation of your masters." The remaining lines were as follows: "Labourers, raise now the cry of revolution. The heavens will tremble, the Universe will shake and the flames of revolution will burst forth from land and water. You who have been the object of exploitation, now dance the fearful dance of destruction on this earth; truly, labourers, only total destruction will (2) A.I.R. 1941 Pat.132 665 create a new world order and that will bring happiness to the whole world. " It is quite clear that here an appeal was made to la bourers inciting and encouraging them to commit acts of violence. The words used certainly tended to achieve that result. They were no empty slogans or abstract propositions. It had one consistent and coherent purpose, i.e., to excite labourers and to bring them into action. Any observation made about this writing can have no apt application for the determination of the present case. The learned Chief Justice in the concluding part of the judgment very pertinently pointed out that a commonsense interpretation must be given to the document complained of, the question to be answered always being, what impression will the documents or words give to a man of ordinary commonsense. My answer to this query in the present case is that the document read at first sight is not intelligible unless it is explained to that man of ordinary commonsense by a learned person and hence it can by itself create no impression of any kind on such a person. After the writing is explained to such a man, he will merely laugh at it and throw it in the waste paper basket without taking it seriously. He will refuse to believe that a person of this kind can create a new world order by appealing to a bloody revolution. As I pointed out in my judgment in Harkrishan Singh vs Emperor(1), the use of such words as appear in this document creates no impression on the mind of any reasonable reader. That case dealt with clause (d) of section 4 (1), but the principle underlying it also applies to the construction of writings which are alleged to fall under section 4 (1) (a). I do not mean to suggest or to lay down as a general propo sition that some of the words used in the pamphlet in ques tion in the context of any other writing would not fall within the mischief of section 4 (1) (a). Certain parts of the pamphlet, if read as isolated passages, may have the tendency to excite people to commit (I) A,I.R, 666 crimes of violence but that is not the effect if the pam phlet is read in its entirety. The result is that I would dismiss the appeal but in the circumstances would make no order as to costs. The State Government has succeeded in its contention that sec tion 4 (1) (a) of the Act is constitutional and that was the real ground on which it came to this Court. PATANJALI SASTRI C.J. I agree with the judgment just delivered by my learned brother Mahajan J. and have nothing to add. MUKHERJEA J. I concur in the judgment delivered by my learned brother Mahajan J. and I would like to say a few words, regarding the publication itself which led to the demand of security by the Government under the provision of the Indian Press (Emergency) Act. The point that requires consideration is, whether the words contained in the impugned publication are of the nature described in section 4 (1) (a) of the Act; or in other words whether they incite to or encourage or tend to incite to or to encourage the commission of any offence of murder or any cognizable offence involving violence. It is well settled that to arrive at a decision on this point, the writing is to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there, and that the court should take into consideration what effect the writing is likely to produce on the minds of the readers for whom the publication is intended. Account should also be taken of the place, circumstances and occa sion of the publication, as a clear appreciation of the background in which the words are used is of very great assistance in enabling the court to view them in their proper perspective. The leaflet in question is entitled "Sangram" or struggle. It is written in high flown Bengali prose with a large mixture of poetic expressions borrowed at random from the writings of some well known 667 poets of Bengal. The object of the writing as far as could be gathered from the document is to give a poetic or ideal istic picture of what is meant and connotated by "struggle"or revolution. The aim and end of "struggle ", as stated in the leaflet, is to wipe outs, "oppression, injus tice or wrong" which is "pervading all over the world from the past to the future"; and it is only after all wrongs, injustice and oppression have perished that a new world could be built up. This seems to be the main or central theme of the composition, clothed, though it is, under much incoherent talk and seemingly meaningless utterances. There is no indication throughout the writing as to what kind of oppression, injustice or wrong the author had in mind. Far from referring to grievances of any specific character, the writer does not even hint at such general causes of discon tent as political inequality, economic exploitation or class warfare which are the subject matter of agitation in many parts of the world. The leaflet does not give indication also of any unpopular measure or act of injustice affecting the minds of the people in the particular area where it was published and within which it was intended to be circu lated. In one part of the document the following words are found to occur: "If mother be true, let no disgrace spread in the name of the mother. If mother tongue be equal to mother, then the said language is your most revered goddess. Do not allow disgrace to spread in her name". It is not the case of the Government and there is no statement or affidavit to that effect, that the passages here have any reference to the language controversy which agitated and probably is still agitating this particular district. In another part of the document the expression "narrow parochial politics" has been used, but here again the Government has not made any attempt to explain, what this expression could, in the particular context, mean or refer to. As no acts of injustice or oppression are actually mentioned in the document, it is difficult to say who the "oppressors" are, whose "proud heads" the author asks his 668 readers to break. It is quite clear that the "oppressor" mentioned here is neither the Government nor the party in power, nor has it any relation to any particular class of persons or a sect or community which might be harassing others and trampling upon their rights. It may be, that to attract the operation of section 4 (1) (a) of the Indian Press Act, the incitement to murder or violence need not be specifically directed against particular individuals or class of persons; but when the whole talk is about injustice or oppression in the abstract, which is stated by the author to be in existence from the beginning of time and when in hyperbolic language a hope is expressed of establishing a better and a cleaner world through struggle, sweat and blood, the words used may not improperly be looked upon as an effusion of poetic fancy which, having no relation to actual facts can have very little potency for doing mis chief. I will now proceed to examine the contents of the pamphlet in detail. The writer begins in an affected poetic vein and de scribes, in language, to which it is difficult to attach any rational meaning, what "struggle" or revolution is. The "struggle" which is personified in the article introduces itself in the following manner: "I am not wealth, nor popular strength, not the people nor fame;. I am not joy nor a brag, nor the timid look of the beloved 's eyes . I am not mother 's affection, nor sister 's love". If these words convey any sense, they can only mean that the struggle or revolution which the writer wants to depict is something different from what we ordinarily associate with our social life and happiness; it is a negation of all natural human feelings and sentiments. The next paragraph says in equal enigmatical language what "Sangram" or "strug gle" actually is. "I am old antiquated history" thus the article proceeds; " I am time eternal, I am the future, the present and the past, in my heart is written the story of the past, the problems of the present and the voice of the 669 future". I do not know whether this is a poetic way of depicting the entire life process which is said to lie through struggle and guide our evolution in this planet. Struggle, according to the author, is coeval with time and eternity. In the next paragraph the writer passes on to say with many repetitions of the word "wrong" that "it is wrong which is pervading all over from the past to the future", and it is this wrong that is to be righted by the struggle. The struggle here is likened for reasons best known to the author to a piece of torn grass in the middle stream of a turbulent river, and to a grain of dust thrown in the face of a cyclone. "It is dishonour, Unhappiness, endless pain. " It is again likened successively to the frown of the be loved, to famine, storm and evil days. The call is sent to everybody to come on "where the sky is cracking and the endless rough and thorny path is shrouded in darkness" and assist in building up a new world. Many of the expressions used here are taken verbatim from the writings of some well known Bengalee authors, though they sound nothing but a rigmarole in the present context. The next paragraph begins with the word "revolution". Struggle is revolution and through struggle and revolution the world is to be built anew. It is then said that "death is my darling and death is the only truth in this world". If one has to die, there is no sense in dying of illness. Let a man choose an honourable death by standing against oppressors. Quite abruptly the author brings in the name of Sri Subhas Chandra Bose in the midst of this talk and asks his readers to listen "far far away across the hills, across the jungle, across the rivers and rivulets the call of Subhas Chandra Bose, the greatest revolutionary leader of the world". The people are asked not to stop until the objective is attained. Again it is said "I am struggle, I am revolution . I am a Hindu, I am a Mussalman, I am a Christian, I am a Jew, I am a Keduin, I am severed from all religions by the fruits of my action in previous births". Without the least attention to any sequence of thought, immediately 670 after this, the imaginary oppressor is addressed by the author as follows: "Oh you foolish oppressor you want to terrify with your red eyes, I fear not." The author, or rather the personified "struggle" which purports to speak, then repeats the well known words of poet Tagore and says that he does not seek salvation through renunciation; he wants that salvation which lies in joy amidst innumerable dangers and difficulties. The idea of finding joy in all that is hated, avoided and dreaded in this world is elaborated in the passages that follow. "Death" it is said "is my secret love, poison is my drink, the flames of fire are my sweet breeze, the cry of childless mothers a tune in my flute and the weeping of widows a rythm of my song". In this vein the author goes on conjuring up all the uncanny and weird things in the world and associat ing them with struggle. "I am not joy, I am the remnant of the dying cries . I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. I want blood . . Break the proud head of the oppressor. I bathe in flames . . . Thunder is my kiss of affection . . I do not understand myself. I do not know myself. I do not recognise myself still I want revo lution, still I want struggle". The learned Judges of the High Court laid very great stress on these passages which in their opinion constitute a direct incitement to bloody revolution; and that is also the line of argument adopted by Mr. Mitter who appeared before us on behalf of the State. It has been argued by Mr. Ghosh appearing for the respondent that the "struggle" which the author has depicted and which he aims at is a non violent struggle and the blood that is to be shed is the blood of those who are called upon to resist oppression and injustice. On the other hand, it is argued on behalf of the State that the passages quoted above can only mean that it is a bloody and violent revolution which could carry men to their desired end. In my opinion, neither of these contentions furnish to us the proper method of approach to the question which requires 671 decision in the present case. We would have to look at the article as a whole and focus our attention on what can be regarded to be its central theme or purpose. As has been said already, what the writer wants is to draw an ideal picture of "struggle" or revolution quite unconnected with any particular place, or any particular political or social environment. Injustice or oppression exists, according to the author, from the very dawn of time and so also does struggle or revolution. It is an integral part of the world process and is a sort of irrational or blind impulse. This is expressed by saying "I do not understand myself,I do not recognise myself, still I want revolution". In painting death or war, the artist would naturally choose some uncanny associations. The trappings of revolution, as the author paints it, are all the fearful and hideous things in this world. It is linked up with thunder and storm, fire and devastation, cataclysm, famine, danger, destruction and death. It is immaterial so far as this ideal picture is concerned whether the blood that is spoken of is the blood of the oppressor or of the oppressed, and whether the strug gle is violent or pacific. The goddess Kali in the Hindu mythology is the goddess of destruction and death, but she is the benign goddess also whose protecting hands ward off all oppressions, danger and calamity. That is the reason why revolution or struggle is assimilated to this goddess. It cannot be denied that in painting this picture of "strug gle" or revolution the author has used very strong words; but they would not be unnatural if it is only an ideal picture that the author really desired to paint. If howev er, it can be shown that under the cloud of these general enigmatical words something concrete and tangible lies hidden, that the "oppression" and "oppressor" are not imagi nary abstractions but are real things not unknown to the people to whom the article is addressed and there is in fact a grievance agitating the popular mind, no matter whether it is well or ill founded, against which the author desires to inflame public opinion;then even though he uses veiled or covert language, there 672 can be no doubt that the article would come within the purview of section 4 (1) (a) of the Indian Press Act. But the difficulty is that the Government has not made any attempt to establish any of these facts. Without knowing the attendant circumstances and the actual background of the publication, it is not possible for us to ascertain the real intention that lies behind the writing; and absolutely no materials have been placed before us by the Government which might enable us to find out what in reality was the sub stance behind this camouflage of words, if camouflage it actually is. The rest of the article proceeds in the same hyperbol ic and enigmatical style There is repetition ad nauseam of the same stock phrases and expressions. It goes on to say "I am the messenger of death. I am untouchable, I am vague, I am queer, 1 am nightmare, I am robber, I am enemy, I am un known. 1 am not Falgoon with its sweet smelling flowers; I am eternal separation, I am restlessness". I am extremely doubtful whether expressions like these would not, to an ordinary reader, appear to be anything better than the ravings of a mad man. I will cull a few more expressions which occur subsequently and which loftily this impression. "I see struggle on my darling 's face, I see struggle in the honey of flowers. I am storm, I am the Deepak Ragini. I am misfortune. I am cry of distress, I am jealousy, I am evil days. " The concluding portion of the article reads as follows: `` Let me speak the last word: If you are true, if you are gift of God, if you are not a bastard. then come forward with a fearless heart, struggle against the oppressor 's improper conduct, oppression and injustice. We shall not tolerate wrongful oppression. Oh, the people, with the pain of your heart burn: the heart of the oppressive high handed oppressor, let all wrongs, all high handedness, all oppres sions, all tyrannies be burnt in the flame. " 673 There was a good deal of discussion before us as to whether these passages hint at a violent or a non. violent struggle. It may be capable of either interpretation. but as I have said already, that by itself would not afford a decisive solution of the question before us. It is also not much material to consider whether the author wants that "Jealousy and malice" which he has referred to at the end of the article, are to develop and spread or they are to be transformed into innocuous and sweet smelling flowers. This is certainly a matter upon which difference of opinion is possible. After all, we are to see what impres sion the article read as a whole would produce upon ordinary people. An ordinary reader is not expected to seek the assistance of an interpreter in trying to find out the true meaning of the words used. As has been said already, many of the expressions used here have been taken verbatim from the writings of certain noted Bengalee authors. They are stock phrases current in Bengal and amongst the Bengali speaking community elsewhere. If it strikes the reader that what the author wanted was to pass himself off as a noted writer by sheer plagiarism, then whatever else may be said about the article, it certainly does not come within the purview of section 4 (1) (a) of the Press Act. Taking the article as it is, it is nothing but a tissue of high sounding and meaningless words and whether the author wanted to imitate some of the welt known poets of Bengal in attempting to give a poetic description of "strug gle"or revolution or wanted to give himself the pose of a liberator of mankind, out to wipe out the last vestiges of oppression and injustice from the face of the earth, no rational person would take him seriously and would look upon this composition as the vapourings of a deranged brain. If, on the other hand, the whole thing is a clever ruse resorted to with the object of inflaming the popular mind against certain persons or authorities, and although only general and vague words are used, the words have their meaning and significance to those 674 who are acquainted with the actual situation, it was incum bent upon the Government to clear up these matters and present before us the background and the context without which no meaning could be attributed to this species of empty verbiage. As Government did not discharge the duty that lay upon them, I am clearly of opinion that no security order could be passed against the respondent under the provision of section 4 (1) (a) of the Press Emergency Act. DAS J. During the course of the arguments I enter tained some doubt as to the innocence of the meaning and implication of the pamphlet in question, but, in the light of the judgments of my learned brothers Mahajan J. and Mukherjea J., which I have had the advantage of perusing since, I do not feel that I would be justified in dissenting from the construction they have put upon the language used in the pamphlet. I accordingly concur in their conclusion. Bose J. I agree with my brothers Mahajan and Mukher jea. Appeal dismissed.

Section 4 (1) (a)of the Indian Press (Emergency Pow ers) Act (XXIII of 1931) is not unconstitutional as the restrictions imposed on freedom of speech and expression by the said section are solely directed against the undermining of the security of the State or the overthrow of it and are within the ambit of article 19(2) of the Constitution. Romesh Thapar 's case ([1950] 655 S.C.R. 594]) and Brij Bhushan 's case ([1950] S.C.R. 605)do not lay down any wide proposition that restrictions of the nature imposed by section 4 (1) (a) are outside the scope of article 19 (2) as they are conceived generally in the interests of public order. At any rate, the amendment made to article 19 (2) by the Constitution (First Amendment) Act which is retro spective in operation makes the matter clear. In order to determine whether a particular document falls within the ambit of section 4(1) the writing has to be considered as a whole in a fair, free and liberal spirit, not dwelling too much on isolated passages or upon a strong word here and there, and an endeavour should be made to gather the general effect which the whole composition would have on the minds of the public. Expressions which are the stock in trade of political demagogues and have no tenden cy to excite anybody, and exaggerations in language, cannot lead to that result. Rhetoric of this kind might in con ceivable circumstances inflame passions, as for example, if addressed to an excited mob, but if such circumstances exist it is for the Government to establish the fact.

Appeal No. 158 of 1967. Appeal by special leave from the judgment and order dated August 5, 1966 of the Rajasthan High Court. in section P. Civil Regular Second Appeal No. 222 of 1964. section T. Desai, P. C. Bhartari, J. B. Dadachanji and Pukhraj Singh, for the appellant. S.V. Gupte, K. K. Jain and H. K. Puri, for respondents Nos. 1 to 9. That Judgment of the Court was delivered by P.Jaganmohan, Reddy, J. This Appeal by Special Leave of this Court is against the Judgment of a Single Judge of the Rajas 838 than High Court affirming the Judgment and decree of the, District Court with certain variations. Respondents 1 to 9 filed a suit against the Appellants and Respondents 10 and 11 and two others for a declaration that they have been carrying on and are entitled to carry on Darshan, Prakshal and Poojan etc. of the idol of Adeshwarji, the first Tirthankar in the Temple named after him at Paroli without interference according to the tenets observed by the Digambri Sect of the Jain religion. ' The said Temple of Shri Adeshwarji is said to have been in existence for 200 years while, the Respondents aver that the inscriptions on it bear Vikram Samvat 1510 (1454 AD). The Plaintiffs further alleged that the Temple was constructed and the idol, was consecrated according to and by the followers of the tenets of the Digamber sect; that the Plaintiffs and the other followers of the Digamber Sect have been performing Darshan, Prakshal and Poojan of the said idol according to their tenets every since the Temple was founded; that on the 23rd of December 1949 the Defendants attempted to convert the said idol into the idol of Swetambri Sect by putting Chakshus (artificial eyes ) thereon, but were prevented from doing so by a strong opposition of the followers of the Digamber Sect; that thereafter some temporary arrangements were made between the followers of the two Sects who agreed to maintain the status quo until a decision of the Civil Court on the rival claims of the parties was given; that in disregard of the temporary settlement and without getting the rights in the Temple adjudicated upon by the Civil Court, the Defendants made arrangements to put Dhwajadand and Kalash on the said Temple according to their tenets,, and that they also further learnt that the Defendants were intending to enclose the said idol by putting up doors and locks with the. object of interfering with and obstructing the free exercise by the Digamberies of their unfettered rights to perform Poojan, Prakshal and worship of the said ideal according to their tenets. On these allegations it was prayed that the Defendants be restrained by a permanent injunction from (i) erecting the Dhwajadand, and putting up Kalash; (ii) enclosing the idols by putting up doors and locks; or in any manner altering the nature and shape and appearance of the idols installed in the said Temple; or directly or indirectly doing any act or thing which may have the effect of wounding the religious susceptibilities and sentiments of the followers of the Digamberi Jain Sect; and (iii) from interfering with the free and unfettered rights of the Plaintiffs of performing Darshan. Prakshal and Poojan and other rites according to the tenets of Digamber Jain Sect. 839 The Defendants did not deny that they,intended to put the Netras ' but said that they did so because the Netras which the idol had even before the said date having been damaged and fallen out, new Netras were put up. They further claimed that since its existence the Temple of Adeshwarji has been in the possession of the Defendants who have been in exclusive management of the Temple and its property; that the Plaintiffs never used to do Poojan or Prakshal in the Temple nor had they any Tight thereto, and that when in 1949 there was a dispute between the parties a temporary arrangement was made but the Defendants did not admit any right of Plaintiffs to Poojan. It, was further averred that the said idol and the Temple is in all respects Jain Swetambri Sect, that it has been so used and described in all the historic records from time to time and that the Civil Court had no jurisdiction to decide the religious rights of the parties nor is it a dispute of a civil nature. On these pleadings issues were framed on 3 12 55 but subse quently after the evidence in the case was recorded and having regard thereto fresh issues were framed in substitution of the former ones on 4 6 57 but thereafter no evidence was led by either party. The controversy between the parties as is evident from these issues was, as to which Sect of the Jains the main idol of Adeshwarji belongs, which Sect has constructed the upper portion of the idol referred to and the nearby portion of the temple; under what tenets have the followers of the Sects, Digamber and Swetamber, performed Darshan, Prakshal and Poojan of the idol of the temple referred to and can any Sect change those previous tenets , whether the Notras (artificial eyes) of the idol, Bhujband and Dhwajadand over the temple existed before and if not, can they be placed and inserted now; and whether the Temple is in possession and under the management of the Defendants alone from the time it came into existence. The Civil Judge of Bhilwara decreed the suit of the Plain tiffs, against which the Defendants appealed. The District Judge, however, allowed the appeal and dismissed the suit on the ground that in his opinion no question of any right to property or office was involved in the suit ' and consequently the plaintiffs suit was dismissed with costs. On an appeal from this Judgment the High Court allowed the Appeal holding that inasmuch as the allegations in the plaint relate to an assertion of a right of worship and an interference with that right, a dispute of civil nature arises which is, clearly cognizable by a Civil Court. In this view the case was, remanded to the District Judge for determining the appeal on merits. Leave to Appeal was also refused. 840 After remand the District Judge confirmed the Judgment and decree of the Trial Court with certain variations. Against this Judgment the Appellants filed an appeal to the High Court and the Respondents filed cross objections. The High Court affirmed the Judgment of the District Judge except for that part of the decree directing the Appellants to keep open the doors of the Temple between 8.30 and 9.30 each morning to enable the Respondents to worship without interference, which, however, was modified to enable Respondents to worship at the Temple between 6 a.m. to 9 a.m. every morning, during which time the Temple was not to be locked. It further directed that if the Swetambaries wanted also to worship during this period without disturbing the Digamberies they had the liberty to do so. The learned Advocate for the Appellants Shri section T. Desai urged several contention before us namely; (i) the High Court was in error in not deciding the ownership of the Temple or of the idol; (ii) that it should have held that a presumption of ownership would arise having regard to the concurrent findings that the Swetamberies were in management and possession of the Temple; (iii) that the reliefs claimed make it clear that the dispute is not of a civil nature for in any view of the matter the Courts were in error that placing of the Dhwajadand and Kalash on the Temple changes the nature of the temple; (iv) that the High Court should not have accepted the cross appeal fixing 3 hours time for the worship of the Digamberies Sect; (v) that the Judgment of the Trial Court is wholly vitiated because the Trial Judge not having accepted the evidence based his findings on his own inspection. Before as deal with these contentions, it is necessary to detail the findings of the Courts below The Trial Court while decreeing the Plaintiff 's suit held that though it was not proved as to who built the Temple of Adeshwarji initially, both Digamberies and Swetamberies worshipped in the said Temple; that the management and the possession of the Temple was with the Defendants Swetamberies for a long time, that the Swetamberies were not entitled to put artificial eyes or to put Dhwajadand or Kalash on the Temple; and that the Defendants were trying to interfere with the rights of the Plaintiffs ' and were making alterations to transform the character of the Temple. In this view the Trial Judge gave a declaration in favour of the Plaintiffs against Defendants in their personal capacity as well as representatives of the Jain Swetamberies Sect that the Plaintiffs or the followers of the Digamberi Sect have been performing Prakshal, Poojan and Darshan and are also entitled to do so in future. He also issued a permanent injunction against the Defendants in their personal capacity as well as representatives 841 of the Jain Swetamberi Sect restraining them from changing the shape and appearance of the idol by putting Netras (artificial eyes), Armlets, and Mukat, from erecting Dhwajadand and putting Kalash on the Temple and putting locks on the shutters of the Temple. The Appellants were further directed not to restrain the followers of the Jain Digamber Sect from performing Darshan, Poojan and Prakshal according to their tenets. After the remand Appellants urged before the District Judge the following contentions : (1)That the Temple belongs to Swetamber Sect and the Plaintiffs are entitled to have Darshan only of the idol, otherwise they have got no right to worship it according to their tenets; (2) That the idol being Swetamberi, the Defendants are entitledto put artificial eyes in the idol, Dhwajadand and Kalash on them Temple; (3) That the Defendants having been managing the Temple for the last so many years, their management cannot be interfered with it for the betterment of the idol, it is kept under lock, it cannot be said to wound the sentiments and religious feelings of the Plaintiffs. The District Judge held on the first contention that though the Temple is admittedly an old one there is not an iota of evidence as to who constructed the Temple originally; that the Appellants have been in management and possession of the Temple, which fact was not really challenged by the Respondents, though this by itself does not imply that the Temple is a Swetamberi Temple. It was also contended that the Respondents had no right to worship the idol but can only have Darshan. This contention was also rejected on a review of the evidence led by both parties, and also, by relying on Exh. 1 which embodied a compromise between the two Sects under which the right of the Respondents to worship the idol was specifically admitted. On the second point urged before him the District Judge held that the Appellants case that there were eyes already in the idol, but as they got damaged they wanted to replace them is not substantiated by the evidence led on behalf of the Appellants themselves. It also held that an attempt was made by, the Swetamberies in 1949 to install the eyes in the idol and that as most of the Appellant 's witnesses admitted that though Dhwajadand was offered on certain occasions which were retained by the Oswals (Swetamberies) there was no Dhwajadand and Kalash on the temple itself. On the third point it was held that the Appellants, who were in management and possession of the Temple for the last so many 842 years, have a right to lock the main Temple, to prevent it from being defiled, which does. not in any way interfere with the right of worship of the Respondents or any other person on their behalf. This being so ' the Trial Courts decree excepting for restraining the Appellants to lock the Temple was affirmed subject to the further,direction as already noticed keeping the Temple open for worship of the Respondents and the Digambaries Sect between 8.30 and 9.30 a.m. When the appeal and cross objections were pending before the High Court the Appellants filed an application under Order 41, Rule 27 of the Civil Procedure Code for recording the evidence of Shri Satya Prakash Srivastava, Director of Archaeology and Museum, Rajasthan to establish the denominational identity of. the idol in the Temple. It was stated in that, application that since he District Judge had remarked that the parties had not produced sufficient evidence and it was not possible to come to any conclusions regarding the nature of the idol as to whether it is Swetamberi or Digamberi, the petitioner had moved the Direc tor of Archeology who after a thorough examination came to the conclusion that the idol was Swetamberi. In view of this Report it was prayed that the said Director be called in evidence and be examined. In the alternative it was prayed that the case be remanded to the Trial Court for allowing the parties to lead additional evidence so that effective adjudication can be made. The High Court however, did not feel the need for any additional evidence as the case could be disposed of on the material on record. In this view it dismissed the application. Even before us the learned Advocate for the Appellant tried to persuade us to look into that Report and urged that the evidence of the Director was necessary and ought to have been allowed to be adduced. In view of the concurrent findings of all the Courts on certain material aspects of the case to which we shall presently refer, it is possible to determine the controversy between the parties, as such we agree with the High Court that no additional evidence is required at this stage, though the parties could have led better evidence in the initial stages itself. It was further contended on behalf of the Appellants that the Respondents suit was not maintainable because it did not involve a dispute of a Civil nature. Respondents ' learned Advocate though he first indicated that he would raise a preliminary objection to this contention being urged because when the High Court set aside the Judgment of the District Judge and remanded the case to be decided on merits holding that the suit was maintainable as it raised a dispute of a civil nature, the Appellants ought to have appealed to the Supreme Court. The learned Advocate for the Appellants however contends that the remand order of the 843 High Court did not finally dispose of the rights of the parties as such it is open to him to urge in this appeal that the suit was not maintainable on the ground that it does not raise any dispute of a civil nature. Though the preliminary objection was not subsequently pressed even on the merits, the learned Advocate for the Appellant is unable to satisfy us that the suit is not of a civil nature. From the pleadings and the controversy between the parties it is clear that the issue is not one which is confined merely to rites and rituals but one which effects the rights of worship namely whether the Swetamberies by placing Chakshus, Dhwajadand and Kalash according to their tenets or by locking the temple could preclude the Digamberies from worshipping in accordance with their tenets. It is admitted that the Digamberies will not worship the idol which is not Nirakar ' or which has Chakshus. If the Digamberies have a right to worship at the temple the attempt of the Swetamberies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple. These findings clearly establish that the Appellants interfered with the rights of Digamberies to worship with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code. This position is well established. If authority was needed we may refer only to two cases. The Privy Council in Sir Seth Hukam Chand & Ors. vs Maharaj Bahadur Singh & Ors.(1), had to deal with the practices observed by Digamberies and Swetamberies on the Parasnath Hill which is considered to be sacred by. both the Sects but in respect of which the Digamberies objected to the continuous employment of human beings on the Hill and against building thereon of Dwellings necessarily involving according to their tenets of a sacrilegious pollution and desecration of the sacred hill, while the Swetamberies had no such belief. Sir John Wallace delivering the opinion of the Board observed :"These are matters for the Jain themselves and the Civil Courts are only concerned with them in so far as they are relevant to questions of civil right such as an alleged interference with the Plaintiffs rights to worship on the hill, and in that case the issue must be not whether the acts complained of are in accordance with orthodoxy or with previous practice, but whether they do in fact interfere with the plaintiff 's rights of worship". Again this Court in Nar Hari Sastri and Others vs Shri Badrinath Temple Committee (2 ) was concerned with the rights of the Deoprayagi Pandas to enter the Badrinath Temple alongwith their Yajmans or clients, which it was claimed the Pawal or the Trustee denied and threaten to obstruct the said Deoprayagi (1) (2) ; 844 Pandas from entering the precincts of the Temple along with their Yajmans or from assisting the pilgrims in the matter of Darshans etc. inside the Temple. The Defendant however, asserted that it was neither necessary nor desirable that the plaintiffs should be allowed to accompany their Yajmans or clients into the Temple, as he had himself made adequate arrangements for the Darshan and worship of the pilgrims and that as the sole Trustee and manager of the Temple he had the right to regulate entry into the Temple so the over crowding might be avoided and order maintained inside it. Mukerjea J, (as he then was) speaking for the Court dealt with this contention in the following passage "The true position therefore is that the Plaintiffs ' right of entering the temple along with their Yajmans is not a precarious or permissive right depending for its existence upon the arbitrary discretion of the Temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the Temple Committee may impose in good faith for maintenance of order and decorum within the Temple and for ensuring proper performance of customary worship. In our opinion, the Plaintiffs are entitled to a declaration in this form. " It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier dispute which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the Appellant to the maintainability of the suit is not well founded. One other objection which the learned Advocate for the Appellants urged at the outset is that the findings of the Trial Judge are vitiated because he did not rely on the evidence on record but decided to which Sect the idol in dispute belongs, only on what he found on his inspection of the idol and the Temple which cannot be evidence in the case, without his being subjected to cross examination. It is further contended that even if what has been stated in the Judgment is what the Trial Judge had observed in his inspection there is nothing to show that he had drawn up inspection notes and made them part of the record as required under the law. The contention that the Trial Judge had given his findings mainly on the observations made during his inspection in the first place is based on insufficient appreciation of what was really observed when dealing with the question as to 845 which Sect the idol in dispute belongs. It was observed in the Judgment that most of the witnesses produced were non Jains and therefore, their evidence does not carry much weight to establish to which Sect the idol belongs. After stating that the remaining witnesses of the parties have given statements in favour of their party the Trial Judge said that these statements also cannot be much relied upon. The decision of his case is based mostly on the site inspection and the evidence on record. Even while giving the findings the Trial Judge remarked that the evidence led by the Plaintiff appears to be correct. These observations themselves show that the evidence on record was an element in the formulation of the Trial Courts Judgment buttered by the observations of the learned Judge during the site inspection. There is therefore, no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection. It is also evident from a narrative given in the Judgment of what was noticed during the inspection that the Judge had inspected the site on two occasions once on 24 3 1956 and again a year and two months thereafter on 23 5 1957. The details given by him could not have been given if he had not made some inspection notes. It would also appear that at the time of the inspection Council for the Plaintiffs and Defendants were present because when giving a description of the idol of Neminathji in the Swetemberi Jain Temple when it was noticed that some portion of the idol under the waist and naval is raised and is like a line, the Council for the Plaintiffs pointed out to him that mark denoted the wearing of a loin cloth while the Counsel for the Defendants said it was the mark of an Artist. Again in respect of the observation that on the back side and at the lower portion of the navel some portion is raised, the Counsel for the Plaintiffs had pointed out to the loin cloth, while the Counsel for the Defendants said that it has been engraved by an Artist without any sense. We are satisfied that the description given by the learned Judge of the idols in the Adeshvarji Temple and the Temple of the Swetambaries were observations made during an inspection at which both the Plaintiffs ' and Defendants ' Advocates were present and that there must have been notes also in respect of the inspection made on both the occasions. The Appellants had at no time made a grievance either to the District Judge or to the High Court or even before this Court except during the stage of arguments that there were no inspection notes nor that the inspection was made by the Judge behind the back of the parties. if these objections had been raised earlier the Respondents would have had an opportunity of showing that there were inspection notes. The Judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge. We must, 846 therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before us. It was contended by Shri Desai that unless the ownership of the Temple is established or that the idol belongs to the Digamberies no injunction can be given nor the Plaintiffs permitted to worship. It is argued that in the plaint the Respondents wavered that the idol is a Digamberi idol and if they have failed to prove it then their right to worship fails. At any rate the argument proceeds that the High Court was in error in not deciding the ownership of the Temple or of the idol. We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or of the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers of the Digamberi Sect and that the Plaintiffs and the other followers of the Digamberi sect have been performing Darshan, Prakshal and Poojan of the said deity in the said Temple for a considerable number of years past and really ever since the Temple was founded. There is therefore, force in the contention of Shri Gupte, learned Advocate for the Respondents that having regard to the concurrent findings of the Courts below that the idol was Nirakar ' (naked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also held as had already been noticed that though it is not possible to say when the Temple was constructed and the idol consecrated it was an ancient Temple and that both the Digamberies and the Swetamberies worship the idol. It is not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat( the Swetamberies would worship a Digamberi idol without these and hence the right to worship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts. Even the Defendants ' witnesses substantiate these findings. We would refer to only two of these witnesses. Shri Suwa Lal D.W. 4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or Kalash on the Temple and does not know whether the idol belongs to Oswals or Saravagis (Digamberies). D.W. 3 Shri Pokhar a barber of Oswals also supports this witness. That the Digamberies had a right to worship is also borne out by exhibit 1 dated 847 23 12 49 which was a compromise entered into between Swetam beries and Digamberies at the time when the Swetamberies attempted to put Chakshus in the idol. No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective rights, but there was never any question of either Sect not having the right to worship the idol. The dispute had arisen only as to whether Swetamberies can fix Chakshus in the idol. 1 states as follows: "We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perform Poojan so they can mark saffron Tiki ' and have Darshan and come back. Digambries will not performs Prakshal, Poojan. Swetamberies will continue incurring expenses as usual. The idol shall remain backed (Nirakar)". The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Sec. 110 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownerships of the Temple is in the idol and therefore, the question, of presumption under Sec. 110 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to, come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would denomination change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by erecting their Dhwajadand or Kalash over the Temple. 848 Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper. In this view the appeal fails and is dismissed with costs. R.K.P.S. Appeal dismissed.

After catches of prawns made from time to time were brought to the respondent 's premises, a casual and irregular group of women and girls of the locality came at their convenience to do the peeling, washing, etc. at piece rates. There were no.specified hours of work and after finishing their work, the workers would go on to do similar work at other premises in the locality. The respondent 's conviction under section 92 of the FactoriesAct for, inter alia, using his premises as a factory without obtainingregistration, etc. was set aside in revision by the High Court on the viewthat the workers in question were not "workers" within the meaning of the . On appeal to this Court, HELD:The High Court had rightly decided that the workers in the present case were not "workers" covered by section 2(1) of the . [714 C] Dharangadhara Chemical Works Ltd. vs State of Saurashtra, A.I.R. , Chintaman Rao & Another vs The State of Madhya Pradesh, ; ; State of Kerala vs V. M. Patel, [1960] K. L. J. 1524 and Birdhichand Sharma vs First Civil Judge, Nagpur; , ; applied. Obiter : After this Court had laid down a test to be applied for determining who were "workers" within the meaning of the , the High Court should have treated the question of principle as no longer open. The High Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134(1) (c) of the Constitution. [714 D]

Appeal No. 1113 of 1970. Appeal from the judgment and order dated April 3, 1970 of the Bombay High Court in Company Appeal No. 1 of 1970. V. M. Tarkunde, R. L. Mehta and 1. N. Shroff, for the appellant. M. C. Chagla and section N. Prasad, for Creditors Nos. 1, 3 to 6 and 10. A. K. Sen and E. C. Agrawala, for creditor No. 9. The Judgment of the Court was delivered by Ray, J. This is an appeal by certificate, from the judgment dated 3 April, 1970 of the High Court of Bombay confirming 203 the order of the learned Single Judge refusing to wind up the respondent company. The appellants are a partnership firm. The partners are the Katakias. They are three brothers. The appellants carry on partnership business in the name of Madhu Wool Spinning Mills. The respondent company has the nominal. capital of Rs. 10,00,000 divided into 2000 shares of Rs. 500 each. The issued subscribed and fully paid up capital of the company is Rs. 5,51,000 divided into 1,103 Equity shares of Rs. 500 each. The three Katakia brothers had three shares in the company. The other 1,100 shares were owned by N.C. Shah and other members described as the group of Bombay Traders. Prior to the incorporation of the company there was an agreement between the Bombay Traders and the appellants in the month of May, 1965. The Bombay Traders consisted of two groups known as the Nandkishore and the Valia groups. The Bombay Traders was floating a new company for the purpose of running a Shoddy Wool Plant. The Bombay Traders agreed to pay about Rs. 6,00,000 to the appellants for acquisition of machinery and installation charges thereof. The appellants had imported some machinery and were in the process of importing some more. The agreement provided that the erection expenses of the machinery would be treated as a loan to the new company. Another part of the agreement was that the machinery was to be erected in portions of a shed in the compound of Ravi Industries Private Limited. The company was to pay Rs. 3,100 as the monthly rent of the portion of the shed occupied by them. The amount which the Bombay Traders would advance as loan to the company was agreed to be converted into Equity capital of the company. Similar option was given to the appellants to convert the amount spent by them for erection expenses into equity capital. The company was incorporated in the month of July, 1965. The appellants allege that the company adopted the agreement between the Bombay Traders and the appellants. The company however denied that the company adopted the agreement. The appellants filed a petition for winding up in the month of January, 1970. The appellants alleged that the company was liable to be wound up under the provisions of section 43 3 (c) of the as the company is unable to pay the following debts. 204 The appellants claimed that they were the creditors of the company for the following sums of money : A.(a) Expenses incurred by the appellants in connection with the erection of the plant and machinery. Rs. 1,14,344.97 (b) Interest on the sum of Rs. 1,14,344.97 from 1 April, 1966 till 31 December, 1969 at 1% per mensem. Rs. 51,453.13 (c) Commission on the sum of Rs. 1,14,344. 97 due to the app ellants at the rate of Ipercent per mensem from 1 April 1966 till 13 December,1969. Rs. 51,453.12 B. (a) Compensation payable by the company to the appellants at the rate of Rs. 3,100 per month for 22 months and 14 days in respect of occupation of the portion of the shed given by the appellants to the company on the basis of leave and licence. Rs.69,600.00 (b) Interest on the amount of com pensation from time to time by the said company to the appellants till 12 April, 1967. Rs. 7,857.00 (c) Further interest on compensation from 13 April, 1967 to 31 December, 1969. Rs. 21,576.00 C. (a) Invoices in respect of 3 machines. Rs. 85,250.00 (b) Interest on Rs. 85,250 Rs. 37,596.00 (c) Commission at the rate of 1% per cent or Rs.85,250 Rs. 37,596.00 The appellants alleged that the company failed and neglected to show the aforesaid indebtedness in the books of account save and except the sum of Rs. 72,556.01. The other allegations of the appellants were these. The company incurred losses upto 31 March, 1969 for the sum of Rs. 6,21,177.53 and thereafter incurred further losses. The company stopped functioning since about the month of Septem ber, 1969. The company is indebted to a Director and the firms of M/s Nandkishore & Co. and M/s Bhupendra & Co. in which some of the Directors of the company are interested. The in , debtedness of the company to the creditors including the appellant 's claim as shown by the company at the figure of Rs. 72,556.01 is for the sum of Rs. 9,56,829.47. The liability of the company including the share capital amounted to Rs. 14,98,923.3 3. The liability excluding the share capital of the company is Rs. 9,56,829.47 and the assets of the company on the valuation put by the company on the balance sheet amount to Rs. 8,81,171.96. The value of the current and liquid assets is about Rs. 2,74,247.38. The appellants on these allegations alleged that even after the proposed sale of the machinery at Rs. 4,50,000 the company would not be in a position to discharge the indebtedness of the company. The proposed sale, of machinery for the sum of Rs. 4,50,000 was at a undervalue. The market value was Rs. 6,00,000. The Board did not sanction such a sale. It was alleged that the substratum of the company disappear ed and there was no possibility of the company doing any business at profit. The company was insolvent and it was just and equitable to wind up the company. 205 When the petition was presented to the High Court of Bombay the learned Single Judge made a preliminary order accepting the petition and directing notice to the company. When the company appeared all the shareholders and a large number of creditors of the company of the, aggregate value of Rs. 7,50,000 supported the company and opposed winding up. The company disputed the claims of the appellants under all the heads save the two amounts of Rs. 14,650 and Rs. 36,000 being the amounts of the second and third invoices. The company produced books of account showing a sum of Rs. 72,556.01 due to the appellants, as on 31 March, 1969. The company alleged that the appellants had agreed to reduction of the debt to a sum of Rs. 14,850 and to accept payment of the same out of proceeds of sale of the machinery. The learned Single Judge held that the claims of the appel lants were disputed save that a sum of Rs. 72,556,.01 was payable by 'the company to the appellants and with regard to the sum of Rs. 72,556.01 the company alleged that there was a settlement at Rs. 14,850 whereas the appellants. denied that there was any such compromise. The learned Single Judge refused to wind up the company and asked the company to deposit the disputed amount of Rs. 72,556.01 in court. The further order was that if within six weeks the appellants did not file the suit in respect of the recovery of the amount the company would be able to withdraw the amount and if the suit would be filed the amount would stand credited to the suit. The High Court on appeal upheld the judgment and order and found that the alleged claims of the appellants were very strongly and substantially denied and disputed. The first claim for erection of plant and machinery was to tally denied by the company. The defences were first that the books of the company showed no such transactions; secondly, there was no privity between the company and the persons in whose names the appellants made the claims; thirdly, the alleged claims were barred by limitation; and, fourthly, there was never any demand for the alleged claims either by those persons or by ,the appellants. The alleged claims for interest and commission were therefore equally baseless according to the defence of the Company. The second claim for compensation was denied on the grounds ,that the appellants were not entitled to any compensation for use of The portion of the shed 'and the alleged claim was barred by imitation. As to the claim for compensation the company relied on the resolution of the Board of Directors at which the Katakia brothers were present as Directors The Board resolved 206 confirmation of the arrangement with M/s Ravi Industries for use of the premises for the running of the industry at their shed at a monthly rent of Rs. 4,250: Prima facie the resolution repelled any claim for compensation or interest on compensation. With regard to the claim of invoices the High Court held that the first invoice for Rs. 34,600 was paid by the company to the appellants. The receipt for such payment was produced before the learned trial Judge. The appellants also admitted the same. As to the other two invoices for Rs. 14,650 and for Rs. 36,000 the amounts appeared in the company 's books. According to the company the claim of the appellants was for Rs. 72,556.01 and the case of the company was that there was a settlement of the claim at Rs. 14,850.00. The High Court correctly gave four principal reasons to re ject the claims of the appellants to wind up the company as creditors. First, that the books of account of the company did not show the alleged claims of the appellants save and except the sum of Rs. 72,556.01. Second, many of the alleged claims are barred by limitation. There is no allegation by the appellants to support acknowledgement of any claim to oust the plea of limitation. Thirdly, the Katakia brothers who were the Directors resigned in the month of August, 1969 and their three shares were transferred in the month of December, 1969 and up to the month of December, 1969 there was not a single letter of demand to the company in respect of any claim. Fourthly, one of the Katakia brother was the Chairman of the Board of Directors and therefore the Katakias were in the knowledge as to the affairs of the company and the books of accounts and they signed the balance sheets which did not reflect any claim of the appellants except the two invoices for the amounts of Rs. 14,650 and Rs. 36,000. The High Court characterised the claim of the appellants as tainted by the vice of dishonesty. The alleged debts of the appellants are disputed, denied, doubted and at least in one instance proved to be dishonest by the production of a receipt granted by the appellants. The books of the company do not show any of the claims excepting in respect of two invoices for Rs. 14,650 and Rs. 36,000. It was said by the appellants that the books would not bind the appellants. The appellants did not give any statutory notice to raise any presumption of inability to pay debt. The appellants would therefore be required to prove their claim. This Court in Amalgamated COmmercial Traders (P) Ltd. v.A. C. K. Krishnaswami and Anr. (1) dealt with a petition to wind up the company on the ground that the company was indebted to the petitioner there for a sum of Rs. 1,750 being the net dividend (1) 35 Company cases 456. 207 amount payable on 25 equity shares which sum the company failed and neglected to pay in spite of notice of demand. There were other shareholders supporting the winding up on identical grounds. The company alleged that there was no debt due and that the company Was in a sound financial position. The resolution of the company declaring a dividend made the payment of the dividend contingent on the receipt of the commission from two sugar mills. The commission was not received till the month of May, 1960. The resolution was in the month of December , 1959. Under section 207 of the a company was required to pay a dividend which had been declared within three months from the date of the declaration. A company cannot declare a dividend payable beyond three months. This Court held that the non payment of dividend was bona fide disputed by the company. It was not a dispute 'to hide ' its inability to pay the debts. Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon. and the sum demanded by the, creditor was unreasonable (See London and Paris Banking Corporation (1). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company When the company contended that the work had not been done properly was not allowed. (See Re. Brighton Club and Norfold Hotel Co. Ltd. (2) Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 S.J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. (3) The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends. Another rule which the court follows is that if there is opposition to the making of the winding up order by the creditors the court will consider their wishes and may decline to make the winding up order. Under section 557 of the Company Act 1956 (1) (3) (2) ; 208 in all matters relating to the winding up of the company the court may ascertain the wishes of the creditors. The wishes of the shareholders are also considered though perhaps the court may attach greater weight to the views of the creditors. The law on this point is stated in Palmer 's Company Law, 21st Edition page 742 as follows : "This right to a winding up order is, however, qualified by another rule, viz., that the court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding up order, the court in its discretion may refuse the order '. The wishes of the creditors will however be tested by the court on the grounds as to whether the case of the persons opposing the winding up is reasonable; secondly, whether there are matters which should be inquired into and investigated if a winding up order is made. It is also well settled that a winding up order will not be made on a creditor 's petition if it would not benefit him or the company 's creditors generally. The grounds furnished by the creditors opposing the winding up will have an. important bearing on the reasonableness of the case (See Re. P. & J. Macrae Ltd.(1). In the present case the claims of the appellants are disputed in fact and in law. The company has given prima facie evidence that the appellants are not entitled to any claim for erection work, because there was no transaction between the company and the appellants or those persons in whose names the appellants claimed the amounts. The company has raised the defence of lack Of privity. The company has raised the defence of limitation. As to the appellant 's claim for compensation for use of shed the company denies any privity between the company and the appellants. The company has proved the resolution of the company that the company will pay rent to Ravi Industries for the use of the shed. As to the three claims of the appellants for invoices one is proved by the company to be utterly unmeritorious. The company produced a receipt granted by the appellants for the invoice amount. The falsehood of the appellants ' claim has been exposed. The company however stated that the indebtedness is for the sum of Rs. 14,850 and the company alleges the agreement between the company and the appellants that payment will be made out of the proceeds of sale. On these facts and on the principles of law to which reference has been made the High Court was correct in refusing the order for winding up. Since the inception of the company Jayantilal Katakia a partner of the appellants was the Chairman of the company until 22 August, 1969. His two brothers were also Directors of the company since its inception till 22 August, 1969. The Bombay group had also Directors of the company. (1) 209 The company proved the unanimous resolution of the Board at a meeting held on June, 1969 for sale of machinery of the company. The Katakia brothers were present at the meeting. The Katakia brothers thereafter sold their three shares to the Valia group. The cumulative evidence in support of the case of the company is not only that the Katakia brothers consented to and approved of the sale of machinery but also parted with their shares of the company. The three shares were sold by the Katakia Brothers shortly after each of them had written a letter on 27 July, 1969 expressly stating that they had no objection to the sale of the machinery and the letter was issued in order to enable the company to hold an Extra ordinary General meeting on the subject. The company relied on the resolution of the Board meeting on 24 October, 1969 where it was recorded that the Valia group would sell their 367 shares and 3 other shares which they had purchased from the appellants to the Nandkishore group and the appellants would accept Rs. 14,850 in settlement of the sum of Rs. 72,000 due from the company and the company would make that payment out of proceeds of sale of the machinery. The Board at a meeting held on 17 September, 1969 resolved that the proposal of R. K. Khanna to purchase the machinery be accepted. On 20 December, 1969 an agreement was signed between R. K. Khanna and the company for the sale of the machinery. At the Annual General Meeting of the company on 8 January, 1970 the Resolution for sale of the machinery was unanimously passed by the company. It is in this background that the appellants impeached the proposed sale of the machinery as unauthorised and improvident. The appellants themselves were parties to the proposed sale. The appellants themselves wanted to buy the machinery at a higher figure. These matters are within the province of the management of the company. Where the shareholders have approved of the sale it cannot be said that the transaction is unauthorised or improvident according to the wishes of the shareholders. It will appear from the judgment of the High Court that the creditors for the sum of Rs. 7,50,000 supported the company and resisted the appellants ' application for winding up. There was some controversy as to whether all the creditors appeared or not. At the hearing of this appeal the company gave a list of the creditors and notices were issued to the creditors. Apart from the appellants, two other creditors who supported the appellants were Ravi Industries Ltd. whose name appears as one of the creditors as on 2 August, 1971 in the list of creditors furnished by the company and K. section Patel & Co. with a claim for Rs. 44,477.56 though their name does not appear in the list. Among the creditors who 210 supported the company the largest amount was represented by Nandikshore and Company with a claim for Rs. 4,95,999. The two creditors who supported the claim of the appellants in regard to the prayer for winding up were Ravi Industries Ltd. with a claim for Rs. 2,97,500 on account of rent and K. section Patel & Co. of Bombay with a claim for Rs.44,477.56. It may be stated here that this claim of Rs. 44,477.56 was made on account of erection work of machinery and this identical claim was included in the list of expenses claimed by the appellants on account of erection work. The company disputed the claim. The High Court correctly found that the appellants could not sustain the claim to support winding up. It is surprising that a claim of the year 1965 was never pursued until it was included as an item of debt in the petition for winding up the company. With regard to the claim for rent, the company pursuant to an agreement between the company and Ravi Industries Private Ltd. credited Rowe Industries with the sum of Rs. 1,52,000 with the result that a sum of Rs. 1,45,500 would be payable by the company to Ravi Industries Ltd. in respect of rent. The company alleges that Ravi Industries Pvt. Ltd. supported the company in the High Court and that they have taken a completely different position ill this Court. In this Court the company has also relied on a piece of writing dated 24 September, 1971 wherein Ravi Industries Private Ltd. acknowledged payment of Rs. 1,52,000 to Rowe Industries Pvt. Ltd. and further agreed to write off the amount of Rs. 1,45,500. Ravi Industries Pvt. Ltd. is disputing the same. This appears to be a matter of substantial dispute. The Court cannot go into these questions to settle debts with doubts. Counsel for the appellants extracted observations from the judgment of the High Court that it was never in dispute that the company was insolvent and it was therefore contended the company should be wound up. Broadly stated, the balance sheet shows the share capital of the company to be Rs. 5,51,500, the liabilities to be Rs. 9,77,829.47 and the assets to be Rs. 8,87,177.93. The assets were less than the liability by Rs. 90,000. Accumulated losses of the company for five years appear to be Rs. 6,21,17.53. The plant and machinery which are shown in the balance sheet at Rs. 6,07.544.58 are agreed to be sold at Rs. 4,50,000. There would then be a short fall in the value of the fixed assets by about Rs. 1,50,000 and if that amount is added to the sum of Rs. 90,000 representing the difference between the assets and liabilities the shortfall in the assets of the company would be about Rs. 2,50,000. The appellants contended that the shortfall in the assets of the company by about Rs. 2,50,000 after the sale of the machinery would indicate first that the substratum of the company was 211 gone and secondly that the company was insolvent. An allegation that the substratum of the company is gone is to be alleged and proved as a fact, The sale of the machinery was alleged in the petition for winding up to indicate that the substratum of the company had disappeared. It was also said that there was no possibility of the company doing business at a profit. In determining whether or not the substratum of the company has gone, the objects of the company and the case of the company on that question will have to be looked into. In the present case the, company alleged that with the proceeds of sale the company in , tended to enter into some other profitable business. The mere fact that the company has suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making a profit in the future, and the court is reluctant to hold that it has no such prospect. (See Re. Suburban Hotel Co.(1); and Davis & Co. vs Brunswick (Australia) Ltd. (2 ) The company alleged that out of the proceeds of sale of the machinery the company would have sufficient money for carrying on export business even if the company were to take into consideration the amount of Rs 1,45,000 alleged to be due on account of rent. Export business, buying and selling yarn and commission agency are some of the business which the company can carry on within its objects. One of the Directors of the Company is Kishore Nandlal Shah who carries on export business under the name and style of M// 'section Nandkishore & Co. in partnership with others. Nandkishore & Co. are creditors 'of the company to the extent of Rs. 4,95,000. The company will not have to meet that claim now. On the contrary, the Nandkishore group will bring in money to the company. This Nandkishore group is alleged by the company to help the company in the export business. The company has not abandoned objects of business. There is no such allegation or proof. It cannot in the facts and circumstances of the present case be held that the substratum of the company is gone. Nor can it be held in the facts and circumstances of the present case that the company is unable to meet the outstandings of any of its admitted creditors. The company has deposited in court the disputed claims of the appellants. The company has not ceased carrying on its business. Therefore, the company will meet the dues as and when they fall due. The company has reasonable. prospect of business and resources. Counsel on behalf of the company contended that the appel lants presented the petition out of improper motive. Improper motive can be spelt out where the position is presented to coerce the company in satisfying some groundless claims made against it by the petitioner. The facts and circumstances of the present case indicate that motive. The appellants were Directors. They sold, ' (1) (2) [1936] 1 A.F.R. 299. 212 their shares. They went out of the management of the company in the, month of August, 1969. They were parties to the proposed sale. Just when the sale of the machinery was going to be effected the appellants presented a petition for winding up. In the recent English decision in Mann & Anr. vs Goldstein & Anr. (1) it was held that even though it appeared from the evidence that the company was insolvent, as the debts were substantially ,disputed the court restrained the prosecution of the petition as an abuse of the process of the court. It is apparent that the appellants did not present the petition for any legitimate purpose. The appeal therefore fails and is dismissed with costs. The company and the supporting creditors will get one hearing fee. The amount of Rs. 72,000 which was deposited in court will remain deposited in the court for a period of eight weeks from this date and if in the meantime no suit is filed by the appellants within eight weeks the company will be at liberty to withdraw the amount by filing the necessary application. In the event of the suit being filed within this period the amount will remain to the credits of the suit. V.P.S. Appeal dismissed.

The appellants filed a petition for winding up of the respondent company, on the grounds : (1) that the company was unable to pay the debts due to the appellants, (2) that the company showed their indebtedness in their books of account for a much smaller amount, (3) that the company was indebted to other creditors, (4) that the company was effecting an unauthorised sale of its machinery, and (5) that the company had incurred losses and stopped functioning, and therefore the substratum of the company disappeared and there was no possibility of the company doing any business at profit. The High Court dismissed the petition. Dismissing the appeal to this Court, HELD : The rules for winding up on a creditor 's petition are if there is a bona fide dispute about a debt and the defence is a substantial one, the court would not ' order winding up. The defence of the company should be in good faith and one of substance. if the defence is likely to succeed on a point of law and the company adduced prima facie proof of the facts on which the defence depends, no order of winding up would be made by the Court. Further under section 557 of the , in all matters relating to winding up of a company the court may ascertain the wishes of the creditors. If, for some good reason the creditors object to a winding up order, the court, in its discretion, may refuse to pass such an order. Also, the winding up order will not be made on a creditor 's petition if it would not benefit the creditor or the company 's creditors generally. [207 D, G H; 208 C D] (1) In the present case, the claims of the appellants were disputed both in fact and in law. The company had given prima facie evidence that the appellants were not entitled to any claim. The company had also raised the defence of lack of privity and of limitation. [208 D F] (2) One of the claims of the appellants was proved by the company to be unmeritorious and 'false, and as regards the admitted debt the company had stated that there was a settlement between the company and the appellants that the appellants would receive a lesser amount and that the company would pay it off out of the proceeds of sale of the company 's properties. [208 F G] (3) The creditors of the company for the sum of Rs. 7,50,000 supported the company and resisted the appellants ' application for winding up. [209 G] (4) The cumulative evidence in support of the case of the company is that the appellants consented to any approved of the sale of the machinery. As shareholders, they had expressly written that they had no objection to the sale of the machinery and the letter was issued in order to enable the company to hold an extraordinary general meeting on the subject. The company passed a resolution authorising the sale. The 256 Sup. Cl/72 202 appellants themselves were parties to the proposed sale and wanted to buy the machinery. Where the shareholders had approved of the sale it could not be said that the transaction was unauthorised or improvident.[209 A F] (5) In determining whether or not the substratum of the company had gone, the objects of the company and the case of the company on that question would have to be looked into. In the present case, the company alleged that with the proceeds of sale the Company intend to enter into some other profitable business. such as export business which was within its objects. The mere fact that it had suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making a profit in the future. A court would not draw such an inference normally. One of its largest creditors, who opposed the winding up petition would help it in the export business. The company had not abandoned the objects of its business. Their ,fore, on the facts and circumstances of the present case it could not be held that the substratum of the company had gone. Nor could it be held that the company was unable to meet the outstandings of any of its admitted creditors. The company had deposited money in court as per the directions of the Court and had not ceased carrying on its business. [211A G] (6) On the facts of the case it is apparent that the appellants had presented the petition with improper motives and not for any legitimate purpose. The appellants were its directors, had full knowledge of the company 's affairs and never made demands 'for their alleged debts. They sold their shares, went out of management of the company and just when the sale of the machinery was going to be effected presented the petition for winding up. [211 A; 212 A C] Amalgamated Commercial Traders (P.) Ltd. vs A. C. K. Krishnaswami & Anr., , London & Paris Banking Corporation, , Re. Brighton Club & Norfold Hotel Co. Ltd., ; , Re. A. Company, 94 S.J. 369, Re. Tweeds Garages Ltd., (1962) Ch. 406, Re. P. & J. Macrae Ltd., , Re. Suburban Hotel Co. and Davis & Co.v. Burnswick (Australia) Ltd., , and Mann & Am .v. Goldstein & Anr., , referred to.

ivil Appeal Nos. 150 1542 of 1971. (From the Judgment and Order dated 18 12 1969 of the Allahabad High Court in Income Tax Reference No. 328/64). G.C. Sharma, P.L. Juneja and S.P. Nayar, for the Appel lant. S.C. Manchanda, V.C. Prashar & Ujjal Singh, for the Respondent. 203 The Judgment of the Court was delivered by KHANNA, J. These three appeals on certificate by the Commissioner of Income tax are against the judgment of the Allahabad High Court whereby the High Court answered the following question referred to it under section 66(1) of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) in favour of the assessee respondent and against the revenue: "Whether in the facts and circumstances of the case, the assessee is entitled for each of the years under consideration to the exclusion from the income under the head 'property ' of an amount equal to the irrecoverable rent of the Grand Hotel property for one year which has not been so excluded in the preceding assessments ?" The matter relates to the assessment years 1957 58, 1958 59 and 1959 60. The assessee is the owner of a build ing known as Grand Hotel in Civil Lines Delhi. The income from this building was assessed from year to year under section 9 of the Act as income from property. Subsequently there was a dispute between the assessee and her tenant. Protracted litigation followed and ultimately a compromise was reached between the assessee and the tenant as per compromise deeds dated December 8, 1954 and July 9, 1955. According to the assessee:, a total amount of Rs. 1,85,892 representing rent due on account of Grand Hotel became irrecoverable from the tenant. At the time of the assessment year 1956 57 the assessee was able to secure deduction under item No. 38 of the Government of India notification No. 877F dated March 21, 1922 as regards unrealised rent in previous years. The assessee made similar claims for deduction at the time of the assessment for the years 1957 58, 1958 59 and 1959 60. The claim was not specifically made before the Income tax Officer but was made in appeal before the Appellant Assistant Commissioner. The Appellate Assistant Commissioner declined to entertain the claim made at such a late stage. When the matter went up before the Tribunal in further appeal, the Tribunal permitted the assessee to raise that point before it. It was then urged on behalf of the department that in view of the deduction made for the assessment year 1956 57, no further deduction could be claimed by the assessee for the subsequent years. This contention advanced on behalf of the department was not accepted by the Tribunal. The Tribunal took the view that the claim could properly be made for the deduction in the assessment for the three years with which we ale con cerned in spite of the fact that such claim had been allowed in assessee 's favour in the year 1956 57. On this view the Tribunal directed the Income tax Officer to compute the total rent which had become irrecoverable in respect of Grand Hotel property. The Tribunal further directed that to the extent the irrecoverable rent had not been exempted in the previous assessment for 1956 57 should be exempted during the year under appeal in so far as income from property was concerned. On application filed by the Commissioner of Income tax the question reproduced above was referred to the High Court. The High Court, as stated above, answered the question in the affirmative in favour of the assessee. 204 In appeal before us Mr. Sharma on behalf of the appel lant has assailed the judgment of the High Court. As against that, Mr. Manchanda on behalf of the assessee respondent has canvassed for the correctness of the view taken by the High Court. Before dealing with the contentions advanced before us, it would be appropriate to refer to the relevant provisions on the subject. Section 9 of the Act deals with tax pay able under the head "Income from property". According to that section, the tax shall be payable by an assessee under the head "Income from property" in respect of the bona fide annual. value of property consisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits c,f which are assessable to tax, subject to certain allowances. These allowances have been speci fied in section 9, but for the purpose of present appeals it is not necessary to .refer to them. "Annual value" any property, for the purpose of section 9, shall, according to subsection (2) of that section, be deemed to be the sum for which the property might reasonably be expected to let from year to year. Subsection (2) is followed by a number of provisos, but we are not concerned with them in these ap peals. Section 60 of the Act empowers the Central Govern ment to make exemptions. According to the section, the Central Government may, by notification in the Offi cial .Gazette,, make an exemption, reduction in rate or other modification, in respect of income tax in favour of any class of income, or in regard to the whole or any part of the income of any class of persons. In exercise of the powers conferred by the above section the Central Government issued notification No. 878F dated March 21, 1922. Item 38 of that notification reads as under: "The following classes of income shall be exempt from the tax payable under the said Act: (38) Such part of the income in respect of which the said tax is payable under the head 'property ' as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irre coverable, where (a) the tenancy is bona fide; (b) the defaulting tenant has vacated or steps have been taken to compel him to vacate the property; (c) the defaulting tenant is not in occupation of any other property of the assessee; (d) the assessee has taken all reasonable steps to substitute legal proceedings for the recovery of the unpaid rent or satisfies the Income tax Officer that legal proceedings would be useless; and 205 (e) the annual value of the property to which the unpaid rent relates has been included in the assessee 's income of the year during. which that rent was due and income tax has been duly paid on such assessed income. " Section 9 of the Act makes provision for computation of income from property on a notional basis. According to this section, the income shall be taken to be the bona fide annual value of the property. In making the computation, certain allowances which are mentioned in section 9 would have to be deducted. In case the property in question was in occupation of a tenant, the taxing authorities have, while computing the income from that property, to take: into account its bona fide annual value. The questions to wheth er the tenant who was in occupation of the property has,. in fact, paid the rent or not would not enter into considera tion at that stage, unless it be found that the rent due from the tenant has become irrecoverable. The fact that the rent due from the tenant has become irrecoverable would in a majority of cases be known only in subsequent years and not in the year during which the tenant has remained in occupa tion. None of the clauses dealing with allowances which are permissible under section 9 (1) of the Act deal with rent due from a tenant which remains irrecoverable. It was to meet such an eventuality that exemption was granted as per item No. 38 in notification No. 878F dated March 21, 1922. Item 38 exempts from payment of tax such part of the income in respect of which tax is payable under the head 'property ' as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irrecoverable. In order to claim the benefit of the above exemption, the assessee has also to show that the requirements of clause (a) to (e) of item 38 have been satisfied. It was not disputed before the High Court that conditions mentioned in clauses (a) to (e) of item No. 38 had been fulfilled in the instant case. The dispute between the parties centres on the point as to whether in the event of the amount of the irrecoverable rent being more than the amount of rent payable for a year, the assessee can claim the deduction only in one year equal to the amount of rent payable for a year, or whether the assessee can claim deduc tions for the balance of the irrecoverable rent in subse quent years also. In other words, the question is whether in the event of the amount of irrecoverable rent being more than the amount of the rent payable for a year of the property, the assessee can claim the benefit of the exemp tion mentioned in item 38 only once or whether the assessee can claim the benefit of that exemption in successive years also till such time as. the assessee gets relief in respect of the whole of the amount of irrecoverable rent. Both the Tribunal and the High Court took the view that it would be permissible to claim the benefit of the exemption in succes sive years. After hearing the learned counsel for the parties, we find no cogent ground to take a different view. The language of item 38 which has been reproduced above shows that if other conditions. are satisfied, the deduc tion which can be claimed by the assessee at an assessment cannot exceed the amount of 206 rent payable for a year. The item thus places a limit in respect of the deduction which is permissible in an assess ment for one year. In case, however, the amount of irrecov erable rent exceeds the amount of rent payable for a year, the right of the assessee to claim the benefit of the above exemption does not, in our opinion, get exhausted by his having claimed exemption in one year. We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years sub ject to the condition that in no year the deduction would exceed the amount of rent payable: for a year. the asses see, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax. The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction 'under the head 'property ' in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax. Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once. There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee. It is well settled that there is no equity about tax. if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopt ed. The fact that such an interpretation is also in conso nance with ordinary notions of equity would further fortify the court in adopting such a course. Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income tax Delhi(1) wherein the Punjab High Court took a different view. For the reasons stated above,. we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singh 's case. The appeal consequently fails and is dismissed with costs. One hearing fee. P.B.R. Appeal dis missed. (1) 52 33.

The respondent sought possession of some land, on the ground that the appellants who were strangers, had occupied it. The Assistant Commissioner accepted their claim and directed that the possession of the disputed land be re stored to them. The appellants ' appeal was dismissed by the Deputy Commissioner. but their revision petition was accept ed by the Mysore Revenue Appellate Tribunal. The High Court allowed the writ petition of the respondents. direct ing the Tribunal not to reopen the questions of fact in revision. The matter was remanded and the Tribunal then upheld the findings of the Assistant and Deputy Commission ers, and dismissed the revision petition. The appellant flied a writ petition which was dismissed by the High Court. Dismissing the appeal, the Court, HELD: (1) The concurrent findings of fact arrived at by the Assistant Commissioner the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition. [322 B C] (2) Principles of res judicata can be invoked not only in separate subsequent proceedings, they can also get at tracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceed ings. [321 H, 322 A]

ivil Appeal Nos. 667 668 of 1975. From the Judgment and order dated the 10 5 1973 of the Delhi High Court in Letter Patent Appeal Nos. 65 and 103 of 1969. F. section Nariman. Randhir Chawla. G. C. Sharma. Mrs. A; K. Verma, Talat Ansari. Ravinder Narain, and O. C. Mathur for the Appellant. G. L. Sanghi, R. N. Sachthey and Girish Chandra for the Respondents. The Judgment of the Court was delivered by UNTWALIA, J. In these appeals by certificate the question for determination is whether the exercise of the power of revision under sub section (3) of section 20 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi hereinafter called the Act is subject to the period of limitation provided in sub section (2a) of section 11 or section 11A of the said Act. The requisite 3 facts lie in a narrow compass and may usefully be stated at the outset. The appellant who was carrying on the business of execution of building contracts was assessed to sales tax under the Act by the Sales Tax officer for the year 1955 56 by an order of assessment made on November 23, 1959. The appellants appeal before the Assistant Commissioner of Sales Tax succeeded in part. He held that the assessment for the first two quarters of the year 1955 56 was invalid having been made out of time. The case was, therefore, remanded to the Sales Tax officer for a fresh assessment in respect of the 3rd and 4th 249 quarters of the year. The Sales Tax officer in pursuance of the A appellate order of remand dated February 11, 1960 passed a fresh . assessment order on March 21, 1960. The Commissioner, however, after notice dated July 21, 1960 to the appellant, by his order dated July 29, 1960 revised the appellate order of the Assistant Commissioner in exercise of his power under section 20(3) of the Act. He held that no part of the assessment for the year 1955 56 was barred and directed a fresh assessment to be made. A fresh assessment for all the four quarters was accordingly made by the Sales Tax officer on September 24, 1960. The appellant filed two writ petitions in the Delhi High Court challenging the order made in revision by the Commissioner and the fresh assessment order passed by the Sales Tax officer in pursuance thereof. A learned single Judge of the High Court allowed the writ applications on April 2, 1969 and quashed the impugned orders. The respondents took up the matter in letters patent appeal and succeeded before a Bench of the High Court. Hence these appeals by the assessees Mr. F. section Nariman appearing for the appellant contended: (1) That the appellate and the revisional authorities must exercise their appellate or revisional power within the period prescribed under sub section (2a) of section 11 of the Act. If their orders are final orders of assessment then directly they are exercising their powers under sub sections (1) or (2) of section 11. In case their orders are of remand for fresh assessment to the assessing` authority then also they must pass their orders within the periods aforesaid although under the proviso added in 1959 the assessing authority may have a further period of 4 years or 6 years, as the case may be, for passing a fresh assessment. (2) That the Commissioner while exercising the power in revision cannot overstep and ignore the period of limitation of 3 years provided in section 11A of the Art (3) That the authority mentioned in sections 11, 11A and 20(3) being the Commissioner, the Commissioner is subject to the period of limitation provided in sections 11 and 11A even when exercising the revisional power under section 20(3). (4) That in any view of the matter the revisional authority must exercise the Dower in a reasonable manner and within a reasonable time. It cannot exercise the power of revision, suo moto, after a long lapse of time at its sweet will and pleasure. Under section 3 of the Act, a hierarchy of officers has been constituted by the Chief Commissioner namely, the Commissioner of Sales Tax, Sales Tax officers and others to assist him. Section 11 of the Act deals with assessment of tax. The Sales Tax officer 250 exercising the powers as an officer to assist the Commissioner under section 11(1) of the Act can proceed to assess the amount of the tax due from a registered dealer within 18 months of the expiry of a particular period. A dealer who has been liable to pay tax under the Act but has failed to get himself registered can be assessed to tax under sub section (2). Then sub section 2(a) says: "No assessment under sub section (1) shall be made after the expiry of four years and no assessment under subsection (2) shall be made after the expiry of six years from the end of the year in respect of which or part of which the assessment is made :" A proviso was added to sub section (2a) w.e.f. October 1, 1959 By the Amending Act of 1958 and it reads as follows: "Provided that where such assessment is made in consequence of or to give effect to any order of an appellate or revisional authority or of a court, the period of four years or six years, as the case may be, shall be reckoned from the date of such order. " lt is to be noticed that a period of limitation has been provided in section 11(2a) and no assessment either under sub section (1) or sub section (2) can be made after the expiry of the specified period. But where such an assessment is made by the assessing authority in consequence of or to give effect to any order of an appellate or revisional authority or any order of a court made in reference, writ or in any other proceeding then under the proviso the period of limitation is to be reckoned from the date of such order. The Legislature has not provided any period. within which an order is to be made by an appellate or revisional authority of a court. Obviously it would have been unpractical and unworkable to do so. Section 20 deals with an appeal, revision or review. If the appeal is filed in time the appellate authority in disposing of any appeal filed Under sub section (1) may (a) confirm, reduce, enhance or annul the assessment, or; (b) set aside the assessment and direct the assessing r authority to make a fresh assessment after such further inquiry as may be directed. " For exercise of the appellate power in any of the manners mentioned above, there is no limitation of time. If assessment can be reduced in appeal at any time it can be enhanced also without the fetter of time. If the assessment is set aside and the case remanded to the assessing authority to make a fresh assessment then the authority, because of the proviso to section 11(2a), is obliged to make the fresh assessment within four years of the appellate order. Sub section (3) of section 20 reads thus: "Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon 251 application or of his own motion may revise any assessment A made or order passed under this Act or the rules there under by a person appointed under section 3 to assist him, and subject as aforesaid, the Chief Commissioner may, in like manner, revise any order passed by the Commissioner. " The Commissioner can revise any assessment made or order passed under the Act including the order of the appellate authority. The limits of the revisional power are not circumscribed in sub section (3), ut it goes without saying that they will be akin to the power of the appellate authority as mentioned in sub section (2). The revisional authority obviously, as pointed out by this Court in the case of The State of Kerala vs K. M. Cheria Abdulla and Company(1) should not trench upon the power expressly reserved by the Act or the rules to other authorities and cannot ignore the limits inherent in exercise of those powers. Section 11A is one such power which deals with assessment and re assessment of tax in case of an escaped assessment or under assessment. Exercise of that power is subject to the limitations provided therein. In Rule 66(2) of the Delhi Sales Tax Rules, 1951 a period of limitation of 60 days has been provided for the filing of an application in revision which can be extended under the proviso appended to that rule on sufficient cause being shown. But no such limitation has been provided for the suo moto, exercise of the revisional power. Mr. Nariman very strongly relied upon the majority decision of this Court in The State of Orissa vs Debaki Debi and others (2) and Submitted that the power of revision exercised by the Commissioners ill this case beyond the period of four years prescribed in sub section (2a) of section 11 was illegal and ultra vires. A close scrutiny of the argument will result in its rejection. In the Orissa case all the orders made by the Collector in exercise of his power of revision under section 23 of the Orissa Sales Tax Act were passed later than 36 months from the expiry of the period in respect of which the assessment was made. The High Court 's view that they were in contravention of section 12(7) which was a power of assessment or re assessment in case of an escaped or under assessment was not upheld. But it was found that the proviso to section 12(6) was in general terms. It was not only a proviso providing for the period of limitation for the first assessment but it governed the assessment made in exercise of the appellate or the revisional power. The main ratio decidendi of the case is that the proviso in section 12(6) is in reality an independent legislative provision unrelated to section 12(6). Therefore, its operation was not confined to assessment under section 12 but applied to any assessment made under the Act. In the alternative it was also opined that assessment made in exercise of the revisional power was an assessment made under section 12. It was so said because if the appellate or the revisional authority would have directed the assessing authority to make a fresh assessment it could do so only under section 12 and then it (1) 16 Sales Tax Cases, 875. (2) 15 Sales Tax Cases, 153. 252 would be subject to the period for limitation of 36 months. It was pointed out in the majority decision of this Court that there would be an anomalous situation. If the appellate authority set aside the assessment and remanded it for fresh orders, no fresh assessment could be made because of the period of limitation. But if instead of doing so the appellate authority affected the same assessment there would be no bar of limitation. In the present case in view of the proviso added to section 11(2a) the anomaly flows in the reverse direction. If the appellate or the revisional authority made a remand order the assessing authority could pass a fresh order of assessment within 4 years of such order. But if the higher authority itself revised the assessment then it would be barred by the rule of limitation provided in section 11 (2a) . To avoid such an anomaly Mr. Nariman suggested a construction to be put which neither solves the anomaly nor is warranted by the language of the provisions of the Act. Counsel submitted that in all cases the powers must be. exercised within 4 years of the period in respect of which an assessment was being made on a registered dealer. It will be wholly unreasonable almost impossible to say that all orders in appeal, revision or reference must be passed within four years of the end of the period of assessment, otherwise they will be barred. It does not solve the anomaly either. Even if the order of remand is made, say, just on the last day of the period of four years, it will be competent to the assessing authority to make a fresh assessment within the further period of four years. The ratio of the case in Debaki Debi 's (supra) must be confined within its four corners and cannot be extended to the facts of the instant case. In The Swastik oil Mills Ltd. vs H. B. Munshi, Deputy Commissioner Of Sales Tax Bombay (1) the decision of this Court in Debaki Debi 's case was distinguished on the ground that the provision of limitation of 36 months in substance was not a real proviso to the section in which it was placed but was in fact a period of limitation for all orders of assessment made under any other provision of the Orissa Act, while in the Bombay Acts there was no such general provision prescribing a period of limitation for making an assessment. Reference to the period of limitation in section 11A of the Bombay Act which is a power of making assessment or re assessment in case of an escaped or under assessed assessments was also rejected. our attention was also drawn to the decision of a single Judge of the Punjab High Court, Delhi Bench, in Sir Sobha Singh & Company vs Commissioner of Sales Tax, Delhi (2) wherein following the decision of this Court in Debaki Debi 's case it was held that an order of review made by the Commissioner under section 20(4) of the Act in effect is an order of assessment under section 11(1) and cannot be made r o after the expiry of the period prescribed under section 11(2a). The learned Judge in the course of his judgment made it clear that he was concerned with the construction of the Act as it stood before 1959 and was not obliged to consider the effect of the proviso added to section 11(2a) in 1959. It is not necessary to decide in this case whether without the aid of the proviso aforesaid the decision of the (1) 21 Sales Tax Cases, 383. (2) 18 section T. C. 416. 253 learned single Judge was correct or not but surely in face of the proviso it cannot hold good. In Commissioner of Commercial Taxes, Bihar, Patna vs Sheodutta Prasad Chandeshwar Singh (1) the review proceedings initiated by the assessing authority was held to be barred under the proviso to section 13(6) of the Bihar Sales Tax Act, 1947. But distinguishing the said decision another Bench of the Patna High Court held in Commissioner of Commercial Taxes, Bihar vs Ashoka Marketing Ltd: (2) that the order of review passed by the Deputy Commissioner was not bared by time. The decision of the Patna High Court in Commissioner of Commercial Taxes, Bihar, Patna vs Sheodutta Prasad Chandeshwar Singh (supra) on identical facts was followed in Commissioner of Commercial Taxes, Bihar vs Shiva Pujan Prasad Bhagat (3). But the principle decided in those cases cannot help the appellant. It may well be that if the assessing authority itself exercises the power of review it cannot circumscribe the bar of limitation provided in section 11 (2a) . But it will be unjust, unreasonable and impracticable to say that the said bar of limitation must also continue to run at all stages of the proceedings, namely, the appellate, revisional, reference, writ or any other stage. It was pointed out by this Court in Swastik oil Mills ' case (supra) that the Deputy Commissioner when seeking to exercise his revisional powers was not encroaching upon the powers reserved to other authorities. The powers were not exercised for the purpose of assessing or re assessing an escaped turn over. The revisional powers were sought to be exercised to correct what appeared to be an incorrect order passed by an Assistant Commissioner and for such a purpose proceedings could not possibly have been taken under section 11A. In the instant case also it could not be disputed that the view taken by the Assistant Commissioner in appeal was obviously wrong. The Commissioner while correcting that mistake in exercise of his revisional power was not doing anything which the Sales Tax officer was empowered to do under section 11A. He was merely setting right the illegality in the appellate order. The third point urged by the appellant is too obviously wrong to merit any detailed discussion. It was not the Commissioner who had passed the assessment order under section 11. That order was of the Sales Tax officer acting as an officer to assist the Commissioner for the purpose of assessment. The assessment order was interfered with by the appellate authority, the Assistant Commissioner and the Commissioner was revising the order of the Assistant Commissioner. All cannot be treated as Commissioners for the purpose of the different powers exercised by the three different authorities. The use of the term "Commissioner" in the sections is merely for the purpose of describing and, at any rate, including the officer assisting the Commissioner as Commissioner. (1) 25 S.T.C. 114. (2) 33 S.T.C. 24, (3) ,33 S.T.C. 466. 254 Apropos the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo moto after an unduly long delay, on the facts of this case it is plain that it was not so done. Within a few months of the passing of the appellate order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commissioner. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time limit has been prescribed for it. It may well be that for an exercise of the suo moto power of revision also, the revisional authority has to initiate the proceeding within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case. For the reasons stated above the appeals fail and are dismissed with costs. One set of hearing fee. P.B.R. Appeals dismissed.

Even when a bonus dispute was pending adjudication before the Industrial Tribunal, the workmen of the appellant resorted to rude tactics to press their earlier charter of demands, which took the turn of an illegal and disorderly strike. The management declared a lockout. On the day following the declaration of lockout, the workmen requested the management to lift the lockout proferring peaceful resumption of work and asking for an interim relief on their economic demands. The management did not agree to lift the lockout. Eventually however, The lockout was lifted and the strike called off. On the question of wages during the strike period, the Industrial Tribunal, apportioning fault to both the parties directed that the management should pay half the wages to the employees during the strike period. Dismissing the appeal, ^ HELD: (1) There is much to be said in favour of the view of the Tribunal that the blameworthiness may be equally apportioned between the parties. Where the strike is illegal and sequel of a lockout legal, the Court has to view the whole course of developments and not stop with examining the initial legitimacy. If one side or other behaves unreasonably or the overall interests of good industrial relations warrant the Tribunal making such directions regarding strike period wage as will meet with justice, fairplay and pragmatic wisdom, there is no error in doing so. The power of the Tribunal is flexible. D E] India Marine Service, , followed. In the instant case there was a pending industrial dispute when the Unions sprang a strike notice. The strike being illegal, the lockout that followed, be came a legal, defensive measure. But the management could not behave unreasonably merely because the lockout was born lawfully. by subsequent conduct, the Unions had shown readiness to resume work peacefully, the refusal to restart the industry was not right and the initial legitimacy of the lockout lost its virtue by this blemished sequel. [232 G Hl (2) In an appeal under Article 136 of the Constitution, this Court would interfere with the Award under challenge only if extraordinary flaws or grave injustice our other recognised grounds are made out. [231 E F] Bengal Chemical. [1959] Suppl. 2 SCR 136, 141; and Associated Cement Companies Ltd. AIR 1972 SC 1552. 1554, followed. In the instant case the direction of the Tribunal that the Company should pay tiffin allowance at the rate of 50 paise on working days to the employees in the staff canteen and that the members of the subordinate staff should be sup plied with warm coats did not call for interference.

Criminal Appeal No. 386 of 1978. From the Judgment and Order dated 19/20th July, 1977 of the Himachal Pradesh High Court in Crl. A. No. 46 of 1976. Rakesh Luthra, N.N. Bhatt, L.R. Singh (N.P.) and lrshad Ahmad for the Appellant. K.G. Bhagat, N.K. Sharma and Ms. A. Subhashini (N.P.) for the Respondent. The Judgment of the Court was delivered by K. RAMASWAMY, J. The appellant, K.C. Sharma, alongwith two others was charged for the offence punishable under sections 302 and 201 read with section 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh. The Additional Sessions Judge, Kangra Division at Dharamsala convicted all the accused under section 302/34 and directed them to undergo imprisonment for life and to pay a fine of Rs.500 and also to the sentence of two years rigor ous imprisonment and fine of Rs.500 for the offence of section 201/34, in default of payment of fine for a further period of three months rigorous imprisonment. All the sentences were directed to run concurrently. On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under section 302 IPC and confirmed the conviction and sentence of the appellant and set aside the sentence of fine. The leave having been granted by this Court, this appeal has been filed. The narrative of prosecution case runs thus: The de ceased Joginder Singh, resident of Jogipura. Kangra on November, 10, 1974. while going to Pathankot with some currency notes in his possession went on his way to Jassur Village to meet his friend one Bala Pahalwan. On enquiry the latter was said to be absent in the village. The deceased came in contact with the appellant and both went to the Dhaba of PW. 7, Joginder Singh Paul to have some drink, but PW. 7 did not allow them to take liquor inside the Dhaba. Both of them sat in the back side of the Dhaba to have drink. PW. 8 Tamil Singh and one Jai Onkar were also invited to have drink with them. All of them together consumed the liquor and ate meat. The deceased paid the price of the liquor and meat and when he had become tipsy, PW. 8 suggest ed to take the deceased to Pathankot or to keep him at Dhaba 110 Beli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra. Thereafter the appellant and the deceased boarded the Truck No. HPK 4179 driven by A. 2, Madho Ram, Driver and A. 3, Bihari Lal, Cleaner. PW. 8 and the other left the place. The truck was loaded with the bricks and the appel lant and the deceased sat on the bricks in the body of the truck and went towards Kangra side. PW. 12, the Octroi Clerk at Nagpur states that the truck driven by A. 2 went towards Baijnath. PW. 13. Burfiram, Chowkidar at Ichhi Marketing Co op. Society spoke that he saw the truck driven by A. 2 and A. 3 and got unloaded the bricks at the godown of the said Society at about mid night but the deceased was not seen there. It is further the case of the prosecution that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron screw driver and gave blows on the head and face of the deceased. Consequently the deceased was half dead. He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and burried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck. The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi. On November 13, 1974, PW. 6 Karrudi Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to answer nature 's call at the outskirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones. On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body. He went and reported to Bidhu Ram, PW. 10. the Pradhan of the village and two others. All of them went to the spot, noticed the dead body. 10 kept a watch during the night. On November 14, 1974 at about 7.00 or 8.00 a.m. PW. 6 went to the Police Station and lodged the com plaint. PW. 26, the A,S.I. recorded and issued the First Information Report and proceeded to the spot. He recovered the articles on and near the dead body under PW. 11, Panch nama and conducted inquest and sent the dead body for post mortem. The Doctor conducted autopsy. On November 15. 1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased. On November 16, 1974, PW. 27, the Sub Inspector of the Police took over the investigation. He contacted one Kuldip Singh, a Conductor in Kapila Transport Company from whom he came to know that on November 10, 1974, the deceased and the appellant were seen consuming liquor at Jassur. Thereafter PW. 27 and PW. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the appel lant 's village Sahaura and was sent for the appellant. The appel 111 lant on coming to him was found to have shaved off his moustaches. PW. 27 had enquired as to why he had removed his moustoches upon which the appellant was claimed to have replied that he had removed his moustaches due to demise of his maternal uncle. PW. 10 and PW. 27 took the appellant to Jassur for identification purposes. The appellant pointed out PW. 7, the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consumed liquor. Equally of PW. 8. Thereafter the appellant was taken back to PW. 10 's village and PW. 27 left the village for further investigation. On enquiry made by PW. 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested PW. 10 whether he could save him if he would tell the truth. Thereupon PW. 10 stated that he could not save him but if he would speak the truth he would help himself. Thereupon the appellant was stated to have made extra judicial confession giving out the details of consuming liquor with the deceased; their going together on the truck, the quarrel that ensued between them; his hitting the deceased with the screw driver, throwing the. dead body, thinking that he died, on the road realising that he was not dead, lifting him and putting him in the body of the truck and all the accused cutting the head of the deceased with the saw blade and burrying the trunk under the stones and hiding the head at different place and thereby they had committed the crime. 10 gave this information to PW. 27 on the next day, namely, November 25, 1974. Thereon all the accused were arrested. On November 27, 1974, the Driver A. 2 was stated to have made a statement under section 27 of the Evidence Act. exhibit PW. 9/A leading to discovery of the hidden head at a place between Guggal and Chaitru. This statement had been made in the presence of PW. 9 and another and the severed head was recovered under Memo exhibit PW. 9/B. This was in the presence of PW. 10 and another. The head was sent to the Doctor for post mortem examination. The Doctor verified and found it to be correct and the doctor corelated the trunk of the dead body and the head belonging to the de ceased. On November 30., 1974, pursuant to statement made by the appellant and A. 3 under exhibit PW. 16/B leading to recover one iron saw without handle and a piece of cloth wrapped to one of its sides was recovered from a bush near Kathman Mor and PW. 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant. They were recovered under exhibit PW. 16/C. The clothes of the appellant were also claimed to have been recovered from his house under exhibit PW. 16/H which was stained with blood and the same were recovered in the presence of PW. 16 The Serologist found the blood stains disintegrated on all the 112 items. On the basis of this evidence the prosecution laid the chargesheet against all the accused. As stated earlier the appellant now stands convicted and sentenced for the offences under sections 302 and 201, I.P.C. The two others did not file appeal against their convict under section 201 I.P.C. The entire prosecution case rested on circumstantial evidence. As regards the appellant, the circumstances relied on the prosecution are three, namely,(i) the appellant and the deceased were last seen together by PW. 7, the owner of the liquor shop Dhaba and PW. 8, the companion who had liquor with the deceased and the appellant; (ii) the extra judicial confession made to PW. 10, the Pradhan of Guggal Gram Panchayat; and (iii) the discovery of saw blade pursu ant to the statement made by the appellant and A. 3 under section 27 of the Evidence Act. The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt. In a case of circumstantial evidence. all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly point ing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstances by itself be conclusive but cumula tively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct wit ness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the inno cence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt. 113 In assessing the evidence to find these principles. it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them. on the other. In regard to the proof of basic or primary facts. the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclu sive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words. there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone. The question emerges, therefore is whether the prosecu tion has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the appellant. The first circumstance is that the de ceased and the appellant were last seen together by PW. 7 and PW. 8. From the evidence it is clear that there is no prior intimacy of the appellant and the deceased. They happened to meet per chance. Equally from the evidence it is clear that PW. 7, the liquor shop owner and PW. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant. Admittedly there is no identification parade conducted by the prosecu tion tO identify the appellant by PW. 7 or PW. 8. The appel lant was stated to have pointed out to PW. 7 as the one that sold the liquor and PW 8 consumed it with him and the de ceased. Therefore it is not reasonably possible to accept the testimony of PW. 7 and PW. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor. It is highly artificial and appears on its face a make believe story. 114 The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or colateral consideration or circumvention of the law suggest ing that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confes sion depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Some times it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him. Admittedly PW. 10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is clear that PW. 27, and PW. 10 came together and appre hended the appellant from his village and was taken to Jassur for identification. After he was identified by PW. 7 and PW. 8 it was stated that he was brought back to Gaggal village of PW. 10 and was kept in his company and PW. 27 left for further investigation. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not 115 be proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Sec tion 26 thereof. Admittedly the appellant did not make any confession in the presence of the magistrate. The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody. It is incred ible to believe that the police officer, PW. 27, after having got identified the appellant by PW. 7 and PW. 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody. It is obvious, that with a view to avoid the rigour of Section 25 and 26, PW. 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of PW. 10, the Pradhan to make an extra judicial confession. Nothing prevented PW. 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under section 164 of the Crl. P.C. which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW. 10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW. 10. Therefore, it would be legitimate to conclude that the appellant was taken into the police custo dy and while the accused was in the custody, the extra judicial confession was obtained through PW. 10 who accommo dated the prosecution. Thereby we can safely reach an irre sistible conclusion that the alleged extra judicial confes sion statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime. The recover ies were long after the arrest of the appellant. The blood stains on all the articles were disintegrated. So it was not possible to find whether it is human blood or not. Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back. Absolutely no motive to commit crime was attributed to the appellant. 116 No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C. If, from the evidence, it is established that any one of the accused have committed the crime individual ly, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. sim plicitor. The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C. Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years ' incarceration. The bail bond shall stand can celled. He shall remain at liberty unless he is required in any other case. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appel lant, a peon, the driver and the cleaner for ride and tram pled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C. by freely fabricating evidence against the innocent. Un doubtedly. heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a pre cious one guaranteed by article 3 of Universal Declaration of Human Rights and also article 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under article 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effec tively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under articles 117 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsi bility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was re sponsible to commit the offence. Indulging in free fabrica tion of the record is a deplorable conduct on the part of an investigating officer which under mines the public confi dence reposed in the investigating agency. Therefore, great er care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Cen tral or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investi gation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution. Though article 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court con cerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard. The appeal is accordingly allowed. P.S.S. Appeal allowed.

The appellant tenant was in occupation of a double storeyed building on a monthly rent of Rs. 170. The respond ent landlady filed an application under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent. The Rent Controller took note of the fact that 1/3rd portion of the building was being used for residential purpose and the rest of the building for non residential purpose, namely, for running a school. He also appointed an Engineer as Commissioner to evaluate the total cost of the building. The Commissioner adopted the rates prevalent in the Public Works Department and submitted his report. On the basis of the Commissioner 's report, the Rent Controller worked out the cost at Rs.1,51,820. Accordingly, the fair rent for the said premises was arrived at Rs.1518 per month at 12 per cent gross return. Since the respondent landlady had confined her claim for the enhance ment of fair rent to Rs.1,O00 only, the Rent Controller fixed the fair rent at Rs.1,O00. On appeal, the order of Rent Controller was affirmed by the Court of Small Causes. On a revision being preferred, the High Court agreed with the valuation adopted and determined the fair rent on the basis that 1/3rd of the premises was used for residen tial purpose and 2/3rd for nonresidential purpose, and, as per sub sections (2) and (3) of Section 4 of the Act, worked out the rent at 9 per cent and 12 per cent respectively on the cost of construction arrived at. The High Court fixed the fair rent at Rs. 1391.67 per month. It confirmed the fair rent of Rs. 1,000 as was fixed by the Rent Controller and as confined to by the Respondent landlady. This appeal, by special leave, is against the High Court 's order. It 395 was contended that the cost of the building and its market value as worked out was illegal, fallacious and untenable. Dismissing the appeal, HELD: 1. Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes the principles on the basis of which the fair rent is to be fixed. In the light of those principles, the evidence adduced by the parties was considered by the Rent Controller, the appellate court and the High Court and they found that the fixation of the fair rent was much in excess of the claim made by the Respondent landlady. Since she confined her claim to Rs.1,O00 per month, the courts below have fixed the fair rent at Rs.1,O00. Therefore, on the findings of facts based on consideration of the evidence, this court cannot interfere and come to its own conclusion. The finding is neither vitiated nor illegal warranting interference. [210B C] 2.1 Sub section 4 of Section 4 of the Act, clearly indicates that the total cost of construction referred to in sub sections (2) and (3) shall consist of the market value as on the date of application for fixation of the fair rent. [209C] 2.2 It is obvious that at the time when this Court rendered its decision in Nambiar 's case there was no provi sion in Section 4 as to the date on which the cost of con struction was to be determined, and Rule 12 provided the manner in which the fixation of the fair rent has to be made. The subsequent amendment brought on the statute in 1973, by the Amending Act 23 of 1973, has incorporated sub section (4) in Section 4 which amplified the date of appli cation as the starting point to fix market value. As such the fair rent has been rightly determined by the courts below. [209D E; HI K.C. Nambiar vs The IV Judge of the Court of Small Causes, Madras & Ors., , referred to.

tition (Crl.) No. 850 of 1982 (Under article 32 of the Constitution of India.) S.B. Malik and K.B. Rohtagi for the Petitioner. Harbans Singh and D.D. Sharma for the Respondents. The Judgment of the Court was delivered by TULZAPURKAR, J. By this writ petition under article 32 of the Constitution the petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should, therefore, be released. The petitioner was originally sentenced to death on 18.1.1969 by the learned Sessions Judge, Ferozepore, for committing an offence of murder under section 302 Indian Penal Code. Later, on a mercy petition preferred by him, his death sentence was commuted by the Governor of Punjab to imprisonment for life, which he has been undergoing in the Central Jail at Bhatinda. Excluding the period spent by him as an under trial prisoner (in respect whereof no life convict is entitled to the benefit of a set off under section as interpreted by this Court in Kartar Singh 's (1) case), the petitioner appears to have undergone a total imprisonment of 22 years 2 months and 17 days inclusive of remissions as under: Yrs. months days ____________________________________________________________ (a) actual rigorous imprisonment after conviction. 11 5 10 (b) Jail remissions 2 3 6 (c) Govt. remissions 8 6 1 _____________________________ Total: 22 2 17 ________________________________ Admittedly, neither his sentence has been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either 775 under section 55 I.P.C. or section 433(b) Cr. P.C. 1973 by the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse 's(1) case. However, on the basis of the aforesaid particulars, which are not disputed, the petitioner 's case is that he has positively undergone more than 14 years of sentence including remissions and since through the Officer in Charge of jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment, that is by subjecting him to hard labour and also by awarding him remissions the Government must be deemed to have commuted his sentence to 14 years either under section 55 I.P.C. or section 433(b) Cr. P.C. 1973, notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith. Counsel for the petitioner elaborated the petitioner 's case thus: Section 53 I.P.C. prescribes five or six distinct categories of punishment to which offenders are liable under the Indian Penal Code. Prior to its amendment by section 117 of the Code of Criminal Procedure (Amendment) Act (26 of 1955) that section prescribed the punishment of 'Transportation ' at item 'Secondly ' but that was substituted by 'Imprisonment for life ' by the said Amending Act (26 of 1955) with effect from January 1, 1956. According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of 'Imprisonment for life ' instead of the earlier sentence of 'transportation for life ' under section 302 I.P.C., read with 'secondly ' of section 53 I.P.C., this new sentence of 'Imprisonment for life ' (either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court or the appropriate Government or authority) has not been made legally 'executable ' in jail under either the Code of Criminal Procedure 1898 or 1973 or any other law or under any writ, order, or warrant of the Court, by the Officer in Charge of jail and like 'sentence of transportation for life ': imprisonment for life ' remains executable by way of banishment or exile to the 'places ' envisaged under section 32 of the Prisoners Act (3 of 1900) and the Officer in Charge of the jail is merely mandated to keep this convict person in intermediate custody only and is required to 'deliver him over ' to appropriate authority and custody for the purpose of 'removal to the places ' aforesaid, for executing or carrying out the sentence and in this behalf reliance was placed on 776 the prescribed Forms of Warrant of Commitment under sections 383 and 386 of the Cr. P.C. 1898 as also under section 418 of the Cr. P.C. 1973 and, therefore, the detention in jail of a person under 'Imprisonment for life ' is unlawful. Counsel, further urged that the Amending Act (26 of 1955) did not change the nature of punishment formerly known as 'transportation for life ' by calling it 'imprisonment for life ' and the latter like the former remains distinct from the punishment of 'rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53 I.P.C. and it is only the punishment enlisted at item 'Fourthly ' (which must mean imprisonment for a term) that can be executed in a jail either in rigorous manner or simple depending upon the Court 's direction contained in the Warrant of commitment, in other words, the two punishments, namely, imprisonment for life ' and 'imprisonment (for a term) rigorous or simple ' are distinct punishments as regards their nature, the place and the mode of their execution and the Officers executing them. In substance, counsel 's contention has been that in regard to the sentence of life imprisonment the place where it has to be executed or carried out has not been appointed under section 32 of the Prisoners Act, 1900 nor has its nature been prescribed, that is to say, it is not necessarily rigorous. In support of the latter aspect regarding the nature of the punishment counsel relied upon the fact that even the Law commission in its 39th Report dated 4th July, 1968 on "The Punishment of Imprisonment for Life under the I.P.C." had recommended a suitable amendment in the I.P.C. by inserting a specific provision to the effect: "Imprisonment for life shall be rigorous" and that the said recommendation was reiterated by it in its 42nd Report which suggests that the existing Law on this aspect is not clear. Counsel, therefore, urged that since the sentence of 'imprisonment for life ', like the sentence of 'transportation for life ' can be executed only by the convict being 'removed to the place or places ' required to be appointed by the State Government under section 32 of the Prisoners Act 1900 and since no 'such place or places ' have been appointed under the aforesaid provision by the State Government, the executing authorities are obliged by the present State of law to 'execute ' or 'carry out ' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55 I.P.C. or section 433(b) Cr. P.C. 1973. In other words, according to counsel, in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail custody, his detention in such jail custody will have to be regarded as illegal and unlawful or alternatively it should be held that on his being made to undergo 777 rigorous imprisonment in jail for a period of 14 years (inclusive of remissions) he would be entitled to be released from jail as on the expiry of the aforesaid period his continued detention would be illegal. It was on the basis of the aforesaid reasoning that counsel contended that although no formal order of commutation either under section 55 I.P.C. or section 433 (b) Cr. P.C. has been passed in the case of the petitioner, the petitioner having been subjected to rigorous imprisonment for a period of more than 14 years (inclusive of remissions) the State Government should be deemed to have passed such an order and the petitioner was entitled to be released forthwith. On the other hand counsel for the respondents seriously disputed that either the old sentence of 'transportation for life ' or the new sentence of 'imprisonment for life ' substituted by the Amending Act 26 of 1955 was or is executable only by way of banishment or exile of the convicts to overseas penal settlements or that the Officers in Charge of jails could not or cannot confine them in the jails within the country for executing or carrying out the sentences imposed upon them. Counsel emphatically denied that either the old sentence of 'transportation for life ' or the newly substituted sentence of 'imprisonment for life ' (either awarded originally or by way of commutation of death sentence) had not been or has not been made legally executable in jails in the country and contended that there was and is ample legal authority warranting the execution or carrying out of such sentences in the jails through the Officers in Charge thereof and in that behalf reliance was placed on sections 383 384 of the old Cr. P.C. 1898 as well as sections 418 419 of the present Cr. P.C. 1973 read with ss.3, 7, 15, 16, 29 and 32 of the Prisoners Act No. 3 of 1900 and certain executive or administrative orders or directions issued from time to time by State Governments; in particular reference was made to Paragraphs 719 and 726A of the Punjab Jail Munual whereunder transportation prisoners (who would include life convicts) could be made to undergo their sentences in certain jails in the country such jails being constituted the 'place ' for their confinement under section 32 of Act 3 of 1900, and counsel urged that accordingly the petitioner herein has been undergoing his sentence of life imprisonment in the Central Jail, Bhatinda. Further, on the aspect of the nature of the punishment counsel contended that having regard to the insertion of a new section, section 53 A in the Indian Penal Code by the Amending Act 26 of 1955, which is in the nature of an Interpretation Clause it would be clear that Parliament intended that a sentence of 'imprisonment for life ' should be equivalent to rigorous imprisonment for life. It was pointed out that on both the aspects touching 778 the punishment of 'imprisonment for life ' (namely, the place of its executability as well as its nature) the contentions urged on behalf of the petitioner have been concluded by two well known judicial pronouncements, one of the Privy Council in Pandit Kishori Lal 's (1) case and the other of this Court in Gopal Godse 's case (supra) and the position in law on both the aspects having been settled by those decisions the recommendation made by the Law Commission in its 39th Report as well as 42nd report will be of no avail to the petitioner and will have to be regarded as having been made only for the purpose of removal of doubts and clarifying or declaring the existing legal position. If, therefore, the sentence of 'imprisonment for life ' is nothing but 'rigorous imprisonment for life ' and can be and is being legally executed or carried out in one of the jails in the country in the case of the petitioner there will be no question of releasing him forthwith simply because he has served 14 years of rigorous imprisonment (inclusive of remissions) in the absence of an order of commutation passed by the State Government either under section 55 of the I.P.C. or section 433 (b) of the Cr. P.C. 1973. The petitioner is, therefore not entitled to the relief sought by him. From the rival contentions urged by counsel on either side as summarised above it will appear clear that the entire edifice of the petitioner 's claim for immediate release from jail custody is based on two premises : (a) inexcusability of the sentence of life imprisonment (formerly called transportation for life) in jail through the Officer in Charge thereof under the existing law and (b) undefined nature of punishment to be suffered under the sentence of life imprisonment which is not necessarily rigorous; but because he was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under section 55 I.P.C. or under section 433 (b) Cr. P.C. 1973 without a formal order in that behalf and he be released forthwith. The question is whether the two premises on which his claim to immediate release rests are valid ? On the question whether a sentence of transportation for life could be executed in jails within the country or the same was executable only beyond the seas, the position, in our view, has been clearly enunciated by the Privy Council in Pt. Kishori Lal 's case (supra). After considering the history of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of 779 Criminal Procedure and the Prisoners Act, the Privy Council came to the conclusion that the said provisions clearly showed that a sentence of transportation was not necessarily executable beyond the seas. It observed at Page 66 of the Report thus : "These sections make it plain that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportation beyond the seas. Nowhere is any obligation imposed on the Government either of India or of the Provinces to provide any places overseas for the reception of prisoners. It appears that for many years the only place to which they have been sent is the Andaman Islands are now in Japanese occupation. Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are, and are not, regarded as fit subjects for transportation thereto, and showing also that nowadays only such of those prisoners sentenced to transportation as may volunteer to undergo transportation overseas are sent to those islands. . . But at the present day transportation is in truth but a name given in India to a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards. . So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners. . " However, Counsel for the petitioner, made a brave attempt, of course in all humility to submit that the provisions of law referred to by the Privy Council for basing its aforesaid conclusion do not warrant the said conclusion and with a view to canvas his submission he elaborately dealt with and took us through the various provisions of the Penal Code, Criminal Procedure Code and the Prisoners Act. On giving our careful and anxious consideration to the matter we have come to the conclusion that it is difficult to accept counsel 's submission. Counsel pointed out that great reliance was placed by the Privy council on section 58 of the Indian Penal Code, which was in force then (since repealed by Amending Act 26 of 1955), but urged that 780 that section merely provided for the temporary or transitory detention and treatment of the offender in local jail pending his deportation beyond the seas and therefore that provision could not be relied upon for coming to the conclusion that transportation prisoners could be confined in local jails for undergoing their entire sentences. It must, however, be pointed out that the Privy Council has not solely relied upon section 58 I.P.C. for reaching its aforesaid conclusion. In fact, in that behalf, it has observed : "Were these (sections 53, 55 and 58 I.P.C.) the only statutory provisions dealing with the matter, there would be much force in the argument that section 58 should be read as providing merely for the temporary or transitory detention and treatment of an offender while arrangements were being made for his transportation beyond the seas" and has not merely gone into the history of the sentence but also indicated the other provisions of Criminal Procedure Code 1898 and the Prisoners Act 1900 which supported its conclusion. In other words, it realised the fact that section 58 I.PC. made provision for a transitory period but taken along with other statutory provisions it helped to reach the conclusion that transportation prisoners were not necessarily required to be sent beyond the seas and in that behalf it relied upon section and particularly certain provisions like sections 29, 31 and 32 of the Prisoners Act, 1900 as amended in 1903, which, in its opinion, were decisive on the point. As we shall point out presently, the other statutory provisions read with the orders of administrative character issued from time to time by the State Governments to which a reference has also been made in the judgment, do support the conclusion reached by it. It may be pointed out and this was not even disputed by the counsel for the petitioner that even prior to the coming into force of the Amending Act 26 of 1955 (i.e. prior to 1.1.1956) all prisoners sentenced to transportation for a term of years or for life were not invariably deported to the over seas penal settlement in the Andamans but transportation prisoners were divided into two categories, namely those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under sec. 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order under sec. 55 I.P.C. or sec. 402 Cr. P.C. 1898 which was within the discretion of the State Government. Reference in 781 this behalf may be made to sec. 32 of the Prisoners Act 1900 and Paragraph 719 of Punjab Jail Manual. Section 32 of Act III of 1900, which specifically deals with 'Persons Under Sentence of Transportation (now applicable to persons sentenced to imprisonment for life) runs thus : 32. "Appointment of places for confinement of persons under sentence of transportation and removal thereto (1) The State Government may appoint places within the State to which persons under sentence of transportation shall be sent; and the State Government, or some officer duly authorised in this behalf by the State Government, shall give orders for the removal of such persons to the places so appointed, except when sentence of transportation is passed on a person already undergoing transportation under a sentence previously passed for another offence. (2) In any case in which the State Government is competent under sub section (1) to appoint places within the States and to order the removal thereto of persons under sentence of transportation the State Government may appoint such places in any other State by agreement with the State Government of that State and may be like agreement give orders or duly authorise some officer to give orders for the removal thereto of such person. " Under this provision the State Government has been empowered to appoint places within the State, and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences. It is obvious that the expression 'confinement ' occurring in the marginal note of the section means the prisoners ' detention in the places for the purpose of executing or carrying out their sentence. Counsel for the petitioner strenuously urged that the 'places ' envisaged for confinement of transportation prisoners under sec. 32 of the Prisoners Act 1900 could not be the places in the jails but must be some place or places outside the jails. In other words, the contention was that under the power for confinement of transportation prisoners the State Government cannot appoint jails as the 782 'places ' for their confinement. We fail to appreciate as to why such a qualification or limitation on the power of the State Government under sec. 32 should be read into with section. Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the "places" for confinement of transportation prisoners. Counsel relied upon two decisions of Lahore High Court in Kundan Lal and others vs Emperor(1) and in Re. Khairati Ram (2) to support his contention but in our view neither of these decisions lays down anything as suggested by Counsel. In both the cases the court was concerned with the question as to where should an approver to whom dardon has been tendered under sec. 337 of Cr. P.C. 1898 should be kept during an inquiry or trial and all that the Lahore High Court has held is that he must be detained in judicial custody in prison which includes a judicial lock up and not in custody of the police and in both the cases a direction issued by the local Government under sec. 514 (1) of Cr. P.C. 1898 for keeping such approvers in Lahore Fort under police control was declared illegal and ultra vires. Neither of these decisions is an authority for the proposition that in the exercise of the power conferred under sec. 32 of Prisoners Act 1900 the State Government cannot constitute or appoint jails within its territory as the "places" for confinement for transportation prisoners. Moreover, as we shall point out later Paragraph 719 of the Punjab Jail Manual clearly shows that by several Notifications or Orders issued by the Punjab Government certain local jails within the Province have been constituted the "places" under sec. 32 of the Act for confinement of transportation prisoners. It is thus clear that under sec. 32 of Act III of 1900 a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be made executable in local jails by constituting such jails as the 'places ' within the meaning of sec. 32 under orders of the State Governments. Apart from sec. 32 of the Prisoners Act, sec. 383 of Cr. P.C. 1898 and sec. 418 of Cr. P. C. 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Both the sections appear in a Chapter dealing with 'Execution of Sentences ' under the respective codes and are identically worded and each one 783 provides that, where the accused is sentenced to imprisonment for life the Court passing the sentence shall forthwith forward the warrant to the Jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place with the warrant. It is obvious that the 'confinement ' of the convict in the jail pursuant to the Court 's warrant issued under the sections is for the purpose of executing or carrying out of the sentence. The proviso to sub sec. (1) of sec. 418 and sub sec. (2) of sec. 418 make this position abundantly clear that the expression 'confinement ' has been used in the sense of execution or carrying out of the sentence. Some argument based on the concerned forms of Warrant of Commitment prescribed under both the Codes (of 1898 and 1973) was made by Counsel for the petitioner but it is obvious that nonprescription of appropriate forms of Warrant of Commitment would not affect the legality of the detention in local jails so long as the requisite legal authority and power in that behalf is vested in the Criminal Court. Moreover, the forms prescribed under the Codes cannot be regarded as exhaustive and an appropriate Warrant of Commitment directing the execution or carrying out of sentence of life imprisonment in jail could be adopted and issued by the Court so long as in law the requisite authority and power in that behalf is vested in the court. Paragraph 719 of the Punjab Jail Manual as published in 1916 ran thus: 719. "Places of confinement for transportation prisoners Every prisoner sentenced to transportation for a term or for life, if ineligible for deportation to the Andamans, shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab, under section 32 of Act III of 1900, namely: The Lahore Borstal Central Jail and the Central Jails and Lahore, Montgomery and Multan; the District Jails at Ambala, and Multan and the Lahore Female Jail. " In the margin reference has been given to several Notifications of Punjab Government specifying the jails named in the Paragraph. It appears that Paragraph 719 itself was amended some time later (when it was done Counsel was unable to state but presumably 784 before 'transportation for life ' was substituted by 'imprisonment for life ') and the words "if ineligible for deportation to the Andamans" were deleted for the amended Para 719 as appearing in Punjab Jail Manual published in 1975 runs thus : 719. Places of Confinement for transportation Prisoners Every prisoner sentenced to transportation for a term of years or for life, shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab, under section 32 of Act III of 1900, namely: The Central Jails at Ambala and Ferozepur, the Borstal Institution and Juvenile Jail, Faridkot, women 's section, District Jail, Ludhiana, in the case of women prisoners and District Jail, Delhi. Here also in the margin reference is given to various Government Notifications specifying the Jails named in the Paragraph. It will thus appear clear that since after the deletion of the words "if ineligible for deportation to Andamans" in the Paragraph 719 so far as the Punjab is concerned no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails which were the appointed places envisaged under sec. 32 of Act III of 1900. It is thus clear that in course of time the sentence of transportation either for a term or for life became executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after 1 1 1956 in view of sec. 53A I.P.C inserted by the Amending Act 26 of 1955. The first premise on which the petitioner 's claim to immediate release rests is thus not valid. As regards the nature of punishment required to be suffered under the sentence of 'imprisonment for life ' (substituted for 'transportation ' by the Amending Act 26 of 1955) Counsel for the petitioner urged that, its nature not having been defined anywhere, it cannot be equated to, rigorous imprisonment for life '. The argument was that the Amending Act (26 of 1955) did not change the nature of the punishment required to be suffered under either and like the sentence of 'transportation for life '. the sentence of imprisonment for life ' remains distinct from the punishment of "rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53, IPC. Counsel pointed out that both in the Indian Penal 785 Code as well as the Criminal Procedure Codes (of 1898 as well as of 1973) a distinction has been maintained between 'imprisonment for life ' and 'imprisonment for a term ' and it is only the latter which can be either 'rigorous ' or 'simple ' depending upon the Court 's direction given at the time of sentencing the accused under section 60, IPC and there is nothing either in the Penal Code or Procedure Codes which indicates that 'imprisonment for life ' is or would be necessarily rigorous. It is not possible to accept this contention for the reasons which we shall presently indicate. In the first place, implicit in the argument so advanced by counsel for the petitioner is the acceptance of the position that the earlier sentence of 'transportation for life ' and the substituted sentence of 'imprisonment for life ' are similar as regards the nature of punishment required to be suffered by the convict under either. If therefore, there is sufficient statutory material or material having the force of law to show that the sentence of transportation either for life or for a term involved exaction of hard labour from the convict while undergoing the sentence the contention must obviously fail. It is well known that transportation to overseas penal settlement always implied hard labour for the concerned convicts and hence deportation beyond the seas popularly called 'Black water ' was the most dreaded punishment in India not without reason. Section 59 of the Prisons Act 9 of 1894 an enactment made for amending the law relating to prisons with a view to prescribe uniform system of prison management in India, initially conferred power on the Governer General in Council and later since 1937 confers power on the State Governments to make rules, consistent with the Act, in regard to the various matters; inter alia under cl. (14) thereof rules could be made "for classifying and prescribing the forms of labour and regulating the periods of rest from labour" and it appears that requisite rules in that behalf have been made by the authorities on whom the power had been or has been conferred. Counsel for the respondent has referred us to 'Andaman and Nicobar Manual ' a Government of India Publication of the year 1908 which contains several rules, regulations and orders governing the Management and Control of the Penal Settlement at Port Blair and Nicobar Islands. Section 1 (2) of the Manual states that the Penal Settlements of Port Blair and Nicobar Islands have been specially appointed as the 'places ' within the meaning of s.33 of Prisoners Act 5 of 1871 which is equivalent to section 32 of Prisoners Act 3 of 1900 and "term as well as life convicts are permitted to be transported to them", while section 1 (3) states that 786 "the barracks and other places used for the confinement of prisoners at Port Blair have also been declared prisons for the confinement of convicts sentenced to penal servitude". Chapter II deals with classification of convicts and section 17 is very important which runs thus: 17. "(1) By section 34, Act V of 1871, the Governor General in Council may, from time to time, prescribe rules as to the classification of transported convicts. (2) The rules so sanctioned by the Government of India for the classification of convicts are comprised in the following orders. (3) Transportation entails hard labour under strict discipline, with only such food as is necessary for health. Any mitigation of the above is an indulgence which may, at any time, be withdrawn in whole or in parts". Sub cl. (3) of section 17 in substance gives the interpretation of the expression 'transportation ' and in terms states that transportation means hard labour under strict discipline, subject to such indulgence as may be granted or withdrawn from time to time. Sections 24 and 25 provide for classification and grades of prisoners on their arrival in the penal Settlement. Section 146 which prescribes hours of labour says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily, including the time of going to and returning from work (as far as practicable). These provisions of the Andaman and Nicobar Jail Manual clearly bring out the fact that the sentence of transportation either for life or for a term inexorably mean rigorous imprisonment in the sense of exaction of hard labour from the convict. This position has been judicially noticed and accepted by the Privy Council in Pandit Kishori Lal 's case (supra) where while elaborately dealing with the history of the sentence of transportation the Privy council has clearly observed that both in England and in India transportation prisoners when deported beyond the seas were subjected to conditions of hard labour under strict discipline. Relying on section 58, I.P.C. and other statutory provisions the Privy Council also concluded that even when it was made to suffer inside a local jail within the country transportations meant rigorous imprisonment. Therefore on counsel 's own argument the two being similar in nature the sentence of imprisonment for life must mean rigorous imprisonment for life. 787 Secondly by the Amending Act 26 of 1955 a new section 53 A has been added to the I.P.C. which in our view clinches the matter beyond any doubt, because sub section (2) read with sub section (1) thereof affords a clear indication by necessary implication that a sentence of 'imprisonment for life ' must be regarded as equivalent to 'rigorous imprisonment for life '. It is obvious that section 53A is in the nature of an 'Interpretation Clause ', for in terms it deals with how 'a sentence of transportation for life or for a term ' should be construed in penal jurisprudence. Sub section (1) provides that any reference to 'transportation for life ' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to 'imprisonment for life '. Sub section (2) runs thus: (2) "In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term". Under this provision Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term. If transportation for a term has been equated to rigorous imprisonment for the same term, by necessary implication the sentence of 'transportation for life ', now substituted by 'imprisonment life ', which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life, that is to say it cannot be anything but rigorous. Counsel for the petitioner, however, pointed out that sub section (2) only deals with a sentence of transportation for a term and not with transportation or imprisonment for life and that the provision is applicable to only sentences of transportation for a term awarded prior to 1.1.1956. This is undoubtedly true but that would not affect the question whether the provision gives the requisite guidance on the nature of punishment intended to be inflicted on the convicts sentenced to imprisonment for life and such guidance is clear by necessary implication. In our view the legislative intent has been clearly spelt out and expressed that the nature of punishment required to be suffered under a sentence of 'imprisonment for life ' awardable on and after 1.1.1956 is rigorous imprisonment. 788 That this is how section 53 A (2) of I.P.C. was construed by this Court is clear from the decision in Gopal Godse 's case (supra). Facts of that case shortly stated were these: Gopal Godse was sentenced to transportation for life by a Judge of the Special Court, Red Fort, Delhi on 10th February, 1949. After undergoing 20 years rigorous imprisonment together with the remissions, he challenged the legality of his continued detention, claiming that he had served his sentence and was therefore, entitled to be released. One of the questions posed by the Court for its determination was: "Whether the petitioner (Gopal Godse) who was sentenced to transportation for life (and whose sentence had not been commuted under section 55 of the I.P.C. or under section 402 (1), Cr. P.C. could be dealt legally as if he were a person sentenced to rigorous imprisonment"? After approving the Privy Council in decision Pandit Kishori Lal 's case (supra) which was based on section 58, I.P.C. and other statutory provisions, this Court answered the question in the affirmative solely basing its conclusion on the provisions contained in section 53 A (2) a provision added by the Amending Act 26 of 1955 with effect from 1.1.1956. After setting out the provisions the court observed thus: "Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in a jail in India except temporarily till he was so transported, subsequent to the said amendment there is non under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term." ' It may significantly be pointed out that Gopal Godse 's sentence of transportation for life had been passed on 10th February, 1949, i.e. prior to the coming into force of the Amending Act 26 of 1955 and the question had come up for consideration before this Court in January 1961 long after the Amending Act had come into force whereunder the sentence of imprisonment for life had been substituted for transportation, with the result that this Court had to and did rely on section 53A (2) for its conclusion. In other words, this Court in that case equated the sentence of transportation for life, (which continued as imprisonment for life on and after 1.1.1956) to rigorous imprisonment for life. It may be pointed out that even thereafter there is no dearth of judicial precedents where, in the matter of nature of punishment, 789 imprisonment for life has been regarded as equivalent to rigorous imprisonment for life. In State of Madhya Pradesh vs Ahmadulla(1) this Court, after reversing the judgment of acquittal recorded by the High Court on a charge of murder, imposed the following sentence: "But taking into account the fact that the accused has been acquitted by the Sessions Judge an order which was affirmed by the High Court we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life". Again in the celebrated case of K.M. Nanavati vs State of Maharastra(2) (second Nanavati case) the Bombay High Court had sentenced the accused expressly to "rigorous imprisonment for life" and this Court while dismissing the appeal upheld the sentence as being correctly awarded. During the hearing our attention was invited to a decision of the Kerala High Court in Mathammal Saraswathi vs The State,(3) where that High Court has taken the view that while passing the sentence of imprisonment for life a Criminal. Court should keep in view the provisions of section 60 of I.P.C. and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused, and went on to clarify the position by stating that the imprisonment for life in that case shall be simple imprisonment and not rigorous. It is not possible to sustain the aforesaid view of the Kerala High Court. In the first place, a distinction between 'imprisonment for life ' and 'imprisonment for a term ' has been maintained in the Penal Code in several of its provisions. Secondly, by its very terms section 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description" and it is only in such case that it is competent for the court to direct that "such imprisonment shall be either wholly rigorous or wholly simple or that any part of such imprisonment shall be rigorous and the rest simple". And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description", in other worns section 60 would be inapplicable. 790 However, for the reasons discussed above and in view of the authoritative pronouncements made by the Privy Council and this Court in Pandit Kishori Lal 's case and Gopal Godse 's case respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life. In this view of the matter, the recommendation of the Law Commission contained in its 39th and 42nd Reports suggesting a suitable amendment in the Indian Penal Code will have to be regarded as having been made only for a purpose of removal of doubts and clarifying or declaring the existing legal position. Presumably for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far. Having regard to the aforesaid discussion, none of the ground on which the petitioner 's claim to immediate release rest can be held to be valid and therefore, in the absence of any order of commutation having been passed either under section 55, I.P.C. or section 433 (b) of Cr. P. C. 1973, the petitioner is not entitled to be released. Rule is therefore discharged. H.L.C. Petition dismissed.

The petitioner had been originally sentenced to death under section 302, I.P.C. but on a mercy petition preferred by him, the sentence had been commuted to 'imprisonment for life '. He had undergone actual rigorous imprisonment of 11 years, 5 months and 10 days but, inclusive of remissions, the total imprisonment worked out to 22 years, 2 months and 17 days. In support of the claim that the petitioner should be released forthwith it was contended: (i) The detention 'in jail ' of a person under 'imprisonment for life ' is unlawful because, after the enactment of section 117 of the Cr. P.C. (Amendment) Act (26 of 1955), though persons who commit murder have been made liable to the newly substituted punishment of 'imprisonment for life ' instead of the earlier sentence of 'transportation for life ' under section 302, I.P.C. read with 'Secondly ' of section 53, I.P.C., this new sentence has not been made legally executable in jail; and like the sentence of 'transportation for life ', it remains executable by way of banishment or exile to the 'places ' envisaged 771 under section 32 of the Prisoners Act, 1900; (ii) The Amending Act (26 of 1955) did not change the nature of punishment formerly known as 'transportation for life ' by calling it 'imprisonment for life ' and the latter, like the former, remains distinct from the punishment of 'rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53, I.P.C. and, it is only the punishment enlisted at item 'Fourthly ' (which must mean 'imprisonment for a term ') that can be executed in jail either in rigorous manner or simple; (iii) Since the sentence of 'imprisonment for life ' can be executed only by the convict being 'removed to the place or places ' required to be appointed under section 32 of the Prisoners Act, 1900 and since no such 'place or places ' have been appointed under the aforesaid provision by the State Government, the executing authorities are obliged by the present state of the law to 'execute ' or 'carry out ' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55, I.P.C. or section 433 (b), Cr. P.C., 1973; and (iv) Although no such formal order of commutation had been passed in the case, the petitioner having been subjected to rigorous imprisonment for a period of 14 years, the State Government should be deemed to have passed such an order. Counsel for respondents contended: (1) that on both the aspects touching the punishment of 'imprisonment for life ', namely, the place of its executability as well as its nature, the contentions urged on behalf of the petitioners have been concluded by Pandit Kishori Lal 's and Gopal Godse 's cases; (ii) that since the sentence of 'imprisonment for life ' can be legally executed in jails within the country there is no question of releasing the petitioner forthwith, in the absence of an order of commutation passed by the State Government either under section 55, I.P.C. or section 433 (b), Cr. P.C., 1973, simply because he has served 14 years ' of rigorous imprisonment. Dismissing the Petition, ^ HELD 1. Since the petitioner 's sentence has not been commuted for imprisonment for a term not exceeding 14 years either under section 55, I.P.C. or section 433 (b), Cr. P.C. 1973 by the appropriate Government, he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse 's case. [790 D] Gopal Godse 's case; , , referred to. The sentence of 'transportation ' either for a term or for life was executable in jails within the country. The same position must obtain in regard to persons sentenced to 'imprisonment for life ' on or after January 1, 1956. [784 F] (1) The law on the point has been clearly enunciated in Pandit Kishori Lal 's case where the Privy Council held that "a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners". There is no force in the contention that the provisions of law referred to by the Privy Council for basing this conclusion did not warrant the said conclusion.[778 H 779G] Pandit Kishori Lal 's case, A.I.R. 1945 P.C. 64 referred to. (ii) Even prior to the coming into force of the Amending Act 26 of 1955 (i.e.,prior to January 1, 1956) all prisoners sentenced to transportation for a 772 term of years or for life were not invariably deported to the overseas penal settlement in the Andamans. Transportation prisoners were divided into two categories, namely, those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under section 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order section 55, I.P.C. or section [780 F H] (iii) Under section 32 of the Prisoners Act, 1900 the State Government has been empowered to appoint places within the State, and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences. It is obvious that the expression 'confinement ' occurring in the marginal note of the section means the prisoners ' detention in the place for the purpose of executing or carrying out their sentence. Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the 'places ' for confinement of transportation prisoners. A sentence of 'transportation ' either for a term or for life could be, and a sentence of "imprisonment for life" can be, made executable in local jails by constituting such jails as the 'places ' within the meaning of section 32 under orders of the State Governments. [781 F 782 F] Kundan Lal & Ors. vs Emperor, A.I.R. 1931 Lahore 353; and Re: Khairati Ram, A.I.R. 1931 Lahore 476 distinguished. (iv) Paragraph 719 of the Punjab Jail Manual as published in 1916 provided that every prisoner sentenced to transportation for a term or for life, if ineligible for deportation to the Andamans, shall be transferred to and confined in one or other of the jails specified therein which were constituted 'places ' for the detention of transportation prisoners within the Punjab under section 32 of the Prisoners Act, 1900. This paragraph was amended some time later and the words "if ineligible for deportation to the Andamans" were deleted as is evident from the amended Para 719 appearing in the Punjab Jail Manual published in 1975. It is therefore clear that since then, so far as Punjab is concerned, no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails. [783 F 784 E] (v) Section and section also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Both the sections appear in a chapter dealing with 'Execution of Sentences ' under the respective Codes and are identically worded. It is obvious that the 'confinement ' of the convict in jail pursuant to the Court 's warrant issued under the sections is for the purpose of executing or carrying out the sentence. The proviso to sub section (1) of section 418 and sub section (2) of section 418 make the position abundantly clear that the expression 'confinement ' has been used in the sense of execution or carrying out of the sentence. [782 G 783 C] 773 3. The position in law as regards the nature of punishment involved in a sentence of 'imprisonment for life ' is well settled. The sentence of imprisonment for life has to be equated with rigorous imprisonment for life. [790 B] (i) Transportation to overseas penal settlement always implied hard labour for the concerned convicts. Sub section (3) of section 17 of the 'Andaman and Nicobar Manual ', a Government of India publication of the year 1908, states that transportation means hard labour under strict discipline. Section 146 says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily. These provisions clearly bring out the fact that the sentence of transportation either for life or for a term inexorably ment rigorous imprisonment in the sense of exaction of hard labour from the convict. This position has been judicially noticed in Pandit Kishori Lal 's case. Therefore, on Counsel 's own argument, the sentences of 'transportation for life ' and 'imprisonment for life ' being similar in nature, the sentence of 'imprisonment for life ' must mean 'rigorous imprisonment for life '. [786 E H] Pandit Kishori Lal 's case, A.I.R. 1945 P.C. 64 referred to. (ii) Sub section (1) of section 53 A provides that any reference to 'transportation for life ' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to 'imprisonment for life '. Under sub section (2) of section 53 A, I.P.C. Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term. If transportation for a term, has been equated to rigorous imprisonment for the same term, by necessary implication, the sentence of 'transportation for life ', now substituted by 'imprisonment for life ', which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life. [787 A F] Gopal Godse 's ease; , ; State of Madhya Pradesh vs Ahmadulla, ; ; and K.M. Nanavati vs State of Maharashtra, ; referred to. It is not possible to sustain the view that while passing the sentence of imprisonment for life a criminal court should keep in view the provisions of s.60, I.P.C. and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused. In the first place, a distinction between 'imprisonment for life ' and 'imprisonment for a term ' has been maintained in the Penal Code in several of its provisions. Secondly, by its very terms, section 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description". And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description"; in other words, section 60 would be inapplicable. [789 D H] Mathammal Saraswathi vs The State, A.I.R. 1957 Kerala 102, overruled.

ition No. 449 of 1980. (Under Article 32 of the Constitution) Soli J. Sorabjee, M.G. Karmali, Vineet Kumar and Mukul Mudgal for the Petitioner. J.L. Nain and M.N. Shroff for the Respondent. The Judgment of the Court Was delivered by, SARKARIA, J. This is a petition under Article 32 of the Constitution for the issuance of a writ of habeas corpus. On January, 31, 1980, an order of detention, dated January 30, 1980 under Section 3 (1) of the (for short, called the COFEPOSA), issued by the second respondent, Shri P.M. Shah, Deputy Secretary to the Government of Gujarat, Home Department, was served on Lallu Jogi Patel (hereinafter referred to as the 'detenu '). The Order was expressed in the name of the Governor of Gujarat. On the same date (January 31, 1980), the grounds of detention were served on the detenu. 356 The grounds of detention served on the detenu are very elaborate and detailed. They also contain the introductory background including the history of the detenu. It is stated herein that the detenu was previously detained by an order, dated September 1974 of the Government of India, under Section 3 of the Maintenance of Internal Security Act (MISA). On the repeal of MISA and the commencement of COFEPOSA, a fresh order, dated December 19, 1974, under the COFEPOSA, was served on the detenu. The detenu 's writ petition for a writ of habeas corpus was dismissed by the High Court of Gujarat on May 6, 1976 in view of the Presidential Order, dated June 27, 1975, made under Article 359(1) of the Constitution which had suspended the rights under Articles 14, 21 and 22 of the Constitution. The detenu was, however, released on March 21, 1977. As stated in the 'grounds ', his activities were kept under surveillance by the Customs Department. In or about July 1979, the detenu attempted to smuggle gold, but he was not successful. Calls booked by the detenu to various telephone numbers of other suspected smugglers were, however, detected. On November 21, 1979, the detenu hatched a conspiracy with one Umar Bakshi to smuggle wrist watches and silver out of the country to Dubai: In pursuance of that conspiracy, on October 9, 1979, the detenu and the said Umar Bakshi smuggled about 45 slabs of silver in the vessel "Saraswati Prasad" registered in the name of Ravia Kalan of Daman. On November 30, 1979, 23 slabs of silver weighing, in aggregate, 692.527 kgs. valued at Rs. 15,65,111, were seized by the officers of the Collectorate of Central Excise and Customs from a truck which was intercepted near village Pipodara. The occupants of the motor truck disclosed their identities as (1) Kailashchandra Shantilal Jain. (2) Mohmed Hussain Hanif Mohmed Pathan, the driver and (3) Babukhan Istiyarkhan Ahmed Pathan, the cleaner. all of Udaipur. The statements of these persons recorded under Section 108 of the Customs Act and the other circumstantial evidence collected, revealed that the detenu was engineering the whole process of attempting to smuggle the silver out of India in conspiracy with Umar Bakshi and others. In para 35 of the 'grounds ', it is mentioned: "The detaining authority, viz., the State Government considered it against the public interest to disclose the sources of the intelligence referred in paragraphs 3. 4. 6 and 30 and 357 further considered it against public interest to disclose further facts contained in various intelligence reports referred to in the aforesaid paragraphs 3, 4, 6 and 30. " On February 15, 1980, the detenu sent a letter. through the Superintendent Jail, requesting for the supply of copies of statements and documents relied upon in the grounds of detention. According to the counter filed by Shri Shah, Deputy Secretary to Government of Gujarat, this letter was received by the State Government on February 18, 1980. The State Government then on February 22, addressed a letter to the Sponsoring Authority (Collector of Customs. Ahmedabad, enquiring whether furnishing copies of documents would not prejudice public interest. On February 25, 1980, the Collector wrote back to the State Government that it was not necessary to supply the copies of the statements and documents asked for by the detenu, "as the grounds of detention served on him were quite elaborate to enable the detenu to make effective representation". The Collector sent copies of the required statements to the State Government and the latter received the same on February 29, 1980. On March 4, 1980, the second respondent (Deputy Secretary, Home Department) arranged personal discussion with the Collector to solicit his considered view. As a result, on March 5, 1980, the Collector sent a letter to the State Government, stating that he had no objection to furnish the detenu with relevant documents. As per letter, dated March 7, 1980, the Section Officer of the Home Department sent the relevant documents running into 461 pages, to the detenu through the Superintendent, District Prison, Rajkot, by registered acknowledgement due. The said documents were received by the detenu on March 11, 1980 at Rajkot. Thus, after excluding the time taken in transit, there was a delay of 17 days in furnishing copies to the detenu. Earlier, on February 1, 1980, Shri P.K. Nair, Advocate had addressed a letter to the Chief Minister of Gujarat asking for permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 12, 1980, the Secretary to Chief Minister wrote in reply to the Advocate, that his request for having an interview with the detenu was being looked into by Government with the Home Department. This letter of the Advocate, according to the counter affidavit filed by Shri Shah, was received by him on February 30, 1980 through the Chief Minister 's 358 Secretariat. On February 20, 1980, the State Government informed the Advocate that his request for interview with the detenu had been granted. Mr. Soli Sorabji, appearing for the petitioner, challenges the validity of the detention of these grounds: (1) There has been impermissible delay in furnishing copies of the documents and statements relied upon in the grounds of detention. (2) There was unreasonable delay of about 20 days in granting interview to the detenu with his lawyer, as a result of which the statutory right of the detenu under rule 14 (xii) of the Gujarat Condition of Detention (COFEPOSA) Order 1975 has been rendered meaningless. The combined effect of these undue delays (Nos. 1 and 2) is that the detenu has been denied his constitutional right to be afforded the earliest opportunity of making an effective representation against his detention, and thus there has been a violation of Articles 21 and 22 (5) of the Constitution. In support of Nos. (1) and (2), the learned counsel has referred to Khudi Ram Das; Jayanarayan Sukul vs State of West Bengal; Madhav Hayawadanrao Hoskot vs State of Maharashtra and Ramchandra A. Kamat vs Union of India & Ors. (3) The counter affidavit filed in response to the rule nisi issued by this Court, has not been affirmed by the detaining authority, but by another officer, on the basis of information derived from the record, only. (4) Irrelevant matter has been taken into consideration. In reply to these contentions, Mr. Nain, appearing for the respondent State has urged these points: (a) (i) The 'grounds of detention ' which were served on the detenu simultaneously with the order of detention, were elaborate and full and had apprised the detenu of all the information necessary for making an effective representation against his detention. "Grounds of detention", as held by this Court in State of Bombay vs Atma Ram Sridhar Vaidya, in Article 22 (5) means only 'conclusions of facts ' and not all the evidence or factual details considered by the 359 detaining authority in passing the impugned order. What Article 22 (5) obligates is that the 'grounds of detention ' should be communicated to the detenu at the earliest. This constitutional obligation was fully discharged when the elaborate grounds of detention containing the substance of all the material facts, were served on the detenu. (ii) In these circumstances, the detenu had no further constitutional right to be supplied with the details and sources of the information on which the order of detention was passed. Reference has also been made to Vakil Singh vs State of Jammu & Kashmir. (b) The detenu as is apparent from the grounds of detention is engaged in smuggling activity in a big way, having international ramifications. Investigations were going on to unravel the entire gang of international smugglers in league with the detenu. The detaining authority had, therefore, to consider as to whether the disclosure of this information asked for by the detenu, at that stage, would not be detrimental to public interest, and if so, whether it would be in the public interest to invoke Article 22 (6) of the Constitution to withhold the copies asked for by the detenu, for some time. For this important purpose consultation with the Collector who was supervising the investigations, was necessary. The documents of which the copies were asked for, also run into several hundred pages. If these inter departmental consultations, preparation and despatch of the copies took 17 days, in a case where the detenu has been indulging in smuggling activity of this magnitude, the delay in supplying the copies was neither inordinate, nor unreasonable. Reference has been made to the counter affidavit filed on behalf of respondents 1 and 2. (c) The period of delay in allowing the detenu to interview his lawyer, was of no consequence. First, Article 22 in terms, denies to the detenu the right to consult a lawyer or to be defended by a counsel of his choice. This concession, has, however, been conceded by the State Government under rule 14 (xii), and there also, it is not an indefeasible right as it is contingent upon the grant of permission by the State Government. There is a distinction between a constitutional right and a defeasible statutory right. Delay in grant of the interview with the lawyer in no way affects the constitutional right of the detenu to make a representation. Secondly, no written request for supply of copies of the documents, prior to February 18, 1980 had been received from the detenu and the lawyer 's request for interview with the detenu was granted on 360 February 20, 1980. The time taken for considering the lawyer 's request for interview cannot be combined with or added to the period taken for supply of the copies. (d) Lastly, the delay in supply of copies or in granting the interview with the lawyer did not in any way prejudice the detenu. The copies were demanded and the interview with the lawyer were sought, professing that these were required for the purpose of making an effective representation. But this professed purpose was merely a pretence because the copies were neither necessary, nor intended to be used for any such purpose. Despite the grant of these twin requests and the despatch of the copies on March 7 and their receipt on March 17, the detenu never filed any representation, although the Advisory Board was to meet shortly thereafter on March 24, 1980. Instead, he rushed to this Court and filed the writ petition on March 17, 1980. This conduct of the detenu is not making any representation, despite opportunity, shows that no prejudice has been caused to him merely by the fact that the copies were despatched to him after 17 days of receiving his request. (e) Under the statute even "grounds" of detention can be communicated to the detenu, in exceptional cases within 15 days of the detention. If the "grounds" communicated within the prescribed period are elaborate then supply of further particular is only two days after the expiry of the fifteen days period prescribed for communicating the "grounds" in exceptional cases. cannot be said to be unreasonably belated. Contentions 3 and 4 canvassed by Shri Sorabji need not detain us. Shri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister. It was authenticated and issued under the Rules of Business by Shri P.M. Shah, Deputy Secretary. Home Department (Special) who has sworn the counter affidavit in this case. No personal mala fides are alleged against the Minister. It was, therefore. not necessary for the Minister to file the counter himself. Contention 3 is, therefore, overruled. What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case. We, therefore, negative contention 4, also. Indeed, the main arguments of the learned counsel are Nos. (1) and (2) that there has been unreasonable delay in supplying the 361 copies of the material documents and statements relied upon or referred to in the grounds of detention. To appreciate these contentions, it is necessary to have a clear idea of the import and scope of the expression 'grounds ' used in the context of 'detention ' in Article 22 (5) of the Constitution and in sub section (3) of Section 3 of COFEPOSA. A democratic constitution is not to be interpreted merely from a lexicographer 's angle but with the realisation that it is an embodiment of the living thoughts and aspirations of a free people. "A constitution" said Benjamin Cardozo, "states or ought to state not rules for the passing hour, but principles for an expanding future". The concept of "grounds", therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of liberty and fundamental freedom guaranteed in Articles 19 (1), 21 and 22 of the Constitution. It is not necessary to notice all the numerous cases in which this expression in the context of Article 22 (5) has come up for consideration. It will suffice to make a brief reference to a few of them which are in point. In Golam vs The State of West Bengal, this Court held that in the context of Article 22 (5) 'grounds ' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something ' is the factual constituent of the 'grounds ' on which the subjective satisfaction of the authority is based. This decision was approved by a larger Bench in Khudaram Das vs West Bengal, ibid, wherein Bhagwati, J. speaking for the Court, said: "The constitutional imperatives enacted in Article 22 (5) are two fold: (i) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; and (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order. These are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person". It was explained that 'grounds ' under Article 22 (S) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu. It was further clarified that such "basic facts and materials" would be different from "other particulars" spoken of in sub section (3) of Section 3 of M.I.S.A. 362 Earlier, in Prabhu Dayal Deorah etc. vs District Magistrate, Kamrup & Ors., Mathew, J., speaking for the majority, elucidated the position, thus: "The detenu has a right under Article 22 (5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of detention order. " From these decisions it is clear that while the expression "grounds" in Article 22 (IS), and for that matter, in Section 3 (3) of the COFEPOSA, includes not only conclusions of fact but also all tho 'basic facts ' on which those conclusions are founded, they are different from subsidiary facts or further particulars of the basic facts. The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important. While the "basic facts" being integral part of the "grounds" must, according to Section 3 (3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22 (S) in Khudi Ram 's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition. It follows, that if in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 3 (3), the omission will be fatal to the validity of the detention. however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is ' 'reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of suck additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds 363 it may still be regarded "reasonable". while in the Pacts of another A case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case (Supra). In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein. There was thus no breach of the first constitutional imperative embodied in Article 22 (5). The short question, therefore, for consideration is: Was the period of 17 days (exclusive of the time taken for communication in transit) for the supply of the further, particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay". Firstly, this is a case in which the detenu was, according to the allegations in the grounds of detention and the averments in the counter affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervising the investigations that were going on at several places, in several countries, to unearth and detect all the persons who were involved in this large scale organised smuggling of international dimensions. It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on. Such a query from or consultations with the Collector was necessary, to enable the detaining authority to make up its mind as to whether or not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu or any part thereof under Article 22 (6). Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants. The Government, therefore, summoned the Collector and discussed the matter at a high level meeting and then directed the Collector to supply the copies. Secondly, the documents or statements of which copies were sought covered more than 461 pages. Preparation of such a bulky record could be time consuming, if the aid of some appliance like the ZEROX machine were not available to prepare the copies by mechanical process. 364 The third reason for delay which is in the nature of and explanation given by the respondent is that it has not caused any prejudice to the right of the detenu 'to make an effective representation, since the grounds of detention communicated to him were elaborate and full. Indeed, in the counter affidavit an alter native stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate. Shri Nain has also tried to support this reasoning. In view of the law enunciated in Khudi Ram 's case, ibid, this stand taken by the respondent is utterly unsustainable. Be that as it may, in the totality of the circumstances of this present case we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicated to the detenu were very elaborate and full is not altogether irrelevant. The copies were despatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order, dated February 20, 1980, to be interviewed by his lawyer. Although the Government took more than two weeks to consider the lawyer 's request to interview the detenu, the fact remains that this permission was granted only two days after the despatch of the detenu 's application for obtaining copies of the additional documents or materials. In spite of the grant of the detenu 's lawyer 's request for interview with his client and the supply of the copies, the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenu 's right to make a speedy and effective representation. According to the petitioner his lawyer by a letter, dated February 1, 1980, sought an interview to enable him to draft his representation. But no application for obtaining copies of the material documents had been made by the detenu till February 15118, 1980, when it was put in a course of communication to the 365 Government, while permission for interview with the lawyer was granted on the 20th February. In short, on a consideration of all the circumstance of this particulars case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22 (5) of the Constitution. These, then, are the reasons in support of our order, dated May 9, 1980 by which we dismissed the writ petition. S.R. Petition dismissed.

Lallu Jogi Patel was detained on January 31, 1980 by an order of detention dated January 30, 1980 passed by the Minister of Home Affairs, Gujarat State under Section 3(1) of the and issued by the second respondent a Deputy Secretary of Government of Gujarat, Home Department. The order was expressed in the name of the Governor of Gujarat. On the same date, the grounds of detention were served on the detenu. The detenu prayed for copies of the statements and documents relied upon in the grounds of detention on February 15, 1980. On February 1, 1980 the detenu 's Advocate sought permission for an interview with the detenu to seek instructions from him for drafting his representation. On February 20, 1980 the State Government informed the Advocate that his request for interview with the detenu had been granted. After consulting the Collector of Customs, the Home Department also, supplied to the detenu the documents running into 461 pages on March 7, 1980 which were actually received by the detenu on March 11, 1980. that is after a delay of 17 days, excluding the time taken in transit etc. Dismissing the petition, the Court ^ HELD: (1) In view of the fact that the original detention order was, in fact, passed by the Home Minister against whom no personal mala fides are alleged and the said order was authenticated and issued under the Rules of Business by the Deputy Secretary, Home Department (Special), the latter 's swearing the counter affidavit in the case is valid. [360 F G] (2) The introductory facts or history of the case incorporated in the grounds of detention cannot be considered as irrelevant matters which went into the consideration of the detention order. [360G H] (3) A democratic Constitution is not to be interpreted merely from a lexicographer 's angle but with a realisation that it is an embodiment of the living thoughts and aspirations of a free people. The concept of "grounds" used in the context of detention in Article 22(5) of the Constitution and in sub 354 section (3) of Section 3 of COFEPOSA, therefore, has to receive an interpretation which will keep it meaningfully in tune with a contemporary notions of liberty and fundamental freedoms guaranteed in Article 19(1), 21 and 22 of the Constitution. [361 A C] (4) In Khudiram Das vs West Bengal the Supreme Court held that the constitutional imperatives enacted in Article 22(5) are two fold: (i) The detaining authority must, as soon as may be, that is, as soon as practicable after. the detention, communicate to the detenu the grounds on which the order has been made; (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person; the grounds under Article 22(5) mean all the basic facts and materials on which the order of detention is based, therefore, all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue. [361 D G] (5) While the expression "grounds" in Article 22(5), and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the "basic facts" on which those conclusions are founded, they are different from subsidiary facts or further particulars or the basic facts. The distinction between "basic facts" which are essential factual constituents of the "grounds" and their further particulars or subsidiary details is important. While the "basic facts" being integral part of the "grounds" must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds, in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudi Ram 's case, are required to be communicated to the detenu. as soon as may be practicable, with reasonable expedition. It follows, that it in a case the so called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenue within the period specified in Section 3(3), the omission will be fatal to the validity of the detention. If, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the tacts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Ram 's case. [362 C H, 363 A] In the instant case there is no breach of the first constitutional imperative embodied in Article 22(5). The grounds supplied to the detenu were elaborate and full and contained all the "basic facts" although they did not set out all the details or particulars of those "basic facts" relied upon or referred to therein. [363 A B] 355 (6) In the totality of the circumstances of the present case, the period of 17 days taken in considering the supply of the copies was not an unreasonably long period which could amount to a denial of the detenu 's right to make an effective representation and, therefore, infraction of the constitutional imperatives in Article 22(5) of the Constitution. Firstly, the detenu was indulging in smuggling out silver from India and exporting it to the Gulf countries in a big way and the smuggling activity attributed to the detenu had international ramifications resulting in consultation with several authorities supervising the Customs. The Government had to consult the Collector of Customs and even summon and discuss in a high level meeting before ordering the supply of the copies. Secondly, the documents and statements of which the copies were sought covered more than 461 pages. Preparation of such a bulky record could be time consuming if the aid of some appliance like the Zerox machine were not available to prepare the copies by mechanical process. Thirdly, in spite of the grant of the request of the detenu 's lawyer to interview the former and the supply of the copies the detenu did not make any representation to the detaining authority or for the consideration of the Advisory Board which is a relevant circumstance to be taken into account for determining whether the delay in supplying the copies has, in fact, prejudiced the detenu 's right to make a speedy and effective representation. [363 C E, H, 364 A D G] Khudi Ram vs State of West Bengal, ; , Golam vs The State of West Bengal, W.P. 270 of 1974 dated 12 9 74; Prabhu Dayal Deorah etc. vs District Magistrate. Kamrup & Ors., ; referred to.

Civil Appeal No. 1983 of 1970 From Judgment and Decree dated 29 7 69 of the Punjab & Haryana High Court in F.A.O. No. 35/66. 568 Naunit Lal, K. Vasdev and Ms. V. Grover for the appellant. V.M. Phadke and Harbans Singh for the respondent. The Judgment of the court was delivered by MISRA, J. The present appeal by special leave is directed against the judgment and order dated 29th July, 1969 of the High Court of Punjab and Haryana at Chandigarh. The dispute in this appeal centres around a religious institution in village Ramgarh (also known a Bhagtuana), tehsil Faridkot, district Bhatinda. This village was previously in the erstwhile Nabha State which merged with Pepsu and after the reorganisation of the States, became a part of the Punjab State in 1956. Sixty five persons claiming to be members of the Sikh community moved an application before the State Government under section 7 (1) of the Sikh Gurdwara Act, 1925 (hereinafter referred to as the Act), as amended by the Amendment Act I of 1959, to have the institution declared to be a Sikh Gurdwara. The State Government notified the said application in the Punjab Gazette in terms of section 7 (3) of the Act on 18th October, 1963. Upon this the appellant made an application under sections 8 and 10 of the Act claiming that the institution was not a Sikh Gurdwara but an Udasi institution known as Dera Bhai hagtu. This application was referred by the State Government to the Sikh Gurdwara Tribunal for adjudication. It was contended by the appellant that throughout its long history the institution has been an Udasi institution. This institution was not established for use by Sikhs for public worship. nor was it founded in the memory of a Sikh Martyr, saint or a historical person. It has never been used for public worship by the Sikhs. The institution was the Dera of Udasi Bhekh and the objects of worship are idols of Gola Sahib and of Baba Srichand, and the various samadhs. The petition was resisted by the respondent Shiromani Gurdwara Prabandhak Committee on three grounds: (1) that the appellant was not competent to move the petition under s.7 of the Act because he was not a hereditary office holder, (2) that the provisions of the Act are not ultra vires the Constitution, and (3) that the institution in dispute was a Sikh Gurdwara. On the pleadings of the parties the Tribunal framed three issues: whether the provisions of the Act are ultra vires the Constitution, 569 (2) whether the appellant was a hereditary office holder, and (3) whether the institution in dispute was a Sikh Guradwara. Issue No. 1 was not pressed and, therefore, the Tribunal in conformity with the previous decisions held the provisions of the Act to be intra vires the Constitution. On the second issue the Tribunal recorded a finding in favour of the appellant. On the third issue, the Tribunal held that the disputed institution was a Sikh Gurdwara. The appellant feeling aggrieved by the judgment of the Tribunal took up the matter in appeal to the High Court and the High Court in its turn confirmed the findings of the Tribunal and dismissed the appeal by the impugned judgment. The appellant has now come to his Court on obtaining special leave and the only issue that survives for consideration by this Court is issue No.3, that is, whether the institution in dispute is a Sikh Gurdwara. Before dealing with the points urged by the counsel for the parties it would be appropriate at this stage to know the distinctive features of Sikhism and Sikh temples. Although for the purpose of historical research and analysis on such subject, the forum of a court of law is not ideal yet if the statute enjoins the Court to decide such questions, the Court has got to discharge the responsibility. Section 16 (1) of the Act provides: "16 (1). Notwithstanding anything contained in any other law in force if in any proceeding before a tribunal it is disputed that a gurdwara should or should not be declared to be a Sikh Gurdwara, the tribunal shall, before enquiring into any other matter in dispute relating to the said gurdwara, decide whether it should or should not be declared a Sikh Gurdwara in accordance with the provisions of sub section (2). " One of the most fascinating aspects of Sikhism is the process which began with human Gurus, continued during the period of duality in which there were human Gurus and a collection of sacred writings and ended with the present situation in which full authority is enjoined by the scripture. In every respect the scripture is what the Gurus were. Both the Gurus and the Book deserve respect, which they are accorded because of the Bani which they express, the word of divine truth. Therefore, it was possible for Guru Arjan, the fifth in the human line, to bow before the collection which he had compiled and installed 570 in the newly built Darbar Sahib in 1604 for he was acknowledged the higher authority of the Banidue to the personal importance and significance which he possessed as Guru. The Sikh Gurus have much in common with other preceptors in Indian tradition but their history and contribution is distinctive. They were not Brahmins, they did not see their calling to be that of expounding Vedas, they taught in vernacular not Sanskrit and their message was for everyone. They were ten in number each remaining faithful to the teachings of Guru Nanak, the first Guru and when their line was ended by a conscious decision of Guru Gobind Singh, the last Guru, succession was invested in a collection of teachings which was given the title of Guru Granth Sahib. This is now the Guru of the Sikhs. An important characteristic of the teachings of the Sikh Gurus is their emphasis upon the message, the Bani. It is this stress which made possible the transfer of Guruship to the scripture. The human Gurus were the instruments through whom the voice of God became audible. The holiest book of the Sikhs is Guru Granth Sahib compiled by the Fifth Master, Guru Arjan. It is the Bible of Sikhs. After giving his followers a central place of worship, Hari mandir, he wanted to give them a holy book. So he collected the hymns of the first four Gurus and to these he added his own. Now this Sri Guru Granth Sahib is a living Guru of the Sikhs. Guru means the guide. Guru Granth Sahib gives light and shows the path to the suffering humanity. Wherever a believer in Sikhism is in trouble or is depressed he reads hymns from the Granth. When Guru Gobind Singh felt that his worldly sojourn was near, he made the fact known to his disciples. The disciples asked him as to who would be their Guru in future. The Guru immediately placed five pies and a coconut before the holy Granth, bowed his head before it and said "The Eternal Father willed, and I raised the Panth. All my Sikhs are ordained to believe the Granth as their preceptor. Have faith in the holy Granth as your Master and consider it. The visible manifestation of the Gurus. He who hath a pure heart will seek guidance from its holy words". 571 The Guru repeated these words and told the disciples not to grieve at his departure. It was true that they would not see his body in its physical manifestation but he would be ever present among the Khalsas. Whenever the Sikhs needed guidance or counsel, they should assemble before the Granth in all sincerity and decide their future line of action in the light of teachings of the Master, as embodied in the Granth. The noble ideas embodied in the Granth would live for ever and show people the path to bills and happiness. Temples are found almost in every religion but there are some difference between the Sikh temples and those of other religions. The sikh Gurdwaras have the following distinctive features: 1. Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurdwara. The central object of worship in a Gurdwara is Sri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A Sikh thus worships the Holy Words that are written in the Granth Sahib, the Words or Shabada about the Eternal Truth or God. No idol or painting of any Guru can be worshipped. 2 Sikh worship in the Gurdwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the Gurdwara. Gurdwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not to know where hospitality is available. There may be complexity of rooms in a Gurdwara for the building may also serve as a school; or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will. be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the Gurdwara will also be used as a clinic. But its Pivotal point is the place of worship and the main room 572 will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself. From the foregoing discussion it is evident that the sine qua non for an institution being a Sikh Gurdwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a Gurdwara. Any learned person can read Guru Granth Sahib and explain to the congregation. With this preliminary about the distinctive features of a Sikh temple we proceed to deal with the contentions of the counsel for the parties. Shri Naunit Lal, counsel for the appellant contended that the High Court has misread the evidence and that has vitiated its finding. He referred to the material portions of the judgment and the evidence of the parties to support his contention. on perusal of the judgment and the relevant evidence we do not find any misreading of evidence by the High Court. This contention, therefore, has no force. We, however, find that the High Court proceeded on the assumption that admittedly Bhai Bhagtu was a Sikh saint and that the disputed institution was established in his memory. This would be evident from the following observation made by he High Court. "On an overall consideration of this aspect we are inclined to accept the contention of Mr. Shant that admittedly Bhai Bagtu was a Sikh saint and this institution was established in his memory and as such the case of the respondent would also come within the ambit of section 16(2) (iv) of the Sikh Gurudwara Act". But this observation is not warranted from the pleadings or the evidence of the parties. Pritam Dass, the appellant, as P.W.S. in his deposition has categorically stated: "Bhai Bhagtu was an Udasi Fahir". In the pleadings also the appellant set up that Bhai Bhagtu was an Udasi saint and the institution was a Dera of the Udasi sect, 573 while the respondent, on the other hand, in its reply stated that Bhai Bhagtu was a Sikh saint and the institution was established in the memory of that Sikh saint. In this state of pleadings and the evidence adduced by the parties it will not be correct to say that admittedly Bhai Bhagtu was a Sikhsaint and that this institution was established in his memory. Rather this was the only disputed question to be decided by the Court. Thus while holding that there is no misreading of evidence we find that there is misreading of the pleadings of the parties. It was next contended for the appellant that the appellant of udasi set being incharge of the institution in question, the succession to the institution being from Guru to Chela, the institution being recorded as Dera of Udasi sect in some of the revenue records, the existence and worship of various idols and samadhs within the precincts of the institution and the absence of a granthi in the institution are all in compatible with the institution being a Sikh Gurdwara. Shri M. N. Phadke appearing for the respondent on the other hand has contended that (1) the points which were never urged in the courts below could not be allowed to be raised for the first time in this Court; (2) in any case the existence of samadhs and idols within the precincts of the institution and the worship thereof, and the absence of a granthi and the succession to the institution from guru to chela are not destructive of the institution being a Sikh Gurdwara; (3) the finding of the High Court that the institution in question is a Sikh Gurdwara is fully warranted by the evidence on record, and (4) the nature of the institution has to be decided in the light of sub section (2) of section 16 of the Sikh Gurdwara Act. The Court has been called upon to decide whether the institution in question is a Sikh Gurdwara. While considering this question the Court has to take into consideration all the circumstances which favour or militate against the institution being a Sikh Gurdwara. In the very nature of things and in view of the requirements of sub section (2) of section 16 it becomes necessary to consider whether the institution being in charge of an Uadasi saint, the existence of samadhs of Udasi saints and worship thereof, or the existence of the idols and absence of a granthi and succession to the institution from guru to chela are all relevant considerations and the Court has to consider them if there is evidence on the record. In the instant case evidence has been adduced on behalf of the appellant about the existence of samadhs and the various idols, the absence of a granthi and succession to the institution 574 from guru to chela. We see no reason why the appellant be prevented from urging the aforesaid circumstances. On the question whether the existence of samadhs and of the idols and the absence of a granthi or succession to the institution from guru to chela militates against the institution being a Sikh Gurdwara the counsel for the parties have adduced evidence in support of their respective contentions. The counsel for the parties have also cited cases in support of their respective contentions. The counsel for the appellant relied on Hem Singh & Ors. vs Basant Das & Anr(1). In that case the question for consideration was whether Udasis are Sikhs. The court held that Udasis are not Sikhs for the purposes of Sikh Gurdwara Act. Although Guru Nanak founded Sikhism as a new religion by sweeping away idolatry and polytheism, Sri Chand, the son of Guru Nanak, the founder of the Udasis, was himself not a Sikh but a Hindu. No reconciliation between the Sikhs and the Udasis ever took place. The Udasis are in consequence not Sikhs, but schismatics who separated in the earliest days of Sikhism and never merged with the followers of the Gurus. Reliance was next placed upon Bawa Ishar Dass & ors. vs Dr. Mohan Singh & ors (2) The Court held: ". it has been established that the Mahants have all along been Udasis, that the institution was an Udasi monastery, that the Guru Granth Sahib was read there by the Udasi Mahant and that Sikhs may have attended these readings but that all other ceremonies, observed by Udasis and Hindus, were performed at the institution. It cannot be held from the mere fact that the Udasis also read the Guru Granth Sahib a book which they do venerate, that the Sikhs should be associated in the management of this genuine Udasis institution. It was held by a Division Bench of this Court in that the Udasi order constitutes a separate sect, distinct from the orthodox Sikhs and that though they have retained many Hindu beliefs and practices, yet in the wider sense of the term they may also be Sikhs. They occupy an intermediate position between strictly orthodox Sikhs and Hindus. The Udasis are in fact a monastic 575 Order in their origin and are followers of Bawa Siri Chand, son of the first Guru though they worship smadhs, etc. they do reverence the Granth Sahib without completely renouncing Hinduism. They are often in charge of the village Dharamsala or Gurdwara, which is a Sikh institution but in other cases the Sadh and his chelas constitute a monastery or college. Owing to their intermediate positions, it is possible for Udasis to be in charge of a Sikh Gurudwara properly so called, but it does not follow that that institution is a sikh Gurudwara and not a true Udasi institution merely because the Granth Sahib is read". In Harnam Singh vs Gurdial Singh on an analysis of various decisions this Court held: "These decisions clearly indicate the principle that though the Sikh Guru Granth Sahib is read in the shrines managed by the by the members of the Udasi Sect, that was not enough to hold that those shrines were Sikh Gurdwaras. In the case before us, the more fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institutions was meant for, or belonged to, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhs who cannot be regarded as Sikhs and consequently, in their mere capacity of followers of Sikhs religion residing in village Jhandawala, the plaintiffs/respondents could not be held to have such an interest as could entitled hem to institute the suit under section 92 of the Code of Civil Procedure." Shri Phadke appearing, for the respondent on the other hand his cited Mahant Dharam Das etc. vs State of Punjab & Ors (2). Dealing with the tenets of the Sikhs this Court observed: "The Sikhs believe in the ten Gurus the last of whom was Guru Gobind Singh. They further believe that there is no other Guru after Guru Gobind Singh who enjoined on his followers that after him they should Consider Guru Granth Sahib as the Guru. They do not subscribe to idol worship and polytheism, nor do they have any Samadhi in their shrines. The teaching of Sikhs was against asceticism. They believe in Guru Granth Sahib, which is a Rosary of sacred poems, exhortations, etc. 576 During the time of the Sikh Gurus the Gurdwaras were under their direct supervision and control or under their Masends or missionary agents. After the death of Guru Gobind Singh the Panth is recognised as the corporate representative of the Guru on earth and thereafter they were managed by the Panth through their Granthis and other sewadars who were under direct supervision of the local Sangat or congregation The position of the Gurdwaras changed during British regime. The mahants who were in charge of the Sikh Gurdwaras could either be a Sikh Mahant or Udasi Mahant. Though there was no reconciliation between the Sikhs and Udasis, it did not matter if the Mahant of a Sikh Gurdwara was not a Sikh Mahant because the Panth or Sangat exercised control over the Gurdwaras". Next reliance was placed o Sohan Das vs Bela Singh & Ors.(2) Dealing with section 16(2) of the Sikh Gurudwara Act the Court observed: "The documentary evidence therefore establishes that the dharamsala has been a place of public worship since 1853, and that such worship has been connected with the Granth Sahib I am prepared to accept the evidence of the objectors that the existence of a samadh dates only from recent times, more than probably after the Sikh Gurdwara controversy had become acute and he importance of a samadh had been realized by the Udasi Mahants. I hold therefore that the evidence supports the conclusion of the majority of the Tribunal that this institution falls within s.16 (2) (iii) of the Act". In view of the divergent cases cited by the counsel for the parties we have to take into consideration the distinctive features of a Sikh Gurdwara as discussed in the earlier part of the judgment. So viewed, the existence an worship of Guru Granth Sahib and the existence of Nishan Sahib are the determinative factor. The Tribunal did not take into consideration the oral evidence adduced by the parties. Eight witnesses were produced on behalf of the appellant while six witnesses were produced on behalf of the respondent. The High Court also did not give a proper deal to the oral evidence adduced by the appellant. The only consideration given by the High Court to the oral testimony of the witnesses on behalf, of the appellant was in the following terms: 577 "As regards the oral testimony on the point that the institution was a Dera of an Udasi Sadhu, the same is obviously interested, and hardly credible. The Tribunal has not attached any weight to the same and we are wholly in agreement with the finding of the Tribunal on that point. " The witnesses on either side have come to depose on oath. The grounds on which the evidence adduced on behalf of the appellant has been discarded may equally apply to the evidence adduced on behalf of the respondent. The Court should have considered the worth of the evidence of each witness and should have given reasons for disbelieving the same on merit. A bald observation that the witnesses produced on behalf of the appellate are interested must be deprecated. Even otherwise the courts below have not approached the case from the correct angle. (The Courts had to decide the question in view of the provisions of sub section (2) of section 16 of the Act and they had to record a positive finding in the light of sub s.(2) of section 16,) which reads: "16 (2) If the tribunal finds that the gurdwara (i) was established by, or in memory of any of the Ten Sikh Gurus, or in commemoration of any incident in the life of any of the Ten Sikh Gurus and was used for public worship by Sikhs, before and at the time of the presentation of the of the petition under sub section (1) of section 7; or (ii) owing to some tradition connected with one of the Ten Sikh Gurus, was used for public worship predominantly by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; or (iii) was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time of the presentation of the petition under Sub section (I) of section 7; or (iv) was established in memory of a Sikh martyr, saint or historical person and was used for public worship by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; or 578 (v) owing to some incident connected with the Sikh religion was used for public worship predominantly by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; the tribunal shall decide that it should be declared to be a Sikh Gurdwara, and record an order accordingly". Unless the claim falls within one or the other of the categories enumerated in sub section (2) of section 16, the institution cannot be declared to be a Sikh Gurdwara. The Court had, therefore, first to consider as pleaded by the parties, as to whether Bhai Bhagtu was a Udasi saint or a Sikh saint, and then to decide on the basis of evidence whether the institution in question is one or the of the types indicated. This was the only question for consideration before the High Court but unfortunately it assumed what was to be proved. On the foregoing discussion we are satisfied that the High Court has not given a proper deal to the matter and has not considered the oral evidence adduced on behalf of the parties. Nor has it approached case from the correct perspective of law. Ordinarily, in a situation as here the matter should have gone back to the High Court for recordings findings on the basis of appreciation of evidence but we are not inclined to remand the matter as it is a very old dispute. We are, therefore , prepared to take that burden ourselves and finally decide the dispute. As would appear, parties were aware of the nature claim and the evidence to be led and, therefore, parties concentrated their attention on the aspects which would be, decisive of the points in dispute. It is unfortunate that the Tribunal and the High Court did not Keep the proper perspective in view whiles dealing with the matter. On behalf of the appellant Ram Saran Dass, P W 1, Charan Dass, PW 2, Bishan Dass, PW 3, Jagraj Singh, PW 4, Chajju Ram, PW 5, Zora Singh Patwari, PW 6, Surjit Singh, PW 7 and the appellant, PW 8, were examined. On behalf of the respondent, Hardev Singh, RW 1, Bachan Singh, RW 2, Balbir Singh, RW 3, Balwant Singh, RW 4, Hazura Singh, RW 5, and Gurdial Singh, RW 6, were examined as witness. 579 The finding of the High Court as extracted hereinbefore clearly show that the four important and most relevant aspects of the case as disclosed in the evidence were completely overlooked or side tracked by the High Court, They are: (i) there are Samadhs on the premises of the institution ;(ii) there are idols and photos of Hindu deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv) succession was from Guru so Chela. The petition filed by the appellant under s.8 of the Act contained a clear averment that the institution had been set up by Bhai Bhagtu who was a Udasi Saint and the presence of three Samadhs of (I) Bhai Bhagtu, (2) Baba Paras Ram Ji and (3) Mahant Sahib Dass Ji, was also asserted. In the written statement the respondent, after a vague denial, had admitted the institution to have been founded by Bhai Bhagtu. PW 1, Ram Saran Dass stated that there was an idol of Baba Srichand in the institution and there were pictures of Lord Krishna and other Hindu deities. This statement was elicited in cross examination made by the respondent. PW 2 has stated that there is an idol of Baba Srichand and Gola Sahib in the institution and they are objects of worship. PW 3, Bishan Dass, referred to the idol of Baba Shrichand. PW 4, Jagral stated that there were three or four samadhs on the premises of the institution and those are objects of worship There was no challenge to this statement in examination in chief by cross examination. PW 5 was asked in cross examination whether there were Samadhs on the premises of the institution and his answer is revealing. He stated that there are three Samadhs on the premises of the institution and there is a dome over the Samadhs of Bhai Bhagtu. He added that there are other pictures of Hindu deities and Hindu Festivals are celebrated in the institution. PW 7, Surjit Singh, the local Sarpanch stated that the institution was of Udasi Fakirs. He also stated that there is a Samadh of Bhai Bhagtu on the premises of the institution and it is an object of worship. He indicated that the Samadh of Bhai Bhagtu was worshipped in a grand scale while the other two Samadhs were not treated on equal basis. There was no cross examination of this witness on this aspect. Pritam Dass, the appellant did support his case. Ordinarily his evidence would have been treated as interested as he happens to be the party but his assertions have well corroborated. Coming to the respondent 's side, the first witness Hardev Singh in his examination in chief stated that there is a Samadh of Bhai Bhagtu in the institution and another Samadh of his mother. On the basis of this admission of the principal witness of the respondent there can be 580 on doubt that Samadhs exist within the institution. At the hearing counsel had pointed out that this witness was a member of the Communist Party. We do not think that would at all be a proper way of appreciating the evidence of the witnesses. He was a witness called by the respondent and was not declared hostile, if he made admissions in his examination in chief. On the other hand, the fact that he does not belong to the groups of either party and is a Communist would lend credence to his evidence as coming from an impartial source. The next witness, RW 2, Bachan Singh admitted the existence of the Samadhs but denied that the Samadh of Bhai Bhagtu was an object of worship. RW 3, Balbir Singh, admitted the presence of Samadh of Bhai Bhagtu as also of his mother. It is in the evidence of this witness that he also belongs to the Communist Party. What we have said about RW 1 equally applies to this witness. RW 4, Balwat Singh admitted the presence of Bhai Bhagtu 's Samadh; while RW 5, Hazura Singh stated that there were two Samadhs on the premises one of Bhai Bhagtu and the other of his mother. The last witness, RW 6, Gurdial Singh in his evidence admitted the existence of the two, Samadhs of Bhai Bhagtu and his mother. This analysis of the evidence clearly indicates that it has been unquestionably established without the slightest shadow of a doubt that there are at least two Samadhs on the premises of the institution one being of Bhai Bhagtu and the other of his mother. The existence of the idol of Baba Srichand, the founder of the Udasi sect in the premises also seems to have been fully established. As already stated, Sikhs would not permit the idol of Baba Srichand in a Gurdwara, while Udasis would ordinarily install such an idol to perpetuate the memory of the founder of their sect. What emerges from this discussion is that as found by the Tribunal, the succession was from Guru to Chela; that Bhai Bhagtu was a Udasi Saint and there are Samadhs on the premises one of Bhai Bhagtu and the other of his mother. Evidence shows that there are photos of Hindu deities in the institution. These three facts, without anything more, would be sufficient to reject the case of the respondent that the institution is a Sikh Gurdwara. We would like to reiterate that existence of Samadhs and succession from Guru to Chela would clearly be destructive of character of the institution as a Sikh Gurdwara because they are inconsistent with the tenets of the Sikh 581 religion. The issue before the High Court as also the Tribunal was whether the institution Dera Bhai Bhagtu was a Sikh Gurdwara. Reference to another aspect would be relevant here. Counsel for the respondent emphasized the feature that there was evidence to show that Guru Granth Sahib was recited and read in this institution. It is well established that Udasis are mid way between Sikhs on the one hand and Hindus on the other. Srichand, son of Guru Nanak, the founder of the Sikhism, had, as already indicated, broken away and set up the Udasi sect. Udasis while venerating Guru Granth Sahib, retained Hindu practices and also showed their veneration to the Samadhs. From the very fact that Guru Granth Sahib was recited in this institution, no support can be drawn for the claim that the institution was a Sikh Gurdwara. On the materials on record, we are of the view that the findings recorded by the Tribunal as also the High Court are wholly unsupportable to satisfy the tests indicated in law for determining the character of the institution. We allow the appeal, reverse the decision of the Tribunal as upheld by the High Court and declare that Dera Bhai Bhagtu is not Sikh Gurdwara. In the circumstances of the case there would be no order as to costs. S.R. Appeal allowed.

Sixty five persons claiming to be members of the Sikh community moved an application before the State Government under Section 7(1) of the Sikh Gurudwara Act, 1925 to have a religious institution in village Ramgarh (also known as Bhagtuana of Faridkot tehsil, declared to be a Sikh Gurudwara. The State Government notified the said application in the Punjab Government Gazette in terms of Section 7(3) of the Act on 18th October, 1963. Upon this the appellant made an application under Section 8 and 10 of the Act claiming that the institution was not a Sikh Gurudwara but an Udasi institution known as Dera Bhai Bhagtu. The application was referred to the Sikh Gurudwara Tribunal for adjudication. The petition was resisted by the respondent Shiromani Gurudwara Prabandhak Committee on three grounds: (i) that the appellant was not competent to move the petition under section 7 of the Act as he was not a hereditary office holder, (ii) that the provisions of the Act are not ultravires the Constitution; and (iii) that the institution in dispute was a Sikh Gurudwara. The Tribunal held against the respondent and in favour of the appellant on contention(1). Since the second contention was not pressed and the third question was the only issue, the Tribunal held that the institution was a Sikh Gurudwara. In appeal, the Punjab and Haryana High Court confirmed the Tribunal 's findings. Hence the appeal by Special Leave of the Court. Allowing the appeal, the Court ^ HELD: 1.1. The religious institution, Dera Bhai Bhagtu is not Sikh Gurudwara. On the materials on record, the findings recorded by the Tribunal as well as the High Court are wholly unsupportable to satisfy the tests indicated in law for determining the character of the institution. [581D] 1.2. The findings of the High Court clearly show that the four important and most relevant aspects of the case as disclosed in the evidence were completely overlooked or side tracked by the High Court. They are: (i) there are Samadhs on the premises of the institution; (ii) there are idols and photos of Hindu deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv) succession was from Guru to Chela. 565 The petition filed by the appellant under s.8 of the Act contained a clear averment that the institution had been set up by Bhai Bhagtu who was a Udasi Saint and the presence of three Samadhs of (1) Bhai Bhagtu, (2) Baba Paras Ram Ji, and (3) Mahant Sahib Dass Ji, was also asserted. In the written statement the respondent, after a vague denial, had admitted the institution to have been founded by Bhai Bhagtu. Pritam Dass, the appellant did support his case. Ordinarily his evidence would have been treated as interested as he happens to be the party but his assertions have been well corroborated. The same is strengthened by the evidence of all respondent 's witnesses. The evidence of witnesses clearly indicates: (i) that there are atleast two samadhs in the premises of the institution one being of Bhai Bhagtu and the other of his mother; (ii) the existence of the idol of Baba Srichand, the founder of the Udasi Sect in the premises. Clearly the Sikhs would not permit the idol of Baba Srichand in a Gurudwara while Udasis would ordinarily install such an idol to perpetuate the memory of the founder of their sect; (iii) the succession was from Guru to Chela; and (iv) there are photos of Hindu deities in the institution. These facts without anything more would be sufficient to reject the case of the respondent that the institution is a Sikh Gurudwara. [579A C; G; 580G H] 1.4. From the very fact that Guru Granth Sahib was recited in the institution no support can be drawn for the claim that the institution was a Sikh Gurudwara. It is well established that Udasis are midway between Sikhs on the one hand and the Hindus on the other. Srichand son of Guru Nanak, the founder of Sikhism, had broken away and set up the Udasi sect. [581B C] 2.1. Although for the purpose of historical research and analysis on the subject like Sikhs and Sikh temples, the forum of a court of law is not ideal, yet, if the statute enjoins the court to decide such questions, the court has got to discharge the responsibility. [569D] 2.2. The court has been called upon to decide whether the institution in question is a Sikh Gurudwara. While considering this question the Court has to take into consideration all the circumstances which favour or militate against the institution being a Sikh Gurudwara. In the very nature of things and in view of the requirements of sub s.(2) of section 16 it becomes necessary to consider whether the institution being in charge of a Udasi saint, the existence of samadhs of Udasi saints and worship thereof, or the existence of the idols and absence of a granthi and succession to the institution from guru to chela are all relevant considerations and the Court has to consider them if there is evidence on the record. In the instant case evidence has been adduced on behalf of the appellant about the existence of samadhs and the various idols, the absence of a granthi and succession to the institution from guru to chela. The appellant cannot, therefore, be prevented from urging the aforesaid circumstances. [573F H; 574A] 2.3. Courts cannot discard the evidence of witnesses of one side by simply saying that the oral testimony is interested and hardly any credible, when witnesses on either side have come to depose on oath. Here, the grounds on which the evidence adduced on behalf of the appellant has been discarded may equally apply to the evidence adduced on behalf of the respondent. The Court should have considered the worth of the evidence of each witness and should have given reasons for disbelieving the same on merit. A bald observation that the witnesses produced on behalf for the appellant are interested must be deprecated. The courts had to decide the 566 question in view of the provisions of sub s.(2) of s.16 of the Act and they had to record a positive finding in the light of sub s.(2) of s.16. Unless the claim falls within one or the other of the categories enumerated in sub section(2) of s.16, the institution cannot be declared to be a Sikh Gurudwara [577B D; 578C] 3.1. One of the most fascinating aspects of Sikhism is the process which began with human Gurus, continued during the period of duality in which there were human Gurus and a collection of sacred writings and ended with the present situation in which full authority is enjoined by the scripture. In every respect the scripture is what the Gurus were. [569G] Both the Gurus and the Book deserve respect, which they are accorded because of the Bani which they express, the word of divine truth. Therefore, it was possible for Guru Arjan, the fifth in the human line, to bow before the collection which he had complied and installed in the newly built Darbar Sahib in 1604 for he was acknowledged the higher authority of the Bani due to the personal importance and significance which he possessed as Guru. [569H; 570A] The Sikh Gurus have much in common with other preceptors in Indian tradition but their history and contribution is distinctive. They were not Brahmins, they did not see their calling to be that of expounding Vedas, they taught in vernacular not Sanskrit and their message was for everyone. They were ten in number each remaining faithful to the teachings of Guru Nanak, the first Guru and when their line was ended by a conscious decision of Guru Gobind Singh, the last Guru, succession was invested in a collection of teachings which was given the title of Guru Granth Sahib. This is now the Guru of the Sikhs. [570B C] An important characteristic of the teachings of the Sikh Gurus is their emphasis upon the message, the Bani. It is this stress which made possible the transfer of Guruship to the scripture. The human Gurus were the instruments through whom the voice of the God became audible. [570D] The holiest book of the Sikhs is Guru Granth Sahib complied by the Fifth Master, Guru Arjun. It is the Bible of Sikhs After giving his followers a central place of worship, Hari Mandir, he wanted to give them a holy book. So he collected the hymns of the first four Gurus and to these he added his own. Now this Sri Guru Granth Sahib is a living Guru of the Sikhs. Guru means the guide. Guru Granth Sahib gives light and shows the path to the suffering humanity. Wherever a believer in Sikhism is in trouble or is depressed he reads hymns from the Granth. Whenever the Sikhs needed guidance or counsel, they should assemble before the Granth in all sincerity and decide their further line of action in the light of teachings of the Master, as embodied in the Granth. The noble ideas embodied in the Granth would live for ever and show people the path to blisss and happiness. [570E F; 571B] 3.2. Temples are found almost in every religion but there are some differences between the Sikh temples and those of other religions. The Sikh Gurudwaras have the following distinctive features: [571C] 1. Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurudwara. The central object of worship 567 in a Gurudwara is Sri Guru Granth Sakib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A Sikh thus worships the Holy Words that are written in the Granth Sahib, the words or Shabada about the Eternal Truth or God. No idol or painting of any Guru can be worshipped. [571C D] 2. Sikh worship in the Gurudwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the Gurudwara. [571E F] 3. Gurudwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not, to know where hospitality is available. There may be complexity of rooms in a Gurudwara for the building may also serve as a school, or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the Gurudwara will also be used as a clinic. But its pivotal point is the place of worship and the main room will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself. [571G H; 572A] 3.3. The sine qua non for an institution being a Sikh Gurudwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the Judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a Gurudwara. Any learned person can read Guru Granth Sahib and explain to the congregation. [572B C] Hem Singh and Others vs Basant Das & Anr. (1935 36) L.R. 631 IA 180; Bawa Ishar Dass & Others vs Dr. Mohan Singh and Others, Arjan Singh vs Inder Das ; Harnam Singh vs Gurdial Singh ; Mahant Dharam Das etc. vs State of Punjab & Ors. ; Sohan Das vs Bela Singh & Ors. AIR 1934 Lah. 180 referred to,

Appeals Nos. 23 92 to 2403 of 1969. Appeals by certificate from the judgment and order dated September 9, 1968 of the Delhi High Court at New Delhi in Civil Writs Nos. 67 to 78 of 1968. section C. Manchanda, B. B. Ahuja, section P. Nayar and R. N. Sachthey for the appellants. N. D. Karkhanis, Rameshwar Nath and Seita Vaidialingam for the respondents. The Judgment of the Court was delivered by HEGDE, J. These appeals by certificate arise from several writ petitions filed by the H.U.F. M/s. Rai Singh Deb Singh Bist and its Karta Thakur Mohan Singh Bist, challenging the validity of certain notices issued under section 34(1) (a) of the Indian Income tax Act, 1922 (in short the Act) by the Income tax Officer, Central Circle 1, Delhi. The High Court of Delhi allowed those writ petitions and quashed the impugned notices. Hence these appeals. The assessee in these cases is an H.U.F. The assessment years with which we are concerned in these appeals range from 1942 43 to 1953 54. The assessee filed its returns for these years in due time. The assessee 's account books showed considerable cash credits in the name of the brothers in law of the 2nd respondent, the Karta of the H.U.F. Those alleged creditors were living in Nepal. The account books also showed certain credit entries in the name of Rana Anand Nar Singh, alleged to be in connection ' with expenses incurred by him for getting trees cut on behalf of the assessee. The assessee was a forest contractor. He had taken large tracts of forests for felling trees in Nepal. The Income tax 104 Officer went into the genuineness of the cash credit entries standing in the name of the alleged creditors of the assessee as well as to the alleged amount due to one of them. The contention of the assessee was substantially accepted either by the Appellate Assistant Commissioner or by the Revenue Appellate Tribunal. With regard to the assessment for the assessment years 1943 44 to 1949 50, the final assessments were made in pursuance of an agreement or settlement arrived at between the assessee and the Deputy Director of Inspection (Investigation) New Delhi on October 18, 1954: Long after the assessments in question were final ised, the Income tax Officer. issued notices to the appellants under section 34(1) (a) of the Act seeking to reopen the assessments already finalised. The validity of those notices is in issue. Before an Income tax Officer can issue a statutory notice under section 34 (1 ) (a), he must have reason to believe that by reason of omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for the years in question, income, profits or gains chargeable to income tax have escaped assessment during those years. Further, before doing so, he must have recorded his reasons for acting under section 34(1) (a) and the Central Board of Revenue must have been satisfied on those reasons that it is a fit case for the issue of the notice. The recording of the reasons in support of the belief formed by the Income tax Officer and the satisfaction of the Central Board of Revenue on the basis of the reasons recorded by the Income tax Officer that it is a fit case for issue of notice under section 34 (1 )(a) are extremely important circumstances to find out whether the Income tax Officer had jurisdiction to proceed under section 34(1) (a). In Calcutta Discount Co. Ltd. vs Income tax Officer, Com panies District 1. Calcutta and anr.(1) this Court laid down (1) that to confer jurisdiction under section 34 to issue notice in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year, two conditions had to be satisfied. The first was that the Income tax Officer must have reason to believe that income, profits or gains chargeable to income tax had been under assessed. The second was that he must also have reason to believe that such "under assessment" had occurred by reason of either (1) omission or failure on the part of an assessee to make a return of his income under section 22, or (2) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the ' Income tax Officer could have jurisdiction to issue a notice for the assessment or re assessment beyond the period (1)41 I.T.R. 191. 105 of four years but within the period of eight years from the end of the year in question. In Chhugamal Rajpal vs section P. Chaliha and ors.(1) this Court ruled that before an Income tax Officer can be said to have had reason to believe that some income had escaped assessment, he should have some relevant material before him from which he could have drawn the inference that income has escaped assessment. His vague feeling that there might have been some escape of income from assessment is not sufficient. This Court also took the view that the Central Board of Revenue before reaching its satisfaction that the case was a fit one to be proceeded under section 3 4 (1 ) (a) must have examined the reasons given by the Income tax Officer and arrived at its own conclusion and that it is not permissible for it to act mechanically. The same view was again taken by this Court in Sheo Nath Singh vs Appellate Assistant Commissioner of Income tax (Central) Calcutta and ors. (2) In the instant case, the assessee alleged in his writ petitions that there was no relevant material before the Income tax Officer before he issued notices under section 34 (1) (a) on the basis of which he could have had reason to believe that any income had escaped assessment. In the writ petitions the assessee called upon the Income tax Officer to produce the report made by him to the Central Board of Revenue as well as the order of the Central Board of Revenue thereon. Despite this prayer, neither the Union of India nor the Income tax Officer cared to produce the report made by the Income tax Officer to the Central Board of Revenue under section 34(1) (a) or the order of the Central Board of Revenue. Before the hearing of the writ petitions commenced, the assessee again applied to the Court to call upon the Union of India and the Income tax Officer to produce those documents. In response to that application, an affidavit was filed before the Court stating that the relevant records could not be traced from the file of the Central Board of Revenue. Assuming that the concerned records were missing from the file of the Central Board of Revenue, the copy of the report made by the Income tax Officer and the order received by him must have been in the file of the Income tax Officer. No reason was given for not producing those records. These circumstances give rise to an adverse inference against the department. We are constrained to come to the conclusion that the records in question were not produced because they did not assist the department 's case. Under these circumstances, it is not possible. to come to the conclusion that the facts necessary to confer jurisdiction on the Income tax Officer to proceed under section 3 4 1 ) (a) had been established. (1) (2) 8 7. 106 All that was said on behalf of the department was that some time in the year 1955, the assessee sold large tracts of land to two of his brothers in law for a sum of Rs. 47 lakhs but in reality that property was not worth that amount. We do not know whether there was any basis for this conclusion. As seen earlier the cash credit entries were brought to the notice of the Income tax Officer before the relevant assessment orders were passed. He had an occasion to investigate into them. It is not necessary to go into this question more deeply in view of the fact that there is nothing to show that there was any relevant material before the Incometax Officer before he issued the notices under section 34 (1) (a) to have reason to believe that as a result of the assessee 's failure to state in its return truly and fully any fact, any income had escaped assessment. In the result these appeals fail and they are dismissed with costs one hearing fee. S.C. Appeals dismissed.

As a result of a judicial enquiry in relation to a complaint by the appellant against the four respondents, summons were issued to the respondents, and before the Magistrate, evidence, oral and documentary, was adduced by the complainant (appellant) in the presence of the accused (respondents). On a consideration of those materials, the Magistrate framed charges against I all the four accused under sections 120 B/409 1. P.C. and under section 409, against accused 1 to 3, in September 1968. Thereafter, the trial proceeded, a large volume of oral and documentary evidence was let in, and all that remained was the examination of two prosecution witnesses and a court witness before closing the trial. All the prosecution witnesses, examined till then were also cross examined by the respondents. At that stage, in March 1969, the 4th accused moved the High Court for quashing the proceedings and the other accused followed with similar petitions. The High Court, in spite of the complainant representing that the trial had almost come to a close quashed the charges and proceedings on the grounds that, the complainant had suppressed material facts, that the two prosecution witnesses should not be allowed to be examined 'in the circumstances of the case ', that the ' examination of the court witness was not necessary as it would only prejudice the accused and under the effect of cross examination, and that the evidence on record ruled out any offence of breach of trust or a conspiracy to commit it. Allowing the appeal to this Court, HELD : The High Court was in error (a) It is not as if the accused had moved the High Court at the earliest stage when summons was issued to them. Nor had they ,approached the High Court when charges were framed against them. If the case of the accused was that the allegations try the complaint did not constitute the offences complained of or that the complainant was to be quashed on any other ground available in law, the accused should have approached the High Court at least when the charges were framed. [186DE] (b) Assuming there was a suppression of material facts by the complainant that was a matter to be considered by the trial Court. Similarly, whether the evidence on record established that an offence of breach of trust or a conspiracy to commit it, had been committed, Is again a matter for the trial court to come to a conclusion after, an appraisal of the entire evidence let in by the prosecution and the defence. The High Court was not justified, at that stage, to have embarked upon an appreciation of the evidence. [187AC] (c) The accused never challenged the order of the trial court regarding the examination of prosecution witnesses or the court witness, and 180 the High Court was not justified in holding that they should not be examined, and hence, the order regarding their examination should stand. Jamatraj Kewalji Govani vs The State of Maharashtra, , referred to. (d) If the High Court had passed the order quashing the charges and proceedings in exercise of its inherent jurisdiction under s.561A, Cr. P.C. then the exercise of the power by the High Court was not justified, because, the present case does not come within the ambit of the principles laid down by this Court, in R. K. Kapur vs The State of Punjab, [188 A C] (e) Even assuming that the High Court was exercising jurisdiction under section 439, Cr. P.C., the present was not a. case for interference by the High Court. The jurisdiction of the High Court is to be exercised nearly, under the section, only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law and consequently a flagrant miscarriage of justice. [188D]

vil Appeal Nos. 2270 73 of 1987 & 17 13/1990. From the Judgment & Order dated the 11.8.1978 of the Karnataka High Court in Writ Petition No. 4609/76, 4610/76 & 4611 of 1976. P.P. Rao and S.R. Bhatt for the Appellants. M. Veerappa for the Respondents. The Judgment of the Court was delivered by SINGH, J. Special leave granted. These appeals are directed against the judgment of a Division Bench of the High Court of Karnataka dated August 11, 1978 dismissing the appellants ' writ petition under Article 226 of the Constitution of India challenging validi ty of the revised select list prepared by the Karnataka Public Service Commission for appointment to the posts of Tehsildars. In the State of Karnataka recruitment to the posts of Tehsildars is regulated by the Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules 1975 (hereinafter referred to as 1975 Rules). The Karnataka Public Service Commission (hereinafter referred to as the Commission) issued a Notification on May 23, 1975 (published on May 29, 1975) inviting applications from in service candidates for recruitment to 50 posts of Tehsildars. Para graph 3 of the Notification specified details of the posts reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward classes including 10% of posts set apart for Ex Military Personnel. According to the figures specified, therein, out of 50 posts of 243 Tehsildars, 5 posts were reserved for Ex Military Personnel, 7 posts for Schedule Castes, 1 post for Schedule Tribes and 13 posts for other Backward classes. Paragraph 3 of the advertisement stated that in the event of non availability of sufficient number of candidates belonging to Scheduled Castes. Scheduled Tribes and other Backward classes or Ex Military personnel, for filing to the reserved vacancies, such vacancies shall be filled up as per Rules in force. The Notification further gave details of the written and viva voce examinations. Para 14 of the Notification stated that the provisions of 1975 Rules and Rules 7 to 14 of the Karna taka Recruitment of Gazetted Probationers (Class I and II posts Appointment by Competitive Examination) Rules 1966 (hereinafter referred to as 1966 Rules), shall mutatis mutandis apply to the conduct of the competitive examination and the provisions of the Karnataka State Civil Services (General Recruitment) Rules 1957 (hereinafter referred to as 1957 Rules) shall apply in respect of matters for which no provision is made in the Rules. Pursuant to the advertisement, the appellants who were in service of the State Government applied for their selection and appointment to the posts of Tehsildars. After the written examination and viva voce test the Commission finalised the list of successful candidates and published the same in the Karnata ka Gazette dated March 18, 1976. The Commission also noti fied in additional list of successful candidates for ap pointment to the posts of Tehsildars in accordance with 1975 Rules, which included the names of the appellants. In pre paring the select list and making reservation to the various categories, the Commission followed the directions and the procedure as contained in the Government Order dated 6th September 1969. The State Government refused to approve the list prepared by the Commission as in its opinion the reser vation for the Scheduled Castes, Scheduled Tribes and other Backward classes should have been made in accordance with the directions and procedure contained in the Government Order dated 9th July 1975. The State Government by its order dated 23rd April 1976 directed the Commission to prepare a fresh list of successful candidates by making reservations in accordance with the procedure contained in the Government order dated 9th July 1975. Pursuant to the directions of the State Government the Commission prepared the select list afresh, after making reservations in accordance with the procedure prescribed by the Government Order dated 9th July 1975, and published the same on 27th May 1976. The appel lants ' names did not figure in the revised list of candi dates. The appellants challenged validity of the Government Order dated 23rd April 1976 as well as the revised list prepared by the Commission and also the validity of the Government Order dated 9th July 1975, by means of writ petitions before the High Court 244 on a number of grounds. A Division Bench of the High Court by its order dated 11th August 1978 dismissed the petitions. Hence these appeals. The appellants had challenged validity of the Government Order dated 9th July 1975, prescribing mode for preparing the select list by, making reservation for Scheduled Castes, Scheduled Tribes and other Backward classes, on the ground that the same was inconsistent with the statutory Rule 10 of 1966 Rules and further on the ground that the directions contained therein were violative of Articles 16(1) and 16(4) of the Constitution Of India. The High Court rejected both the contentions holding that the directions contained in the Government Order dated 9th July 1975 were not violative of Rule 10(2) and there was no violation of Article 16 of the Constitution. The High Court upheld the Government Order dated 23rd April 1976 directing the Commission to prepare the select list afresh in accordance with the mode pre scribed under the Government Order dated 9th July 1975. Learned counsel for the appellants did not pursue the chal lenge relating to the validity of the Government Order dated 9th July 1975 before us instead he assailed the validity of the State Government 's Order dated 23rd April 1976 directing the Commission to prepare a revised list in accordance with the Government Order dated 9th July 1975, on the ground the Government Order was not applicable to the selection. 'Learned counsel for the appellants urged that the Commission had rightly prepared the list of successful candidates published on 18th May 1976 in accordance with the directions contained in the Government Order dated 6th September 1969 by making reservation of posts of Scheduled Castes, Scheduled Tribes and other Backward classes but the State Government wrongly refused to approve the said list. He urged that the mode of selection and procedure for making reservation as prescribed by the Government Order dated 9th July 1975 was not applicable to the selection as advertise ment had been issued in May 1975, and the process of selec tion had already commenced prior to the issue of the Govern ment Order dated 9th July 1975. The revised list of success ful candidates prepared by the Commission pursuant to the Government 's directions dated 23rd April 1976 was illegal and contrary to the Rules. Learned counsel for the respond ents submitted that the Government Order dated 9th July 1975 prescribed mode of selection and it also prescribed proce dure for making reservations for Scheduled Castes, Scheduled Tribes and other Backward classes in supersession of the earlier Government Order including the Government Order dated 6th September 1969 therefore the Commission was 245 found to follow the procedure as prescribed in the aforesaid order in preparing the select list. Since the list of suc cessful candidates had not been prepared in accordance with the Government Order dated 9th July 1975 the State Govern ment was justified in insisting upon the Commission to prepare the list afresh in accordance with the directions contained in the aforesaid Government Order. The question which requires determination is, which of the two Government Orders, namely, 6th September 1969 and 9th July 1975, the Commission was required to be followed in preparing the select list for appointment to the posts of Tehsildars as both the Government Orders contained direc tions for making reservations in preparing the select list. In order to determine the question, it would be necessary to refer to the directions contained in the two Government Orders. There is no dispute that the recruitment of in service candidates for the 50 posts of Tehsildars in dis pute, was regulated by the 1975 Rules framed under Article 309 of the Constitution as published in the Gazette on 20th March 1975. Rule 5 laid down that the provisions of Rules 7 to 14 of 1966 Rules shall mutatis mutandis apply to conduct of competitive examination and the provisions of Karnataka State Civil Services (General Recruitment) Rules 1957 shall apply in respect of matters for which no provi sion is made in the Rules. The aforesaid Rules do not pre scribe any procedure for preparation of select list or for making reservations but in view of Rule 5 the provisions of other Rules are made applicable. Rule 10 of the Karnataka Rules 1966 which provides for reservations for Scheduled Castes, Scheduled Tribes and other Backward classes was applicable in view of Rule 5 of 1975 Rules. Rule 10 of 1966 Rules is as under: "10. Reservation for Scheduled Castes, Scheduled Tribes and other backward classes (1) There shall be reservation of vacancies for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes to the extent provided for by the Government by any general or special orders. (2) In filling the vacancies to reserved, candi dates who are members of the Scheduled Castes and Scheduled Tribes and other Backward Classes shall be considered for appointment in the order of merit in which their names appear in the list of successful candidates irrespective of their relative rank as compared with other candidates and to services according to the reservation made for them in such services. 246 (3) If a sufficient number of candidates who are members of the Scheduled Castes, Scheduled Tribes and other backward classes are not available for filling up the vacan cies reserved for them, such vacancies shall be filled up by the appointment of other candidates in the list. " Pursuant to Clause (1) of Rule 10 of the State Government has been providing for reservation of vacancies in favour of candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward classes by means of executive orders issued from time to time. The Government Order dated 6th September 1969, was issued under Rule 10(1) which provided that reservations for appointment to post in the State Civil Service shall continue to be made in favour of Scheduled Tribes, Scheduled Castes and other Backward classes to the extent of 3%, 15% and 30% respectively, where the posts are filled up by direct recruitment. Para 5 of the Government Order directed that the Commission and other recruiting authorities shall follow the procedure prescribed in Annex ure 2 to the Government Order in making reservations and preparing list of selected candidates. There is no dispute that the Commission had prepared the select list which was published on 18th March 1976 in accordance with the proce dure laid down in Annexure 2 to the Government Order dated 6th September 1969. During the pendency of selection, the State Government issued the order dated 9th July 1975 revising the extent of reservation and also prescribing a different mode of selec tion. Para 4 of that Government Order laid down that while making appointment to the State Civil Services, reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward classes shall be made to the extent of 15%, 3%, 3% and 28% respectively, in case of direct recruitment. Para 6 of the Order further directed that in case of direct recruitment where the selection is made by the Public Service Commission or any other recruit ing authority, the procedure as prescribed in Annexure 2 to the Order shall be followed in preparing the list of select ed candidates. Annexure "to the Order prescribed mode of selection, which is quite different than that contained in Annexure 2 to the Government Order dated 6th September 1969. It is not necessary to go into the details of the two modes as there is no dispute that the Commission had followed the procedure as prescribed under Annexure .? to the Government. Order dated 6th September 1969 and the list, so prepared was not approved by the State Government as it was of the opin ion that the Commission should have followed the mode of selection as contained in Annexure 2 to the Government Order dated 247 9th July 1975 in preparing the select list. It appears that the Commission insisted before the State Government that in view of Para II of the Government Order dated 9th July 1975 reservations made in favour of Scheduled Castes, Scheduled Tribes and other Backward classes already notified before the issue of Government Order dated 9th July 1975 remain unchanged therefore the provisions of the Gov ernment Order dated 6th September 1969 had to be followed both in regard to reservations and the mode of selection. The State Government by its Order dated 23rd April 1976 refused to accept the Commission 's plea and it directed the Commission to prepare a revised list in accordance with the provisions of Government Order dated 9th July 1975. The State Government while rejecting the Commission 's plea and issuing the aforesaid direction made observations as under: "Para 11 of the G.O. dated 9th July 1975 supersedes a11 the previous Government Orders cited in the preamble to that order, including the G.O. dated 6th September 1969. The same para states that the order, came into force with immediate effect, but makes only one exception i.e. in the matter of reservations already made in the cases of posts and serv ices, for which advertisement had been issued prior to the coming into force of the G.O. dated 9th July 1975. This means that except in the matter of reservations made in posts for which applications had already been called for, in all other matters the provisions of the G.O. dated 9th July 1975 would apply. The words are clear that the intention is also clearly spelt out. Hence so far as the mode of selec tion is concerned, the one prescribed in Annexure II to the G.O. dated 9th July 1975 will have to be followed in respect of all selections made after that date either a literal construction or a harmonious construction of the various clauses of the G.O. dated 9th July 1975 leads to the above conclusion. For these reasons the Commission 's view that in respect of posts already advertised prior to the issue of the Government Order dated 9th July 1975, the mode of selec tion prescribed in the earlier Government Orders and to be followed is not acceptable to Government. " In our opinion the State Government 's view was contrary to the directions contained in para 11 of its Order dated 9th July 1975, which is as under: 248 1. This Government Order supersedes the Government Order cited in the preamble and shall come into force with immediate effect, subject to the provision that the reserva tion already made for any category of posts or service and advertised before the issue of this Government Order shall remain unchanged and shall be deemed to have been validly made. All official memoranda, Circulars and instructions issued in pursuance of the Government Orders superseded by this Government Order shall also be deemed to have been superseded if such instructions are contrary to the provi sions of this Government Order." (emphasis supplied). Indisputably the aforesaid Government Order superseded all earlier Government Orders on the subject including the Government Order dated 6th September 1969 but while super seding those orders provision was made in para 11 to save the selection which was pending. Para 11 clearly stated that though earlier Government Orders laying down percentage of reservation required to be made in favour of Scheduled Castes, Scheduled Tribes and other Backward classes includ ing the mode of selection in preparing the select list, stood superseded, but it saved the reservations made for any category of post or service in respect of which advertise ment had already been issued before the issue of the Govern ment Order dated 9th July 1975. This follows from the ex pression "reservations already made for any category of posts or service and advertised before the issue of this Government Order shall be deemed to have been validly made". These directions stipulated that where reservations were already made and advertisement had been issued, and the selection was pending on 9th July 1975, the same shall remain unaffected and the selection shall be made in accord ance with the earlier Government Orders, and the same shall be treated to have been made validly. Para 11 is in the nature of a saving clause, its object and purpose, was to save the selections in respect of which proceedings had already been initiated by issuing advertisement. In view of the Government 's own directions, as contained in para 11 of its Order the amended mode of selection was not applicable therefore the Commission rightly followed the mode of the selection prescribed under the Government Order dated 6th September 1969 as admittedly the said Order was in force prior to 9th July 1975. The State Government 's interpretation of para 11 of its Order dated 9th July 1975 was incorrect and wrong. It failed to appreciate that in the instant case reservations. had already been made and 249 notified under the advertisement published on 18th May 1975. Therefore the conditions precedent contemplated in para 11 were fully satisfied. In this view the selection made by the commission by following the reservations and the mode of selection as prescribed under the provisions of the Govern ment Order dated 6th September 1969 were deemed to have been made validly in accordance with the provisions of para 11 of the Government Order. It is relevant to point out that the Government Orders dated 6th September 1969 and 9th July 1975 both had been issued by the Government in exercise of its statutory power under Rule 10 of 1975 Rules, making provi sions for reservations and prescribing mode of selection. A Government Order issued in exercise of statutory powers acquires statutory force, therefore, the provisions con tained in the aforesaid Government Orders including the provisions of para 11 of the Government Order dated 9th July 1975 also acquired statutory character. Though para 11 superseded earlier Government Orders but it expressly saved the pending selections where reservations were already made and advertisement had been issued. Para 11 being statutory in nature was binding on the Government and the Government had no authority to direct the Commission by means of Admin istrative Order to revise the Select List in accordance with the amended mode of selection as prescribed under the Gov ernment 's Order dated 9th July 1975. In our opinion the State Government was bound to give full effect to the provi sions of Para 11 of the Government Order dated 9th July 1975 and therefore directions contained in its order dated 23rd April 1976 were illegal. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the adver tisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertise ment, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have 238 retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selec tion must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms con tained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature. In B.N. Nagarajan & Ors. vs State of Mysore & Ors. , , the dispute related to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing Notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960. The Commission made selec tion, interviewed the candidates and sent the select list to the Government in October/November 1960. But before the appointment could be made the Mysore Public Works, Engineer ing Department Services (Recruitment) Rules 1960 came into force which prescribed different provisions than those prescribed in the earlier Notifications in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the Government on the basis of the selection made by the Commission was chal lenged. The High Court quashed the selection and appoint ments made in pursuance thereof. On appeal before this Court, validity of the appointment were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid. 250 In Y.V. Rangaiah J. Sreenivasa Rao, similar Question arose relating to recruitment by promotion. The question was whether promotion should be made in accord ance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under: "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. " The same view was taken in P. Ganeshwar Rao & Ors. vs State of Andhra Pradesh & Ors., [1988] Supp. SCC 740. Similar view was taken in A.A. Calton vs Director of Education & Ors., [ 1983] 3SCC 33. It is a well accepted principle of construc tion that a statutory rule or Government Order is prospec tive in nature unless it is expressly or by necessary impli cation made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amend ed rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra & Ors. vs State of Karnataka & Ors. , [1989] 4 Judgment Today SC 459. In the instant case, para 11 of the Government Order dated 9th July 1975 made the Government 's intention clear that the revised directions which were contained in that Government Order would not apply to the selections in re spect of which advertisement had already been issued, there fore the mode of selection as contained in Annexure 2 to the Government Order dated 9th July 1975 was not applicable to the selection for filling the 50 posts of Tehsildars pending before the Public Service Commission. We are, therefore, of the opinion that the 251 select list including the additional list as prepared by the commission and published in March 1976 was legal and valid and though Government wrongly refused to approve the same. The State Government 's Order dated 23rd April 1976 directing the Commission to prepare fresh list in accordance with the mode of selection as contained in Annexure 2 to the Govern ment Order dated 9th July 1975 was illegal consequently the select list prepared afresh by the Commission pursuant to the directions of the State Government is not sustainable in law. Since the additional list prepared by the Commission contained the names of the appellants, they were entitled to appointment to posts of Tehsildars. We accordingly allow the appeals set aside the order of the High Court and direct the State Government to appoint the appellants to the posts of Tehsildars, on the basis of additional list published by the Commission on 18th March 1976. During the pendency of the writ petition before the High Court, appointments were made to the posts of Tehsildars on the basis of the revised list prepared by the Commission in accordance with the directions of the State Government dated 23rd April 1976. Pursuant to the interim direction of the High Court the appointment orders contained a specific term that the appointments would be subject to the result of the writ petition filed by the appellants. Since the appellants have succeeded, the respondents ' appointment is liable to be set aside. The respondents have been working for a period of about 14 years, it would cause great hardship to them if their appointment is quashed, and they are directed to vacate the office which they have been holding during all these years. At the same time the appellants have been wrongly denied their right to the posts of Tehsildars. Having regard to these facts and circumstances, we are of the opinion that it would be expedient in the interest of justice not to interfere with the respondents ' appointment but at the same time steps should be taken to enforce the appellants ' right to the posts of Tehsildars. In this view, we direct the State Government to appoint the appellants on the posts of Tehsildars with retrospective effect, but if no vacancies are available the State Government will create supernumerary posts of Tehsildars for appointing the appel lants against those posts. We further direct that for pur pose of seniority the appellants should be placed below the last candidate appointed in 1976, but they will not be entitled to any back wages. The appellants will be entitled to promotion if otherwise found suitable. In the circumstances of the ,case, parties shall bear their own costs. S.B. Appeals allowed.

The Karnataka Public Service Commission issued a notifi cation on 23rd May 1975 inviting applications from in serv ice candidates for recruitment to 50 posts of Tehsildars. In para 14 of the notification it was stated that provisions of 1975 Rules, and Rules 7 to 14 of the Karnataka Recruitment of Gazetted Probationers (Class I & 11 posts Appointment by Competitive Examination) Rules, 1966 shall mutatis mutandis apply to the conduct of the competitive Examination and the provisions of the Karnataka State Civil Services (General Recruitment) Rules, 1957 shall apply in respect of matters for which no provision is made in the Rules. In preparing the select list and making reservations to the various categories, the Commission followed the direc tions and the procedure as contained in Government Order dated 6th September 1969. The State Government refused to approve the list and directed the Commission on 23.4.76 to prepare the list afresh following the Government Order dated 7th July 1975. The Commission thereupon prepared the list afresh as per Government Order of 7th July 1975. In the revised list, the appellants names did not figure. The appellants challenged the validity of the Government Order dated 23rd April 1976 as well as the revised list and the validity of the Government Order dated 9th July 1975 by means of writ petitions before the High Court on a number of grounds. The appellants contended that the Government Order dated 7th July 1975 prescribing mode of preparing the select list by making reservations for various categories was inconsistent with the statutory Rule 10 of 1966 Rules, and further the directions contained therein were violative of Articles 16(1) and 16(4) of the Constitution of India. 240 The High Court rejected both the contentions holding that the directions contained in Government Order of 9th July 1975 were not violative of Rule 10(2) and there was no violation of Article 16 of the Constitution. The High Court also upheld the Government Order dated 23.4.76 directing the Commission to prepare the select list afresh in accordance with the mode prescribed vide Government Order of 9th July 1975. In this Court, the appellants did not pursue their challenge to the validity of the Government Order dated 9.7.75 but they assailed the validity of Government Order dated 23.4.76 wherein the Government directed the Commission to prepare a revised list in accordance with the Government Order dated 9.7.75 on the ground that the Government Order was not applicable to the pending selection. The appellants also urged that the mode of selection and procedure for making reservations as prescribed by Govern ment Order of 9th July 1975 was not applicable to the selec tion as advertisement had been issued in May 1975 and the process of selection had already commenced prior to the issue of Government Order dated 9th July 1975, and that the revised list of successful candidates prepared by the com mission as per Government directions of 23.4.76 was illegal and contrary to the Rules. On behalf of the Respondents it was submitted that the list of successful candidates had been prepared in accord ance with Government Order dated 9th July 1975, the State Government was justified in insisting upon the Commission to prepare the list afresh in accordance with the directions contained in the aforesaid order. Allowing the Appeals and setting aside the Order of the High Court, HELD: (1) Where advertisement is issued inviting appli cations for direct recruitment to a category of posts and the advertisement expressly states that selection shall be made in accordance with the existing rules or Government Orders and if it further indicated the extent of reserva tions in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders if any. (2) Whether the Rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. 241 (3) Indisputably the Government Order of 9th July 1975 superseded all earlier Government Orders including that of 6th September 1969 but in para II it saved the selection which was pending i.e. it saved the reservations already made for any category of post or service in respect of which advertisement had already been issued before the issue of Government Order dated 9th July 1975. Para II was in the nature of a saving clause, and the Commission rightly fol lowed the mode of selection prescribed under the Government Order in force prior to Government Order of 9th July 1975. The State Government was bound to give full effect to the provisions of para II of Government Order dated 9th July 1975. therefore directions contained in its order dated 23.4.76 were illegal [248C E; 249E] 4. Another aspect of the instant case is that where advertisement is issued for direct recruitment to a category of posts expressly stating that selection shall be made in accordance with the existing rules or Government Orders and also indicates the extent of reservations in favour of various categories, the selection of candidates must be made in accordance with these rules and Government Order. The candidates who applied for selection in pursuance of the advertisement, acquired vested right for being considered for selection in accordance with the terms and conditions of the advertisement. [249E G] 5. In case the recruitment Rules are amended retrospec tively during the pendency of the selection then selection has to be made in accordance with the amended rules. Whether rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent, either by express provi sion or by necessary implication. If the amended Rules are not retrospective in nature the selection must be regulated in accordance with the existing Rules and orders in force at the time of advertisement. [249H; 250A B] (6) It is a well accepted principle of construction that Statutory Rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. [251 D] (7) In the instant case, para II of the Government Order dated 9th July 1975 made the Governments intention clear that the revised directions which are contained in the said Government Order would not apply to the selection in respect of which advertisement had already been issued. Therefore the mode of selection as contained in Annexure to the Gov ernment Order dated 9th July 1975 was not applicable to the selection for filling 50 posts of Tehsildars pending before the Public Service Commission. [251G H] 242 8. Having regard to the facts the circumstances of the case. it would be expedient in the interest of justice not to interfere with the respondents ' appointment but the State Government is directed to appoint I the appellants on the posts of Tehsildars with retrospective effect. If no vacan cies are available the State Government is directed to create supernumerary posts of Tehsildars for appointing the appellants against those posts. For purposes, of seniority the appellants should be placed below the last candidate appointed in 1976 but they will not be entitled to any back wages. [252F G]

Civil Appeal No. 277 of 1969. Appeal from the Judgment and Order dated 30 8 67 of the Punjab and Haryana High Court in L.P.A. No. 50/67. Naunit Lal for the Appellants. section K. Bisaria for Respondent No. 2. 848 Appeal set down ex parte for RR 1 and 3. The Judgment of the Court was delivered by SARKARIA, J. This appeal on certificate is directed against a Full Bench judgment of the High Court at Chandigarh, rendered on November 22, 1968 in Letters Patent Appeal No. 47 of 1967. It arises out of these facts: Bishan Das was a displaced person from West Pakistan, where he owned a considerable area of agricultural land. He died on April 11, 1948, after his migration to India, leaving behind his five sons, who are the appellants before us. After Bishan Das 's death, the Rehabilitation Department allotted 124 standard acres and 1/4 unit of evacuee land in his (Bishan Das) name on August 26, 1949. Permanent rights in regard to this allotted land were conferred by the Managing Officer on behalf of the President of India under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, in the names of the sons of Bishan Das on January 2, 1956. Prior to it, a mutation was allowed by the Rehabilitation Authorities on February 17, 1953 in favour of the appellants, herein, showing each of them entitled to 24 standard acres and 13 units of land. Ram Dhan, respondent 2, was in possession of the land as a tenant. The appellants applied under Section 9(1) (i) of the Punjab Security of Lands Tenure Act, 1953 (hereinafter called the Act) for his ejectment on the ground that each of them is a 'small land owner ' as defined in Section 2(2) of the Act; and that they require the land for self cultivation. The Assistant Collector, Hissar, rejected their application. Their appeal was dismissed by the Collector, on January 4, 1965. Their Revision was rejected by the Commissioner of Ambala Division on October 26, 1965. Their further Revision to the Financial Commissioner, also, met the same fate on May 17, 1966. The appellants then moved the High Court by a writ petition under Articles 226 and 227 of the Constitution, alleging that the aforesaid orders of the Assistant Collector, Commissioner and the Financial Commissioner, were illegal, without jurisdiction and ultra vires the provisions of the Act and the rules made thereunder. Their contention was that the land had been allotted to them in lieu of the land abandoned by their father, Bishan Das, in Pakistan, and consequently, the permissible area of each of them is to be computed under Proviso 849 (ii) to Section 2(3) of the Act, and so computed, the holding of each of the five would be well below the permissible limit of 30 standard acres prescribed thereunder. It was further contended that since the allotment was made in standard acres, and not in ordinary acres, the 'permissible area ' of each of the appellants would be 30 standard acres, notwithstanding the fact that on conversion into ordinary acres, it exceeds 60 ordinary acres. On these grounds, the appellants claimed that each of them is a 'small land owner ' and as such, entitled to move for eviction of the tenant under Section 9(1) (i) of the Act. The learned Single Judge of the High Court dismissed the writ petition. Munshi Ram and his four brothers filed Letters Patent Appeal, which was eventually heard by a Full Bench. The Bench held that since the appellants were not 'displaced persons ' within the meaning of the East Punjab Displaced Persons (Land Resettlement) Act, 1949, the concession of an enhanced permissible area under Proviso (ii) to sub section (3) of Section 2 of the Act was not available to them, and their permissible area would be 60 ordinary acres, each; that since the holding of each of the appellants exceeds that limit, they are not 'small land owners ', and as such, were not competent to seek ejectment of the tenant. With this reasoning, the Full Bench dismissed the appeal. Before considering the contentions canvassed, let us have a look at the definition of 'permissible area ' in Section 2(3) of the Act. This definition reads as under : " 'Permissible area ' in relation to a landowner or a tenant, means (thirty standard acres) and where such thirty standard acres on being converted into ordinary acres exceeds sixty acres such sixty acres; Provided that (i) . . . (ii) for a displaced person (a) who has been allotted land in excess of fifty standard acres, the permissible area shall be fifty standard acres or one hundred acres, as the case may be; (b) who has been allotted land in excess of thirty standard acres, but less than fifty standard 850 acres, the permissible area shall be equal to his allotted area; (c) who has been allotted land less than thirty standard acres the permissible area shall be thirty standard acres, including any other land or part thereof, if any, that he owns in addition. Explanation. For the purposes of determining the permissible area of a displaced person, the provisions of proviso (ii) shall not apply to the heirs and successors of the displaced person to whom land is allotted. " The first contention of Mr. Naunit Lal is that the words "such thirty standards acres" in the substantive part of the definition clearly exclude conversion into ordinary cases, where the area held in standard acres falls below 30 standard acres. In short, the point sought to be made out is that the definition ensure an irreducible minimum of 30 standard acres to a land holder. The contention does not stand a close examination. The flaw in the proposition propounded by the counsel is that it takes into account only one aspect of the definition while ignoring the other. As rightly observed by the High Court, in devising this formula for computing the permissible area, the Legislature was concerned to put limits on the holdings of land both in its qualitative and quantitative aspects. The concept of 'standard acre ', being 'a measure of area convertible into ordinary acres of any class of land according to the prescribed scale with reference to the quantity of yield and quality of soil ', has been introduced in the definition of 'permissible area ' to emphasise the qualitative aspect of a land holding, and the maximum limit of 60 ordinary acres delineates its quantitative aspect. The language of sub section (3) of Section 2 is plain and unambiguous. It proclaims in no uncertain terms, the legislative imperative that no land owner or tenant shall hold land exceeding 30 standard acres or 60 ordinary acres. By no stretch of imagination, therefore, the words "such thirty acres" occurring in the definition can be construed to limit the conversion into ordinary acres only to a case where the holding is 30 'standard acres ', and not less. Mr. Naunit Lal next contended that since the land was allotted in the name of Bishan Das deceased, who was a displaced person, the EXPLANATION will not be attracted, with the result that the per 851 missible area of each of his five sons would be 30 standard acres in accordance with Clause (c) of Proviso (ii) of sub section (3) of Section 2. Since each of them was holding only about 24 standard acres, they were small land owners. The argument rests on the fallacy that the land was allotted to a 'displaced person '. The true position is that it was allotted to the sons of Bishan Das, who were not 'displaced persons ' within the contemplation of the aforesaid Proviso (ii). Section 2(11) of the Act says: "Displaced person" has the meaning assigned to it in the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (Act XXXVI of 1949). According to the definition of the term in East Punjab Act XXXVI of 1949, a 'displaced person ' means "a landholder in the territories now comprised in the Province of Punjab in Pakistan or a person of the Punjab extraction who holds land in the (West Pakistan) and who has since the 1st day of March 1947, abandoned or has been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances, or the partition of the country. " Now, the sons of Bishan Das never owned or abandoned any land in West Pakistan. Evidently, they were not 'displaced persons ' within the meaning of Proviso (ii) to Section 2(3). They are merely "heirs of a displaced person" who died after his migration to India. Proviso (ii) therefore, does not apply to the case of the appellants who, and not their father, were the persons to whom the land in dispute has been allotted. The EXPLANATION appended to Section 2(3), therefore, clearly excludes the application of Proviso (ii), to their case. Their case is fully covered by the substantive part of the definition of 'permissible area ' according to which the maximum which they could hold is 60 ordinary acres. Each of them was holding, at the material date, in excess of that area and as such, they were not 'small land owners '. The last contention of Mr. Naunit Lal is that in computing the 'permissible area ' of each of the appellants, the Collector had illegally and wrongfully included uncultivated area of Banjar Jadid, Banjar Qadim and Gair Mumkin land as on April 15, 1953, and had also through some oversight, failed to allow deduction for the dimunition in their holdings resulting from consolidation. The argument is that Banjar land does not fall within the definition of 'Land ' for the purpose of Punjab Security of Land Tenures Act, 1953. In support of this contention, reference has been made to several decisions of the High Court at Chandigarh. According to sub section (8) of Section 2 of the Act, "Land" shall have the same meaning as is assigned to it in the Punjab Tenancy Section 2(c) of that Act defines 'Land ' to mean "land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land". In Nemi Chand Jain vs Financial Commissioner, Punjab(1), H. R. Khanna, J. speaking for a Division Bench of the High Court, held that Banjar Qadim and Banjar Jadid land cannot be taken into account while computing the surplus area, under the Act, because not being occupied or let for agricultural purposes or purposes subservient to agriculture, it does not fall within the purview of 'Land ' under the Act. This ruling has been consistently followed by the High Court in its subsequent decisions, some of which are reported as Sadhu Ram vs Punjab State(2), Amolak Rai vs Financial Commissioner, Planning, Punjab(3) and Jaggu vs Punjab State(4) and Jiwan Singh vs State of Punjab(5). In our opinion, this view taken by the High Court proceeds on a correct interpretation of the statutory provisions as it stood at the relevant time. Learned counsel for the tenant respondent also, does not question the soundness of this view. He, however, does not accept the particulars of the areas of Banjar and Gair Mumkin Land supplied by Mr. Naunit Lal, in the form of a Goshwara. We will, therefore, while upholding the view taken by the High Court in regard to the interpretation and application of Section 2(3) Proviso (ii) of the Act, allow this appeal and set aside the decision of the High Court and the impugned orders of the Assistant Collector, Collector, and the Commissioner and remit the case to the Collector concerned of Hissar District with the direction that he should ascertain the extent of the Banjar Qadim and Banjar Jadid and Gair Mumkin land of the appellants allottees at the relevant date and recompute their permissible area after excluding such Banjar and Gair Mumkin land; then dispose of the applications of the appellants under Section 9(1)(i) afresh. In the circumstances of the case, there will be no order as to costs. N.V.K. Appeal allowed.

The petitioner was detained with effect from October 24, 1977 by an order passed by the Secretary to the Government of Maharashtra under Section 3(1) of COFEPOSA. The Advisory Board reported on 23 12 77 that there was sufficient cause for the detention but the Government did not pass any order confirming the detention within three months from the date of detention. The petitioner assailed it as violative of article 22(4) of the Constitution. Allowing the petition the Court. HELD : 1. since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law. [822 C] 2.The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention. [822 A B] 3.The expression "may confirm" in clause (f) of Section 8 of COFEPOSA, is significant. It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention of the detenu concerned, the Government may not confirm the detention order. Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", the expression definitely leads to the conclusion that the sine qua non for continuing the detention made beyond the period of three months. is the confirmation of the detention order by the appropriate Government. Conversely, non confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance. This position is further clear from the language of Section 10, which provides : "The maximum period for which any person may be detained in pursuance of any detention order. which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention. " The crucial words in the Section are : "which has been confirmed under clause (f) of Section 8." They underscore the same policy which underlies the constitu tional mandate in Article 22(4). These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal. [821 C F] Ujjal Mandal vs State of West Bengal, ; reiterated; Shibapada Mukherjee vs State of West Bengal, AIR 1972 SC 1356, Deb Sadhan Roy vs State of West Bengal, ; Micki Khan etc. vs The State of West Bengal. AIR 1972 SC 2262; and Satyadeo Parshad Gupta vs State of Bihar, ; referred to. 818

ppeal No.200 of 1955. Appeal from the judgment and decree dated January 20, 1943, of the Madras High Court in A. section No. 392 of 1943, arising out of the judgment and decree dated March 30, 1943, of the Sub Judge, Tuticorin in O. section No. 34 of 1939. section V. Venugopalachariar and section K. Aiyangar, for the appellant No. 2. A. V. Viswanatha Sastri, R. Ganaapathy Iyer and G. Gopalakrishna, for respondent No. 1. 1960. January 14. The judgment of the Court was delivered by HIDAYATULLAH J. This appeal has been filed on leave granted by the High Court of Madras against its judgment and decree dated January 20, 1947, by which the decree of the Subordinate Judge, Tuticorin, dated March 30, 1943, was substantially modified. 93 730 Before the application for leave to appeal to the Judicial Committee could be filed, the first defendant (Ramasami Pillai) died, and the application for leave was filed by his widow, R. Muthammal, who was the fourth defendant in the suit. R. Muthammal also died soon afterwards and her place was taken by Parameswari Thayammal (her daughter born of Ramasami Pillai), who was the fifth defendant in this case. Along with these three defendants, the other members of Ramasami Pillai 's family were also joined as defendants. The suit was filed by Sri Subramaniaswami Devasthanam, Tiruchendur (hereinafter called for brevity, the Devasthanam), and the Devasthanam is the only contesting respondent in this Court. One Poosa Pichai Pillai had five sons and three daughters, of whom Meenakshisundaram Pillai died on May 21, 1919. Before his death Meenakshisundaram Pillai executed a registered will on May 20, 1919, and a registered codicil on May 21, 1919. By these documents, he left his entire property to his only son, M. Picha Pillai, with the condition that should he die without issue, the property was to go to the Devasthanam. M. Picha Pillai died a bachelor on December 10, 1927. Three claimants claimed the property after his death. The first naturally was the Devasthanam claiming under the gift over to it. The other two were the heirs of M. Picha Pillai, who asserted that the gift over was void, and Meenakshisundaram 's wife 's brother and sister, Arunachala Irungol Pillai and N.S. Muthammal (third defendant), respectively who claimed under an alleged will of M. Picha Pillai. The heirs of M. Picha Pillai were defendants 7, 8, 10, 13 and 14, the father of defendants 9, and the first defendant. These claimants denied the claim of the Devasthanam, contended that the will and the codicil above mentioned gave an absolute estate to M. Picha Pillai, and that the gift over to the Devasthanam was, therefore, void. The Devasthanam filed O.S.No. 57 of 1932 for declaration and possession of the properties covered by the will, together with other reliefs. During the pendency of the suit, the heirs of M. Picha 731 Pillai and the present defendants 15 and 16 (two of the three sons of Arunachala Irungol Pillai) assigned their interest in favour of the Devasthanam. The result of the suit, therefore, was that a decree in favour of the Devasthanam was passed in regard to the interest of the assignors, but it was dismissed as regards the interest of N.S. Muthammal (third defendant) and Pothiadia Irungol Pillai (second defendant) who had not entered into the compromise. It May be mentioned here that by exhibit D 22, a registered agreement dated May 20, 1928, the heirs had already agreed to give to Arunachala Irungol Pillai and N.S. Muthammal one eighth share each respectively in the properties of M. Picha Pillai. Thus, by this compromise the Devasthanam received 5/6th share of the properties of M. Picha Pillai, the remaining 1/6th, going to Pothiadia Irungol Pillai (1/24th) and N.S. Muthammal (1/8th). The Devasthanam filed an appeal in the High Court against the dismissal of the suit in respect of this 1/6th share and failed. An appeal was then taken to the Judicial Committee, which also failed. The judgment of the Privy Council is reported in Sri Subramaniaswami Temple vs Rama samia Pillai (1). Without waiting, however, for the result of the appeal in so far as the 1/6th share was concerned, the Devasthanam filed the present suit joining the two sets of claimants for declaration, ejectment and possession by partition of the properties to which it claimed title and for mesne profits. The properties were shown in various schedules annexed to the plaint; but it is unnecessary to refer to those schedule except were the needs of the judgment so require. One of the contentions raised by the plaintiff Devasthanam in this suit was that the first defendant,Ramasami Pillai, was not entitled to a share in the properties as an heir of M. Picha Pillai, being a lunatic when succession to these properties opened. Onbehalf of the first defendant, Ramasami Pillai, who contested the suit through his wife and guardian, R.Muthammal, it was contended that he was not a (1) 732 lunatic (buddhi swadeenam illadavar) but only a person of weak intellect (buddhi deechanya matra), and thus,he was not excluded from inheritance. This point was the main argument in this appeal, because the two Courts below reached opposite conclusions. According to the Subordinate Judge of Tuticorin, Ramasam Pillai 's plea was correct and proved. The High Court, on the other hand, held that the mental defect in Ramasami Pillai amounted to lunacy, and that it disentitled him to a share. Connected with this above matter is the second contention raised by Ramasami Pillai that he was entitled to a 1/9th share by virtue of an alleged agreement stated on affidavit in exhibit D 7 by Doraiappa Pillai on April 1, 1931. We shall give the details of this contention hereafter. The third contention raised in this appeal and also before the High Court was that the properties described in plaint sch. 4 A were the subject matter of a decree dated September 19, 1927, in favour of M. Picha Pillai in O.S.No. 35 of 1924 filed by him against his cousins. According to Ramasami Pillai (first defendant), the decree was not executed for a period of 12 years and the claim thereto was, therefore, barred under section 48 of the Code of Civil Procedure, and thus the Devasthanam was not entitled in this suit to claim possession of those properties. We shall begin with the question whether Ramasami Pillai was excluded from inheritance by reason of his mental condition on December 10, 1927. The argument of the appellant is two fold. The first is on the fact whether Ramasami Pillai was a lunatic within the Hindu law texts. The second is a question of law whether this lunacy was not required to be proved to have been congenital to disentitle Ramasami Pillai to succeed to his father. We shall deal with these two questions separately. In view of the fact that the two Courts below had reached opposite conclusions on the fact of lunacy, we have looked into the evidence in the case, and have heared arguments for the appellant. We are satisfied that the opinion of the High Court is correct in all the circumstances of this case. The argument on behalf 733 of the appellant was that in judging this issue we should see the evidence regarding the mental condition of Ramasami Pillai antecedent and subsequent to December 10, 1927, the conduct of his father, relatives and the other claimants of the property. It was contended that Ramasami Pillai was attending school. though nothing was shown to us from which we infer that he had profited by the attempts to educate him. The appellant, however, set great store by two documents, Exs. D 1 and D 2, executed by his father, Perumal Pillai, in January and April 1924. By the first, Perumal Pillai released his claim to certain properties in favour of his four sons, mentioning therein Ramasami Pillai without adverting to the fact that he was a lunatic and without mentioning a guardian. By the second, which was a will, Perumal Pillai gave equal shares in his properties to his sons including Ramasami Pillai, and once again without a mention of his mental condition. It was contended that Perumal Pillai was a Sub Registrar who would know the importance of such a fact and also the law that a lunatic was not entitled to succeed. The fact that the father in these two documents made no mention of the mental condition of his son does not bear upon the present case for two reasons. The first is that the case of Ramasami Pillai in this suit was that he was quite sane till 1924, and that his mental condition deteriorated only after that year. The second is that the omission by the father to mention this fact might be grounded on love and affection in which the claim of a mentally defective child might not have been viewed by him in the same manner as the law does. It was next contended that the other heirs recognised the right of Ramasami Pillai in April 1928 and agreed to give him a 1/9th share, as has been already stated above. That too would not prove that Ramaswami Pillai was entitled, in law, to a share. The compromise (which is also contested) might have been out of motives of charity but might not have been due to the fact that Ramasami Pillai 's right to a share was legally entertainable. The evidence, however, of Ramasami Pillai 's mental incapacity is really voluminous. Between 734 June 1924 and till his death, numerous suits were filed by different members of the family, including his wife, his cousins, uncle and aunt, in which Ramasami Pillai was always shown as a lunatic requiring the appointment of a next friend or a guardian ad litem. In one case only where Ramasami Pillai was the second defendant, an appearance was entered on his behalf by a vakil, who contended that Ramasami Pillai was sane and ought to be represented in person. The Court on that occasion appointed the Head Clerk of the Court as his guardian, and asked him to report about the condition of Ramasami Pillai. Ramasami Pillai was also asked to appear in Court in person, so that the Court might form its own opinion by questioning him. The Head Clerk visited Ramasami Pillai and submitted his report, exhibit P 8, in which lie described his observations. It appears that Ramasami Pillai did not even give his name when questioned, and appeared to be woody and silent. The relatives felt that he was hungry and fed him; but even after this, Ramasami Pillai did not give any answers to the questions put to him in the presence of his wife and others. The Head Clerk therefore reported that the appearance of Ramasami Pillai as a gloomy and sickly person with a vacant look and that his inability to answer even the simple question about his name, clearly showed that he was insane, This report was presented to the Court in the presence of the vakil, who had filed the vakalatnama, and on September 20,1924, an order (G. section No. 35 of 1924) was recorded by the Subordinate Judge (exhibit P 9). It was mentioned therein that the report was not objected to by the vakil for Ramasami Pillai, and that Ramasami Pillai was treated as a lunatic. Ramasami Pillai himself did not appear. It was contended that this enquiry as well as the fact that in numerous litigations Ramasami Pillai had a guardian or next friend to look after his interests did not prove that he was insane within the meaning of the Hindu law texts; it only proved that he was a person incapable of looking after his interests and for the purposes of the conduct of the suits a guardian or next friend, as the case might be, was necessary. In our opinion, the long and continued course of conduct 735 on the part of the various relatives clearly shows that Ramasami Pillai was, in fact, a lunatic, and the report of the Head Clerk given in a case long before the present one was ever contemplated, shows only too clearly that he was, for all intents and purposes, not only a person who was slightly mentally deranged but one who was regarded and found to be a lunatic. There being this evidence, the distinction now sought to bemade and which appealed to the Subordinate Judge of Tuticorin, is not borne out by the evidence in the case. Such a long and continuous course of conduct clearlyproves the contention that Ramasami Pillai was, infact, mad. Further, in exhibit D 22 dated May 20, 1928, Ramaswami Pillai was not considered as a claimant,and his claims could not have been overlooked by all his relatives simply because they were to get an additional share each in the property by reasonof his exclusion. Some one of his relatives would havefelt the need for asserting the claim on his behalf, ifhe himself did not do so. In view of the fact that thepreponderance of probabilities is in favour of thedecision of the High Court, we do not think that theappellant has succeeded in establishing the distinction,which was made in the case, between a lunatic and aperson of weak intellect on the evidence, such as it is. This brings us to the next contention which is oneof law. It may be pointed out here that before theSubordinate Judge, Ramasami Pillai did not raise thecontention that as a matter of law insanity must becongenital before a person would be excluded from inheritance. Learned counsel for the appellant explained that it was futile to raise this contention in view of the decision of the Madras High Court in Muthusami vs Meenammal (1), in which it was ruled that insanity need not be congenital to create the disability, and that insanity at the time succession opened was enough. The point, however, appears to have been raised in the High Court, but it was decided against Ramasami Pillai. The soundness of this view is questioned in this appeal. The argument shortly is this: The text of Manu (ix, 201) mentions many causes of exclusion from (1) 736 inheritance, some of which like blindness, muteness,idiocy and lameness, it is settled, must be congenital to exclude a person from inheritance. It is argued that the collection of the words in the text suggests that insanity like these other disabilities must also be congenital. No doubt, the word " Unmatha " comes between the words "Jatyandhabadhirau" and " Jadamukascha "; but the rulings have uniformly held that for the madness, the test, that it should be congenital, does not apply. The argument now raised has the support of the opinion expressed by Dr. Sarvadhikari in his Principles of Hindu Law Inheritance (2nd Edn.) p. 846,where the author expounded the text according to rules of grammar, though he was doubtful if according to medical science, madness as opposed to idiocy is ever congenital. The translations of the same text by Setlur, Gharpure and Dr. Ghose do not admit this interpretation. In Muthusami vs Meenammal (1), it was pointed out also that " Unmatha " was not qualified by the word " Jati ". Seshagiri Ayyar, J. observed that it according to Mimamsa rules of interpretation, an adjective qualifying one clause should not by implication qualify a different clause ". The counsel on that occasion agreed that this was the correct approach, but relied upon the opinion of Dr. Sarvadhikari which was not accepted. Learned counsel for the appellant also referred to the opinion of Colebrooke in his Digest, Vol. 11, p. 432. Colebrooke 's translation is based upon the commentary of Jagannatha Tarkapanchanana, and it is Jagannatha who made no difference between the various disabilities, and opined that madness like blindness or muteness must be also congenital. No doubt, much weight must be attached to the opinion of Jagannatha who was " one of the most learned pandits that Bengal had ever produced ". But this translation of Colebrooke has not been universally accepted, and is not borne out by the original texts and commentaries on the Mitakshara. Dr. Ghose in his Hindu Law, Vol. 1, p. 224 has expressed his doubts. The texts of Narada XIII, 21, 22, Yajnavalkya 11, 140 141 and others do not show that the defect of madness must also be (1) Mad. 464. 737 congenital. In Saraswati Vilasa 148, the emphasis of congenital disability is placed on blindness and deafness. Similarly, in Smriti Chandrika, Chap. V , 4, persons born blind and deaf are mentioned apart from madmen and idiots. That idiots must be congenitally so, is ruled by the Courts. The cases that have come before the Courts have Devasthanam all been uniform, except Murarji Gokuldas vs Parvatibai (1), where the observation is obiter and Sanku vs Puttamma (2), which was dissented from in later cases. On the other hand, Wooma Pershad Roy vs Grish Chunder Prochundo (3), Deo Kishen vs Budh Prakash (4) and other decisions have clearly held the contrary. In two cases before the Privy Council it was assumed that madness need not be congenital. It may also be noted that when the Legislature passed the Hindu Inheritance (Removal of Disabilities) Act XII of 1928 making the change to madness from birth as a ground of exclusion the law was not made retrospective, thus recognising the correctness of the judicial exposition of the original texts. In this view of the matter, we do not think that we should unsettle the law on the subject; nor has it been made to appear to us that any different view is open. We accordingly do not accept the contention. The result is that Ramasami Pillai was not entitled to succeed to M. Picha Pillai. We now come to the next contention. It is that even if this be the position, Ramasami Pillai was entitled to 1/9th share on the basis of an alleged arrangement evidenced by exhibit D 7 dated April 1, 1931. This document is an affidavit which was filed by Doriappa Pillai (Defendant 8) in a suit (O. section No. 25 of 1930) filed by him for possession after partition of his 1/8th share on the basis of exhibit D 22. In that suit, Ramasami Pillai was the second defendant. exhibit P 5 is the written statement filed on his behalf in which he repudiated that he was excluded from inheritance by reason of his insanity. This suit was withdrawn on April 2, 1931, with the leave of the Court, with liberty to bring a fresh suit (exhibit D 6). In the affidavit which was filed, it was stated as follows : (1) Bom. (2) Mad. (3) Cal. (4) All. 509 (F.B.). 94 738 5. Excepting Defendant 9, myself and almost all the Defendants agree to give. to Defendant 2 an equal share with others and thus come to some amicable arrangement between us. In view of the ninth Defendant 's contentions in the suit and in view of the fact that I have not prayed in this suit for a declaration of my title to the suit properties as against him, I am advised that I should withdraw the present suit for partition with liberty to institute a fresh suit as I may be advised. It is therefore just and necessary that I may be permitted to withdraw this suit with liberty to bring a fresh suit properly framed." The Subordinate Judge held on this and the evidence of D.W. 2 that this family arrangement was duly proved, and that Defendant 10 who was present in Court when the above statement was made, did not choose to deny it. The High Court rightly pointed out that the affidavit did not show the compromise as a completed fact, and also did not accept the word of D.W. 2. The claimants, who are stated to have given a share to Ramasami Pillai, have not been examined. The High Court also noticed that no application for transfer of the pattas was made. In view of these circumstances which are all correct, the appellant cannot be said to have successfully established the family arrangement, and we do not consider it necessary to examine the oral evidence in the case. This brings us to the last point that Ramasami Pillai was entitled to a share in the properties comprised in Sch. 4 A. M. Picha Pillai had filed O.S. No. 35 of 1924 against his cousins for possession of these properties. The suit was decreed on September 19, 1927. On October 30, 1927, P. Picha Pillai (Defendant 7) and Serindia Pillai sent a notice, exhibit P 3, informing M. Picha Pillai that he could take possession of the properties covered by, the decree. This notice was refused and returned to the senders. M. Picha Pillai died soon afterwards on December 10, 1927. It is contended that the properties thus remained in possession of the judgment debtors, and the decree not 739 having been executed, the present suit filed on October 18, 1939, is barred in so far as those properties are concerned, and the Devasthanam cannot get possession of them. Both the Courts below have concurred in holding that M. Picha Pillai must have got possession otherwise than by execution of the decree, because even D.W. 2 not very friendly to the Devasthanam admitted that M. Picha Pillai was at the time of his death in possession of all the suit properties. The two Courts below also adverted to the fact that for the years, Faslis 1338 and 1339 the 10th defendant paid the taxes, and this would not happen if the heirs of M. Picha, Pillai were not in enjoyment. The fact that the patta stood in the names of the original judgment debtors would not indicate anything, because mutations some. times lag behind change of possession. In view of the fact that the two Courts below have agreed on the finding and there is evidence to support it, we see no reason to interfere. The question of mesne profits was not pressed,and no other point having been argued, we hold that the appeal has no merits. It will, accordingly, be dismissed with costs. Appeal dismissed.

A Hindu was found to be a lunatic when succession opened. It was claimed that under the texts lunacy must be congenital to exclude from inheritance. Held, under the Hindu law lunacy as distinct from idiocy need not be congenital to exclude from inheritance, if it existed when succession opened. Muthusami vs Meenammal. , Wooma Parshad Roy vs Grish Chunker Prochundo, Cal. 639 and Deo Kishen vs Budh Prakash, All. 509 (F.B.)approved. Murarji Gokuldas vs Parvatibai, Bom. 177 and Sanku vs Puttamma, Mad. 289, disapproved.

Appeals Nos. 254 to 256 of 1963. V. A. section Muhammad, for the appellant (in C.A. No. 254/63) J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellants (in C.A. Nos. 255 and 256 of 1963). M. C. Setalvad, Atiqur Rehman, Shureshta Kumari and K. L. Hathi, for the respondent (in all the appeals). March 11, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J. Two questions of law have been raised, before us by Dr. Seyid Muhammad on behalf of K. Joseph Augusthi, the appellant in Civil Appeal No. 254/ 1963. Both of them are related to section 45G of the Banking Companies Act, 1949 (No. X of 1949) (hereinafter called the Act). The first question raised has reference to the validity of the said section and the second to its true scope and effect. Dr. Seyid Muhammad contends that the answers given by the Kerala High Court to both these questions are erroneous 139 According to him, section 45 G is unconstitutional inasmuch as it contravenes the fundamental right guaranteed to the citizens of this country by article 20(3) of the Constitution. He also argues that in making an order for the public examination of the appellant, the High Court has misconstrued the scope and effect of the relevant provisions of the said section. The appellant Joseph Augusthi was the Managing Director of the Palai Central Bank Limited from 26 1 1927 to 8 8 1960; K. George Thomas and George Joseph who are the appellants in the two other appeals Nos. 255 and 256 of 1963 respectively, were the Directors of the said Bank , the first of them was the Director from 14 1 1935 to 8 8 1960 and the latter from 26 1 1927 to 8 8 1960. An application for the winding up of the said Bank was made before the Kerala High Court by the Reserve Bank under section 38(3)(b)(iii) of the Act. The said provision justi fies the making of an application by the Reserve Bank in case in the opinion of the Reserve Bank, the continuance of the banking company in question is prejudicial to the interests of the depositors. On the 8th August, 1960, an order was passed on the said application appointing the Official Liquidator of the High Court the Provisional Liquidator of the Bank. The order of winding up then followed on the 5th December, 1960, and on the 8th December, 1960, an Official Liquidator was appointed under section 39 of the Act. After the Official Liquidator came on the scene, he made three reports to the High Court report No. 192 on the 17th August, 1961; report No. 242 on the 29th September, 1961 and report No. 350 on the 4th December 1961. All these reports were made under section 45G(1) of the Act. The appellants filed their objections on the 23rd November, 1961 to the first two reports. The matter was then ,considered by the learned single Judge of the Kerala High Court and after hearing the parties, he made an order directing the public examination of the three appellants under section 45G(2). This order was challenged by the appellants by preferring three appeals before a Division Bench of the High Court. The Division Bench agreed with the view taken by the learned single Judge and dismissed the three appeals. The appellants then applied for and obtained certificates from the High Court and it is with the said certificates that they have come to this Court by the present three appeals. The first point which has been argued before us by Dr. Seyid Muhammad is that section 45G is unconstitutional because it contravenes the fundamental rights guaranteed by article 20(3). In order to appreciate this argument, it is necessary to read section 45G(1) & (2). 140 "(1) Where an order has been made for the winding up of a banking company, the official liquidator shall submit a report whether in his opinion any loss has been caused to the banking company since its formation by any act or omission (whether or not a fraud has been committed by such act or omission) of any person in the promotion or formation of the banking company or of any director or auditor of the banking company. (2) If, on consideration of the report submitted under sub section (1), the High Court is of opinion that any person who has taken part in the promotion or formation of the banking company or has been a director or an auditor of the banking company should be publicly examined, it shall hold a public sitting on a date to be appointed for that purpose and direct that such person, director or auditor shall attend thereat and shall be publicly examined as to the promotion or formation or the conduct of the business of the banking company, or as to his conduct and dealings, in so far as they relate to the affairs of the banking company: Provided that no such person shall be publicly examined unless he has been given an opportunity to show cause why he should not be so examined. " The other sub sections of this section need not be cited, because it would be enough for our purpose to notice, in substance, what their effect is. Sub section (3) allows the Official Liquidator to take part in the examination and to employ such legal assistance as may be sanctioned by the High Court, if he is specially authorised by the High Court in that behalf. Sub section (4) permits the creditor or contributory to take part in the examination either personally or by any person entitled to appear in the High Court. Sub section (5) gives authority to the High Court to put questions to the person who is being examined; sub section (6) empowers oath to be administered to the said person and compels him to answer questions as may be put to him by the High Court, or as the High Court may allow to be put to him. Under sub section (7), such a person is entitled to appear by a lawyer and the lawyer so appointed shall be at liberty to put to him such questions as the High Court may deem fit just for the purpose of enabling him to explain or qualify any answer given by him; there is a proviso to this sub section which authorises the High Court to make an order of costs in its discretion in case the person under examination is exculpated from any charges made or suggested against him. Sub section (8) deals with the procedure to be followed in keeping a record of the examination. Subsection (9) provides that where after the examination of the 141 person,the High Court is satisfied that a person, who has been a Director of the banking company, is not fit to be a director of a company, or an auditor, or a partner who has been acting as such auditor, is not fit to be such an auditor or partner, the High Court may make an order that that person shall not, without the leave of the High Court, be a director of, or in any way, whether directly or indirectly, be concerned or take part in the management of, any company, or, as the case may be, act as an auditor of, or be a partner of a firm acting as auditors of, any company for such period not exceeding five years as may be specified in the order. Thus, it will be clear that the scheme of section 45G is first to decide whether, prima facie, there is a, case for the public examination of a person; then in deciding this question, give an opportunity to the person concerned; if it is decided to hold a public examination of the said person, proceed to hold that examination; if suggestions made against the person examined are found to be unwarranted, make an order of costs in his favour; and if the person concerned is found to have been responsible for acts or omissions which caused loss to the banking company, to make a penal order disqualifying such person from acting as a director or an auditor as indicated by subsection (9). It is in the light of this scheme that the argument about the contravention of article 20(3) falls to be examined. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. it may be conceded that when a person is compelled to submit to a public examination, that itself. prima facie, looks like pillorying him in the public gaze. It is also true that section 45G(6) compels the person to answer questions which the High Court may put to him, or which the High Court may allow to be put to him, and it is quite likely that in cases where public examination is ordered to be held, some suggestions and even some charges may be levelled against the person examined by reference to his acts or omissions in relation to the promotion, formation or conduct of the banking company of which he was a director or an auditor. Therefore, there is no difficulty in holding that a person examined publicly under section 45G may, in some cases, be compelled to be a witness against himself. Thus, one element of article 20(3) is satisfied , but the question still remains whether the other essential element is satisfied or not. Article 20(3) guarantees to every citizen the fundamental right not to be compelled to be a witness against himself, provided the person who is being compelled in that way, is accused of any offence. In other words, it is only when a person can be said to have been accused of any offence that the prohibition prescribed by article 20(3) comes into operation. If a person who is not accused of any offence, is compelled to give 142 evidence, and evidence taken from him under compulsion ultimately leads to an accusation against him, that would not be a case which would attract the provisions of article 20(3). The main object of article 20(3) is to give protection to an accused person not to be compelled to incriminate himself and that is in consonance with the basic principle of criminal law accepted in our country that an accused person is entitled to rely on the presumption of innocence in his favour and cannot be compelled to swear against himself. Therefore, unless it is shown that a person ordered to be publicly examined under section 45G is, before, or at the time when the order for examining him publicly is passed, an accused person, article 20(3) will not apply. What then is the position with regard to a person against whom an order for public examination is made by the High Court as done against the appellants? All that has happened at the relevant time is that the official liquidator has submitted reports indicating that in his 'opinion, loss has been caused to the banking company under liquidation by the acts or omissions of the appellants, and the High Court, on considering the reports and taking into account the explanation ,given by the appellant, has come to the conclusion that, prima facie, a case has been made out for their public examination. In such a case, how can it be said that the appellants have been accused of any offence? The whole object of the enquiry is to collect evidence and decide whether any acts or omissions caused loss to the banking company. It may be that as a result of the enquiry, the court may reach the conclusion that the alleged acts or omissions did not cause any loss; in such a case, nothing further has to be done. On the other hand, it is likely that the opinion formed by the liquidator may be vindicated and the court may come to the conclusion that some or all of the acts or omissions on which the liquidator 's opinion was based did cause loss to the banking company; and in that case, some action may conceivably be taken against the persons examined in addition to the action contemplated by section 45G(9). That, however, only means that after the examination is over and the material adduced before the court has been examined by the court, an occasion may or may not arise to take any action. In such a case, what may conceivably follow cannot be said to be existing before the order is passed under section 45G; an accusation may follow the enquiry, but an accusation was not in existence at the time when the public examination was ordered; and so, the appellants cannot contend that they were accused of any offence at the time when the order for their public examination was passed by the High Court. The accusation of any offence which is an essential condition for the application of article 20(3) is a condition precedent for the application of the principle prescribed by the said Article, and since this essential condition is lacking in all cases covered by sec 143 tion 45G, it is difficult to sustain the argument that the said section contravenes article 20(3). Therefore, we do not think Dr. Seyid Muhammad is right in contending that section 45G is invalid on the ground that it contravenes article 20(3) of the Constitution. It appears that in the case of Mallala Suryanarayana vs The Vijaya Commercial Bank Ltd.(1), the same view I has been expressed by this Court, though it may be added that this question does not appear to have been then elaborately argued. In this connection, we may refer to a decision of this Court in Raja Narayanlal Bansilal vs Maneck Phiroz Mistry and Anr. (2), where a somewhat similar provision contained in section 240 of the old Companies Act fell to be considered and it was held that it did not contravene article 20(3) of the Constitu tion. That takes us to the question of the construction of section 45G. Dr. Seyid Muhammad contends that section 45G requires that the acts or omissions alleged against a person should be acts which are prohibited by law, or omissions in relation to acts the performance of which is enjoined by law, and he suggested that if this interpretation is put on the words "acts or omissions", it would appear that the reports made by the liquidator in the present case have not made out any case for the public examination of the appellants. We are not impressed by this argument. It is significant that the acts or omissions to which section 45G(1) refers need not be fraudulent acts or omissions, because, in terms, the section provides that the act or omission would attract section 45G(1) if it has led to any loss to the banking company even though fraud may not have been committed by such act or omission. The context also shows that what the Court has to consider, is whether any act or omission on the part of the director or the auditor of the banking company has caused any loss to the company. Now, such an act or omission need not necessarily be criminal; it may even include acts or omissions which are commercially unsound or unwise. In this connection, it may be recalled that section 478 of the Companies Act which deals with a similar problem, requires that the report of the Official Liquidator should disclose his opinion that a, fraud has been committed. To the same effect is the provision contained in section 268 of the English Companies Act (11 & 12 Geo. 6, c 38). Therefore, it would, we think, be unreasonable to put a narrow and restricted construction on the words "acts or omissions" used by section 45G(1). Dr. Seyid Muhammad has then contended that in dealing with the reports made by the liquidator in the present case, the High Court has not given effect to the provision contained in (1) Civil Appeal No. 286 of 1959 decided on 26 10 1961. (2) ; 144 the proviso to section 45G(2). The said proviso requires that no person shall be publicly examined unless he has been given an opportunity to show cause why he should not be so examined, and Dr. Seyid Muhammad argues that unless the matter is fully examined and an opportunity is given to him to show that the facts alleged in the reports are untrue, the requirements of the proviso will not have been satisfied and his grievance is that no such opportunity was given to the appellants in the present case. There is no substance even in this argument. What the Court has to do in exercising its power under section 45G(2) is to consider the report made by the liquidator and decide whether it can reasonably entertain the opinion that any person who has taken part in the promotion or formation ,or conduct of the banking company should be publicly examined. In other words, it is a preliminary stage of the enquiry and the point which the Court has to consider is whether, prima facie, a case has been made out to hold a public examination of the person concerned. It cannot be the object of section 45G(2) read with the proviso that the Court should allow the appellants to lead evidence rebutting the allegations made by the liquidator in his reports, for if such a course was adopted, it would itself develop into a full fledged enquiry and the very object of a limited enquiry at the initial stage would be defeated. What the Court can and should do in such cases is to read the report submitted by the Official Liquidator, consider whether the opinion expressed in the report appears to be, prima facie, reasonable; hear the explanation of the person concerned; and find out prima facie whether the explanation tendered by the person is sufficient to reject the liquidator 's request for such person 's public examination and whether, on the whole, it is just and beneficial to the interest of the banking company that public examination should be held. The subjectmatter of this preliminary investigation is not the whole of the enquiry on the merits; it is an enquiry as to whether the director or the auditor should be publicly examined. Therefore, we do not think Dr. Seyid Muhammad is justified in contending that the High Court has ignored the safeguard afforded to the appellants by the proviso section 45G(2). The question about the construction of section 45G(1) & (2) does not present any serious difficulty. What must be disclosed by the report of the Official Liquidator is the act or omission of the person there specified which has led to loss to the banking company since its formation. The acts or omissions to which section 45G(1) refers, when considered in the light of section 45G (2), are acts or omissions "as to the promotion, or formation, or the conduct of the business of the banking company, or ,is to his conduct and dealings in so far as they relate to the affairs of the banking company", so that after the report is made, the court takes a broad and overall view of the state of 145 affairs disclosed by the report and considers prima facie whether a case has been made out for the public examination of the director or the auditor. We are satisfied that the High Court has dealt with the matter precisely in this way, and no Grievance can be made against its decision on the ground that the provisions of the proviso to section 45G(2) have been ignored. In support of his argument that the High Court has mis construed the effect of the provisions of section 45G(1), Dr. Seyid Muhammad referred to two decisions which may be mentioned at this stage. The first of these is the decision of the House of Lords in Ex parte George Stapylton Barnes(1). In that case, the question which fell to be considered was the scope and effect of section 8(3) of the Companies (Winding up) Act, 1890; Lord Halsbury observed that he entertained not the smallest doubt that the meaning of this legislation is that, in order to give the Court jurisdiction to make an order for public examination, there must be a finding of fraud, and a finding of fraud against an individual who is thereby made subject to being summoned before the Court, and is compelled to answer, whether the answer incriminates him or not, but, being exculpated, receives his costs. He further observed: "I confess I am unable, looking at the whole of the legislation on the subject, to entertain the least doubt that that was what the Legislature intended, and I am a little surprised, I confess, that there should have been any doubt that fraud must be found." In our opinion, this passage is hardly relevant for our purpose, because as we have already indicated, section 45G(1) expressly provides that the act or omission complained of need not necessarily be fraudulent, and so, there can be no question, under section 45G(1), of coming to a conclusion that fraud has been committed before directing public examination of a person. The other decision on which Dr. Seyid Muhammad has relied is the judgment of the Bombay High Court in Sir Fazal Ibrahim Rahimtoola vs Appabhai C. Desai(2). In that case, dealing with the provisions contained in section 196 of the old Companies Act, Chagla C.J. disapproved of the practice of ordering ex parte public examination of persons. In that connection, he quoted with approval the warning sounded by Sir Lawrence Jenkins in the Ahmedabad Advance Spinning and Weaving Company vs Lakshmishanker(3), that the practice of passing ex parte orders involving the person affected in serious liability is much to be deprecated. In that case, the Bombay High Court was called upon to consider whether the allegations made against the director were vague and indefinite. As we will. (1) at P. 152. (2)A.I.R. (3)I.L.R. 146 presently point out, that difficulty does not arise in the present appeals. The allegations made by the liquidator in his reports against the appellants are clear, precise and definite. Let us now refer to the reports submitted by the liquidator in the present case. In his first report, the liquidator has stated that in carrying out the affairs of the bank, the Directors, with the help of officers appointed by them out of their own relatives, have not properly conducted the affairs of the bank. He has also stated that in his opinion, loss had been caused to the bank since its formation by the acts and omissions of the Directors and of the auditor of the bank. The report then proceeds to specify the extent of the loss and the causes for the said loss. It appears from the report that loans were advanced by the bank without regard to the question of any adequate security. In many cases, loans were advanced without any security at all and the inevitable consequence has been that a large number of debts have become barred by time long before the winding up proceedings were started. The bank appears to have paid dividends without earning profits. Similarly, though it did not earn any profits between 1936 to 1958, it submitted reports showing substantial amounts as net income and so, it has paid income tax on the said amounts. A large amount of advances appears to be irrecoverable. At the end of his report, the liquidator has mentioned 10 persons, including the three appellants before us, whose acts and omissions, in his opinion, contributed to loss to the banking company. Two further reports were made by the liquidator and they support the opinion expressed by him in his first report. The third of these reports was filed after this matter was heard by the learned Single Judge but the first two reports themselves fully justify the order made by him, and so, the third report can well be left out of consideration. When we turn to the objections filed by the appellants, it is clear that some of the facts are not seriously disputed. Take, for instance, the allegation that dividends were declared without earning profits. The appellant Joseph Augusthi contended before the High Court that the bank used to treat interests accrued on advances, though not received, as income, and so, income tax and super tax were paid on such income and dividends were also paid on the same basis. He suggested that the Reserve Bank had noticed these facts and had waived its objection. In other words, he relied on a practice which is obviously unsound in a commercial sense and pleaded that at this stage the Reserve Bank cannot challenge the correctness or propriety of the said practice. This practice has been described by the appellant as mercantile system of accounting. It would thus be seen that some of the facts alleged by the liquidator in his report are not disputed; the effect of those facts was a matter of argument between the parties before the High Court. In such 147 a case, we do not see how the appellants can successfully challenge the correctness of the view taken by the High Court that a case had been made out for the public examination of the appellants. That is why we do not think there is any substance in the argument urged before us by Dr. Seyid Muhammad that on the facts, an opportunity had not been given to the appellants to show that their public examination should, not be ordered. We are satisfied that in dealing with the facts of this case, the Courts below have taken into account the reports made by the liquidator and after considering the objections raised by the appellants, they have come to the right conclusion that the appellants should face a public examination. The result is the appeals fail and are dismissed with costs. One set of hearing fees. Appeals dismissed.

The assessee company dealt in shares and also held invest ments of shares on January 1, 1948. The assessee held 1,10,747, shares of Rohtas Industries at a book value of Rs. 15,57,902/ . Of these shares 31,909 were bonus shares issued by Rohtas Industries in 1945 at the face value of Rs. lo/, each and the assessee had debited the investment account in respect of the bonus shares by Rs. 3,19,090 with a corresponding entry in the capital reserve account on its credit side for the same amount. The assessee acquired these bonus shares at a cost of Rs. 5,84,283 in 1944. On January 29, 1948, the assessee sold the entire lot of 1,10,747 shares for Rs. 15,50,458. The assessee deducted the sale price from the book value of Rs. 15,57,902 and claimed a loss of Rs. 7,444 on the sale of shares. The appellate Tribunal valued the bonus shares at nil and held that the assessee had made a profit of Rs. 3,11,646/ . On a reference the High Court held that the Tribunal was wrong in holding that the assessee had made a profit of Rs. 3,11,646/ . Held (per Hidayatullah and Shah, JJ.): (i) The Income tax Act defines "dividend" and also extends it in some directions but not so as to make the issue of bonus shares a release of reserves as profits so that they could be included in the term. The face value of the shares cannot therefore be taken to be dividend by reason of anything in the definition. The shares certificate which is issued as bonus entitles the holder to a share in the assets of the company and to participate in future profits. The bonus share when sold may fetch more or may fetch less than the face value, and this shows that the certificate is not a voucher to receive the amount mentioned on its face. The market price is affected by many imponderables, one such being the yield or the expected yield. The detriment to the share holder, if any, must therefore be calculated on some principle, but the method of computing the cost of bonus shares at their face value does not accord either with fact or business accountancy. Swan Brewery Co. Ltd. vs Rex , disapproved. Commissioner of Inland Revenue vs John Blott, 8 Tax Cases 101, approved. Bouch V. Sproule, , referred to. Commissioner of Income tax, Bengal vs Mercantile Bank of India Ltd., and Nicholas vs Commissioner of Taxes of the State of Victoria, , referred to. (ii) The bonus shares cannot be said to have cost nothing to the share holder because on the issue of its bonus shares, there is an instant loss to him in the value of his original holding. The earning capacity of the capital employed remains the same, even after the reserve is converted into bonus shares. By the issue of the bonus shares there is a corresponding fall in the dividends 211 actual or expected and the market price moves accordingly. The method of calculation which places the value of bonus shares, at nil cannot be correct. (iii) The bonus shares can be valued by spreading the cost of the old shares over the old shares, and the new issue taken together, if the shares rank pari passu. When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue taking the middle price not that represented by any unusual fluctuations. On the facts of this case it was held that since the bonus shares in this case rank pari passu with the old shares there is no difficulty in spreading the original cost over the old and the new shares. Commissioner of Income tax vs Maneklal Chunilal and Sons, Income tax Reference No. 16/1948, dt. 23 3 1949, disapproved. Emerald and Co. Ltd. vs Commissioner of Income tax, Bombay City, , distinguished. Eisner vs Macomber, L.Ed. 521, referred to. Per Sarkar, J. (dissenting): (i) The view taken by the majo rity of Judges in Blott 's case is a correct one. In that case the learned Judges held that when the articles of a company authorise the issue of bonus shares and the transfer of a sufficient amount out of the accumulated profits in its hands representing their face value to the share capital account, what happens when the articles are acted upon is a capitalisation of the profits and the bonus shares issued are not in the hands of the share holder income liable to tax. Following the majority opinion in Blott 's case it was held that the High Court was in error in the view it took in the present case. There is no foundation for proceeding on the basis as if the bonus shares had been acquired by the assessee at their face value. Its profits cannot be computed on that basis. Commissioner of Inland Revenue vs Blott (1921)2 A.C. 171, relied on. Swan Brewery Co. Ltd. vs King , disapproved. Osborne (H.M. Inspector of Taxes) vs Steel Barrel Co. Ltd., , inapplicable. Commissioner of Inland Revenue vs Fisher 's Executors, ; and Commissioner of Income tax, Bengal vs Mer cantile Bank of India Ltd., , referred to. Commissioner of Income tax vs Maneklal Chunilal and Sons Ltd., I.T. Ref. No. 16 of 1948 and Emerald and Co. Ltd. vs Commissioner of 1ncome tax, Bombay City, , referred to. (ii) Bai Shirinbai Kooka 's case is the authority for the proposition that where it cannot be shown what was paid for the acquisition of a trading asset by a trader, it has for tax purposes to be deemed to have been acquired at the market value of the date when it was acquired. On the basis of this authority the Bonus shares must in the present case be deemed to have been acquired at the market value of the date of their issue. (iii) On the basis of the same authority, it would not be correct to say that the bonus shares had been acquired for nothing. 212 The view taken by the Appellate Commissioner and the Tribunal cannot be supported. Commissioner of Income tax vs Bai Shirinbai K. Kooka, [1962] Supp. 3 S.C.R. 391, relied on.

Civil Appeal No. 2613 of 1983. From the Judgment and order dated 19 11 82 of Allahabad High Court in Civil Misc. Writ No. 8287 of 1982. R.K Garg, S.N. Singh and D.K. Garg, for the appellant. P.R. Mridul, Miss A. Subhashini, R.N. Poddar, C.V. Subba Rao and A.K. Ganguli for the respondents. The judgment of the Court was delivered by CHANDRACHUD, C.J. The appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. On May 22, 1982 the Senior Commercial officer wrote a letter to him, calling upon him to offer his explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation to the charges by his reply dated June 9, 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant, saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by the letter of May 22, 1982. By this letter, the appellant was also called upon to submit his explanation within three days as to why deterrent disciplinary action should not be taken against him. The appellant submitted his further explanation on June 14, 1982, but on the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service. The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds. The Union of India, the Senior Commercial officer and the Deputy Chief Commercial Superintendent were impleaded to that petition 305 as Respondents 1 to 3. That writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave. The order dismissing the appellant from service was passed by Respondent 3 under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 read with Proviso (b) to Article 311(2) of the Constitution. Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into the conduct of the appellant in the manner provided by the relevant rules, and thereafter, he proceeded to pass the order of dismissal without holding any inquiry. Quite some time was taken by the appellant 's counsel in arguing upon the true meaning and intendment of the Discipline and Appeal Rules, 1968 and in urging that the appellant should have been afforded an opportunity of being heard on the question as to whether, it was or was not reasonably practicable to hold an inquiry into the charges levelled against him. It was also urged by the learned counsel that the fact that it was not reasonably practicable to hold a full fledged inquiry as contemplated by the Rules, did not justify the non holding of any inquiry at all. We do not propose to enter into the merits of these contentions since, the appellant is entitled to succeed on another ground. The letter dated May 22, 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges, out of which Charges Nos. 2 to 7 and 11 refer to the appellant 's misconduct in relation to Respondent 3. For example, the second charge alleges that the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language. Charge No. 3 says that the appellant was in the habit of forcing himself on Respondent 3 two or three times every day with petty complaints. Charge No. 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him, using foul words. Charges 5, 6 and 7 contain similar allegations. The allegation contained in Charge No. 11 is to the effect that behaving as a leader of goondas, the appellant hired the services of other goondas and created security problems for Respondent 3 and the members of his family. It is obvious that if an inquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant 's misconduct. It is surprising in this context that the 306 explanation dated June 9, 1982 which was furnished by the appellant to the letter of accusation dated May 22, 1982 was considered on its merits by Respondent 3 himself. Thereby, the accuser became the judge. The letter written to the appellant by Respondent 3 on June 10, 1982 says: "I have carefully gone through your defence explanation dated 9.6.82. to the charges given in this office letter of even No. dated 22.5.82 and the same is not convincing at all. Before taking any action under D. & A.R., I would like to offer you another chance for giving your explanation to the specific charges conveyed to you vide this office letter dated 22.5.82. Please submit your defence explanation within three days as to why a deterrent disciplinary action should not be taken against you". The appellant submitted his further explanation, which also was considered by Respondent 3 himself. The order of dismissal dated June 15, 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant 's conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had, therefore, to be dismissed. Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar. In doing this, Respondent 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between th 307 appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself. In The State of Uttar Pradesh vs Mohammad Nooh, 1 S.R. Das, C.J., observed, while speaking for the majority, that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined that the judge can hold the scales of justice even. We may borrow the language of Das, C.J., and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of Respondent 3. Mr. Mridul, appearing on behalf of the respondent, contended ' that though this may be the true legal position, the appellant does not deserve the assistance of the Court since, he was habitually guilty of acts subversive of discipline. This argument does not impress us. In the first place, to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved. Secondly, the illegality from which the order of dismissal passed by Respondent 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it. In the result, we allow the appeal and set aside the judgment of the High Court. The order dated June 15, 1982 whereby the appellant was dismissed from service is set aside. In order, however, to avoid needless complications in working out the mutual rights and obligations of the parties, we direct that the appellant, who is due to retire within about six months, shall be treated as having retired from service with effect from April 1, 1984. He shall be paid the arrears of his salary due until March 31, 1984 on the basis of the salary last drawn by him on June 15, 1982, without taking into account the increments which he might have earned subsequent to that date. The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him. The appellant may 308 not and shall not rejoin his duties. He will be treated as on leave between now and March 31, 1984. The arrears of salary until March 31, 1984 shall be paid to the appellant on the basis indicated above, on or before that date and, in any event, not later than May 1, 1984. The provident fund and gratuity shall be paid to him within a period of two months from today. Mr. Garg made a statement before us on behalf of his client, the appellant, that the appellant is neither in occupation of any official residential accommodation, nor is he in possession of the garage which is referred to in Charge No. 6 in the letter of May 22, 1982. The appeal will stand disposed of in terms of the above order. Respondent 1, the Union of India, shall pay to the appellant a sum of Rs. 1,000/ (Rupees one thousand) as his costs. S.R. Appeal allowed.

The petitioners in their writ petitions to this Court assailed the detention of a member of the Sikh Community under the . ^ HELD: 1. These are not ordinary criminal cases involving a few individuals coming from a small locality. These are extraordinary cases involving serious questions of great public importance touching the security of the nation as well as personal liberty of a sizeable section of the community. These cases have to be dealt with differently from the usual cases which come up before this Court.[927 C D] 2. In handling these cases the highest judicial talent and statesmanship are needed and hence these cases cannot just be rejected reserving liberty to the applicants to approach a Judicial Magistrate, a Sessions Judge or even the High Court. Every step taken in these cases should serve as a healing touch bringing solace to all concerned and lessening by some degree the pain and suffering through which the country and its peace loving people have passed and are passing. These proceedings should have the effect of assuaging the outraged feelings of many who till now may not be aware of what has actually happened. [927 F G] 3. The questions involved are too large and complex for the shoulders of a Single Judge to bear. These and other cases of like nature should be heard by at least seven learned Judges of this Court whose unquestioned judicial authority, erudition and acumen would be of great assistance in the restoration of peace in one of the States known for valour, devotion, spirit of sacrifice and sense of duty towards the country of the people residing in it. [927 H; 928 A] 4. Even if allegations of serious offences against the State may be forthcoming against the arrested persons, the Court may still consider whether it is not possible enlarge at least some of them, who may be in a repentant mood, on bail to facilitate early restoration of normalcy in the State. There may be many other things which may be done and they are within the domain of the Judges, who may hear these cases. If this Court in the end can succeed in establishing peace and harmony in the country, it would be its finest hour. [928G H; 929 A] (Cases referred to Larger Bench.)

l Appeals Nos. 1868 to 1882 of 1969. Appeals from the judgment and order dated July 9, 10, 1968 of the Mysore High Court in Writ Petitions Nos. 1776, 2108, 2109, 2111, 2112, 2272, 2273, 2275, 2385, 2386, 2390, 2395 and 2396 of 1966 and 728 and 990 of 1967. Jagadish Swarup, Solicitor General, section section Javali and section P. Nayar, for the appellant (in all the appeals). M.Mama Jois and R. B. Datar, for respondent No. 1 (in C.As. 1868 to 1871 and 1874 to 1881 of 1969). 832 The Judgment of the Court was delivered by Mitter, J. The State of Mysore has come up in appeal from a common judgment of the High Court at Bangalore disposing of a number of writ petitions and holding void the compulsory transfer of the respondents herein to the Agricultural University under the provisions of the University of Agricultural Sciences Act, 1963. As the same question arise Civil all these appeals it will be sufficient to state the facts in Appeal No. 1$68 of 1969 in which one H. Papanna Gowda is the respondent. The said respondent was appointed on January 7, 1959 as an agricul tural demonstrator in the Mysore Civil Service. His appointment was as a local candidate ' which under the Mysore Civil Service Rules means a person appointed not in accordance with the rules of recruitment. His services were however regularised when he was selected by the Public Service Commission for appointment to that post on August 27, 1959. By an order dated April 4, 1964 he was transferred and posted as a Chemical Assistant of the Sugarcane Research Station Mandya, in the department of agriculture. When he was thus employed, a law made by the State Legislature called the University of Agricultural Sciences Act. , 1963 (hereinafter referred to as the Act ') came into force on April 24, 1964. Before the High Court the respondents to these appeals challenged the vires of section 7(5) of the Act and a notification issued thereunder. The preamble to the Act shows that it was an Act to estab lish and incorporate a University for the development of agriculture, animal husbandry and allied sciences in the State of Mysore. Under section 3(2) the University was to be a body corporate having perpetual succession and a common seal. The powers given under section 6 of the Act enabled it inter alia to create administrative, ministerial and other posts and to appoint persons to such posts. Under section 7(1) subject to the conditions therein mentioned several agricultural and veterinary colleges were disaffiliated from the Karnatak University or the University of Mysore and were to be maintained by the new University as constituent colleges. The control and management of these colleges were to stand transferred to the Agricultural University and all its properties and assets and liabilities and obligations of the State Government in relation thereto were to stand transferred to, vest in, or devolve upon the said University. Under sub section (4) of section 7 the control and management of such research and educational institutions of the Department of Agriculture, the Department of Animal Husbandry and the Department of Fisheries of the State Government were, as and from such date as the State Government 833 might by order specify, to be transferred to the University and thereupon all the properties and assets and liabilities and obligations of the State Government in relation to such institutions were to stand transferred to, vest in, or devolve upon the University. omitting the proviso which is not relevant for our purpose, sub section (5) provided "Every person employed in any of the colleges specified in sub section (1) or in any of the institutions referred to in sub section (4) immediate before the appointed day or the date specified in the order under subsection (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board :" The Board has been defined in section 2 clause (3) as the Board of Regents of the University. By notification dated September 29, 1965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965. The Agricultural Research Institute Mandya where the respondent was working was one such institution. Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition, seeking a declaration that sub sections (4) and (5) of section 7 of the Act Were invalid And for a further declaration that he continued to be a civil servant under the State Government. To put in brief the argument on this head was that he had been removed from a civil post under the State in contravention of the provisions of article 311. A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as persons who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the State thereby infringing articles 14 and 16 of the Constitution. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute as indeed the learned Solicitor General was constrained to admit that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were 11 L694Sup. CI/71 834 or were not to be prejudicially affected if he was to become an employee of the University is not in point. However the learned Solicitor General drew our attention to paragraph 17 of the counter affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for the following (1)Every employee of the, Government on his transfer to the University shall enjoy the same pay scale. (2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government. (3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and (4)Every employees of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment. We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant. The learned Solicitor General sought to rely on a judgment of the Punjab High Court in Amulya Kumar Talukdar vs Union of India and others(1) a case which was considered by the High Court of Mysore, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by the Punjab High Court. The High Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the , the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. Tin the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology Kharagpur as a peon. As a result of the Act of 1956 the Institution declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute be fore were to hold office or service thereafter upon the (1) I.L.R. 13 Punj. 781. 835 same terms and conditions and with the same rights and Privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of. the Act as if the Act had not been passed. In the case before us the Act provides by sub section (5) of section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether, the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision can not therefore apply to the case as presented before us. In the result the appeals fail and are dismissed with costs. There will be one set of hearing fee. V.P.S. Appeals dismissed.

The appellant State issued an Order according to which reservation of posts for Scheduled castes. tribes and backward classes was made applicable not only to initial recruitment but also to promotions. Respondents 1 and 3 were in the 'State Government service and the former was the senior. But since the latter belonged to a scheduled caste he was promoted over. the first respondent as per the Order. The High Court quashed the promotion on the basis that such reservation might lead to various anomalies. In appeal to this Court, HELD : Article 16(1) provides for equality of opportunity to all citizens in relation to appointment to any office in the service of the State subject to the exception in article 16(4) that the State may make reservations in favour of backward classes. The reservation contemplated by article 16(4) can be made not merely to initial recruitment but also to Posts to which promotions are to be made. Every such reservation under article 16(4) does introduce an element of discrimination and promotion of junior officers over seniors; but the Constitution makers thought fit, in the interests of society as a whole, that backward classes should be afforded some protection. If, however, the reservation under article 16(4) makes the rule in article 16(1) meaningless the decision of the State would be open to judicial review; but the burden of establishing that a particular reservation is offensive to article 16(1) is on the person who takes the plea. [271 C, E, 272 D G, 273 D F] In the present case, there was no material from which it could be concluded that the impugned Order violated article 16(1). The reservation could not be struck down on hypothetical grounds or on imaginary possibilities. [273 H] General Manager, Southern Railway vs Rangachari, ; and A. Peeriakarupan etc. vs State of Tamil Nadu, [1971] 2 S.C.R. 430, followed.

Civil Appeal No. 132 of 1951. Appeal by Special Leave from the Judgment and Decree dated 17th May, 1950, of the High Court of Judicature at Calcutta (Harries C.J. and Sinha J.) in Appeal No. 41 of 1950 arising out of the Order of 766 Banerjee J. dated 19th December, 1949, in Suit No. 132 of 1948. M.C. Setalvad, Attorney General for India (B. Sen, with him) for the appellant. Naziruddin Ahmad (Nuruddin Ahmad, with him) or respond ent No. 1. S.N. Mukherjee for respondent No.2 1952. May 21. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. This Court granted special leave to appeal in this case on the Government agreeing to pay the costs of the respondents in respect of the appeal in any event. The decree holder was a lady named Hira Devi. The judg ment debtor was one Ram Grahit Singh, who retired on 31st January, "1 '947, as a Head Clerk in the Dead Letter Office, Calcutta. A money decree was obtained against him on 30th July, 1948. On 1st February, 1949, a receiver was appointed for collecting the moneys standing to the credit of the judgment debtor in a Provident Fund with the Postal authori ties. The Union of India intervened with an application dated 20th September, 1949, for setting aside the order appointing the receiver. Mr. Justice Banerjee dismissed the application of the Union of India, holding that a receiver could be appointed for collecting the Fund. On appeal, Trevor Harries C.J. and Sinha J. upheld his view. From the facts stated in the petition filed by the Union of India before the High Court, it appears that a sum of Rs. 1,394 13 1 represents arrears of pay and allowances .due to the judgment debtor and a sum Of Rs. 1,563, is the compulso ry deposit in his Provident Fund account. Different consid erations will apply to the two sums, though in the lower court the parties seem to have proceeded on the footing that the entire sum was a "compulsory deposit" within the meaning of the provident Funds Act, 1925. The main question to be decided. is whether a receiver can be appointed in execution in respect of provident Fund money due to the judgment debtor. 767 Compulsory deposit and other sums in or derived from any fund to which the Provident Funds Act XIX of 1925 applies are exempt from attachment and sale under section 60 (k), Civil Procedure Code. "Compulsory deposit" is thus defined in section 2 (a) of the Provident Funds Act XIX of 1925: Compulsory deposit means a subscription to, or deposit in a Provident Fund which under the rules of the Fund, is not, until the happening of some specified contingency repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance (or the Payment Of subscriptions or premia in respect of a family pension fund), and includes any contribution and any interest or increment which has accrued under the rules of the fund on any such subscription, deposit, contribution, and also any such subscription, deposit, contribution, interest or increment remaining to the credit of the sub scriber or depositor after the happening of any such contin gency. " Such a deposit cannot be assigned or charged and is not liable to any attachment. Section 3 (1)of the said Act provides : 3. (1)" A compulsory deposit in any Government or Rail way Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the shall be entitled to, or have any claim on any such compulsory deposit. " It is obvious that the prohibition against the assign ment or the attachment of such compulsory deposits is based on grounds of public policy. Where the interdiction is absolute, to allow a judgment creditor to get at the fund indirectly by means of the appointment of a receiver would be to circumvent the statute. That such a frustration of the very object of 768 the legislation should not be permitted was laid down by the Court of Appeal as early as 1886 in the case of Lucas vs Harris (1), where the question arose with reference to a pension payable to two officers of Her Majesty 's Indian Army. Section 141 of the Army Act, 1881 provided: "Every assignment of, and every charge on, and every agreement to assign or charge any . . pension pay able to any officer or soldier of Her Majesty 's forces, or any pension payable to any such officer . . or to any person in respect of any military service, shall except so far as the same is made in pursuance of a royal warrant for the benefit of the family of the person entitled thereto, or as may be authorised by any Act lot the time being in force, be void. In that case, the appointment of a receiver to collect the pension was in question. Lindley, L.J., observed: In considering whether a receiver of a retired officer 's pension ought to be appointed, not only the language but the object of section 141 of the Army Act. 1881 must be looked to; and the object of the section would, in my opinion, be defeated, and not advanced, if a receiver were appointed." Lord Justice Lopes reiterated the same thing in these words : "It is beyond dispute that the object of the legislature was to secure for officers who had served their country, a provision which would keep them from want and would enable them to retain a respectable social position. i do not see how this object could be effected unless those pensions were made absolutely inalienable. preventing not only the person himself assigning his interest in the pension. but also preventing the pension being seized or attached under a garnishee order, or by an execution or other process of law. Unless protection is given to this extent the object which the legislature had in view is frustrated, and a strange anomaly would exist. A person with a (1) 18 (Q.B D. 127. 769 pension would not be able to utilise his pension to pay a debt beforehand, but immediately his creditor had obtained judgment might be deprived of his pension by attachment, equitable execution, or some other legal process. It is impossible to suppose that the legislature could have in tended such an anomaly. " Section 51 of the Civil Procedure Code no doubt recognises five modes of execution of a decree and one of them is the appointment of a receiver. Instead of executing the decree by attachment and sale, the Court may appoint a receiver but this can only be in a case where a receiver can be appointed. The Provident Fund money is exempt from at tachment and is inalienable. Normally, no execution can lie against such a sum. The learned Judges in the Court below rested their view on the authority of the decision of the Privy Council in Rajindra Narain Singh vs Sundara Bibi(1). This decision has caused all the difficulty and has created a current of thought that even though the property may not itself be liable to attachment, a receiver can be appointed to take possession of the same and to apply the income or proceeds in a particular manner including the payment of the debts of the judgment debtor. It is necessary. therefore, to examine the facts of the case carefully and find out whether the proposition sought to be deduced from it can be justified as a principle of general application apart from the particular circumstances. The original decision of the Allahabad High Court from which the appeal was taken before the Judicial Committee is reported in Sundar Bibi vs Raj Indranarain Singh(2). In a suit between two brothers, there was a com promise to the effect that the Judgment debtor shall possess and enjoy the immoveable properties mentioned in the list and estimated to yield a net profit of Rs. 8,000 a year without power of transfer during the lifetime of his broth er, Lal Bahadur Singh, he undertaking to pay certain public exactions and other dues (1)1925) 52 I.A. 262. (2) (1921)43 All. 617 770 to his brother, Lal Bahadur Singh, amounting in all to Rs. 7,870 11 6, in four equal instalments per annum, each to be paid a month before the Government revenue falls due. The arrangement was stated to be "in lieu of his mainte nance". When the judgment debtor 's interest in the proper ties was sought to be attached and sold, he raised the objection that they were exempt from attachment and sale by reason of clause (n) of Section 60 of the Code which speaks of "a right to future maintenance". The High Court held that the words employed in sub clause (n) contemplated R bare right of maintenance and nothing more a right enforce able by law and payable in the future and that inasmuch as in the case before them the properties had been assigned to the judgment debtor in lieu of his maintenance, it was not such a right, which alone was exempt from attachment and sate. They thought that it was a fit case for the appoint ment of a receiver and remitted the execution petition to the subordinate judge for the appointment of a receiver after determining the allowance payable to the judgment debtor for his maintenance. With this conclusion of the High Court the Judicial Committee concurred. But they also expressed the view that they did not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment debtor. Taking the prayer of the judgment creditor to be that the right of maintenance be proceeded against, their Lordships observed that the right was in point of law not attachable and not saleable. If it was an assignment of properties for maintenance, the amount of which was not fixed, it was open to the judgment creditor to get a receiver appointed subject to the condition that whatever may remain after making provision for the maintenance of the judgment debtor should be made available for the satisfaction of the decree debt. The right to main tenance could not be attached or sold. In so far as the decree holder sought to attach this right and deprive the judgment debtor of, his maintenance, he was not entitled to do 771 so, but where his application for the appointment of a receiver was more comprehensive and sought to get at any remaining income after satisfying the maintenance claim, the appointment of a receiver for the purpose was justified. The decision of the Privy Council does not appear to lay down anything beyond this. In our opinion, it is not an authority for the general proposition that even though there is a statutory prohibition against attachment and alienation of a particular species of property, it can be reached by another mode of execution, viz., the appointment of a re ceiver. On the other hand, it was pointed out in the case of Nawab Bahadur of Murshidabad vs Karnani Industrial Bank Limited(1) that as the Nawab had a disposing power over the rents and profits assigned to him for the maintenance of his title and dignity without any power of alienation of the properties, no question of public policy arose and that a receiver of the rents and profits was rightly appointed. This line of reasoning indicates clearly that in cases where there is no disposing power and the statute imposes an absolute bar on alienation or attachment on grounds of public policy, execution should not be levied. Understood as mentioned above, Rajindra Narain Singh 's case creates no difficulty. We shall now refer to the decisions that followed or distinguished the same. In The Secretary of State for India in Council vs Bai Somi and Another(2), the maintenance of Rs. 96 per annum was made under a compromise decree a charge on the house which was to belong to the defendant. 'the court fee due to Government was sought to be recovered by attachment of the house. The right to attach was negatived; the house could not be at tached as it belonged to the defendant; and the plaintiff 's right to maintenance could not be attached under section 60, clause (1). In dealing with a prayer made by the Govern ment for the first time in the High Court for an order appointing a receiver of the plaintiff 's maintenance, Beaumont C.J. and (1) (1931) 58 I.A. 215. (2) 100 772 another learned Judge held that even this could not be done. The Chief Justice said , 'If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost." They steered clear of Rajindra Narain Singh 's case by stating that there was in the judgment of the Board no clear expression of opinion and there was doubt whether the allowance then in question was maintenance or not. The Madras High Court in The Secre tary of State for India in Council vs Sarvepalli Venkata Lakshmamma(1) has dealt with a question similar to the one in The Secretary of State for India in Council vs Bai Somi and Another(2) but it merely referred to the ruling in Rajindra Narain Singh 's case without dealing with the facts or the reasoning. It throws no light. The case in Janaki nath vs Pramatha Nath (3) was a decision by a single Judge and stands on the same footing as the Madras case. There is nothing else on this subject in the judgment than the short observation, "the Provident Funds Act does not in my opinion prohibit the appointment of a receiver of the sum lying to the credit of the deceased in the Provident Fund. " Possibly the view was taken that on the death of the employee and in the absence of any dependent or nominee becoming entitled to the fund under the rules, it became money payable to the heirs of the deceased and lost its original nature of being a compulsory deposit. The case of Dominion of India, repre senting E. 1. Administration and Another vs Ashutosh Das and Others(4) refers no doubt to Rajindra Narain Singh 's case but does not discuss it in any detail. Roxburgh J. merely states "surely it is an improper use of that equita ble remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed. " The decision in Ramprasad vs Moti ram(5) related to the attachment and sale in execution of a (1) (4) (2) (5) (1946) 25 Pat. 705. (3) 773 money decree of the interest of a khoposhdar in a khorposh grant which was heritable and transferable. It affords us no assistance. The learned counsel for the respondents relied on three decisions of the Privy Council as lending him support. One is Nawab Bahadur of Murshidabad 's case(1) already referred to. Vibhudapriya Thirtha Swamiar vs Lakshmindra Thirtha Swamiar(2) and Niladri Sahu vs Mahant Chaturbhuj Das and Others(3) are the other two eases and they relate to maths and alienations by way of mortgage of endowed properties by the respective mahants for alleged necessity of the institu tions. They bear no analogy to the present ease. The mahants had a beneficial interest in the properties after being provided with maintenance. A receiver could be ap pointed in respect of such beneficial interest so that the decrees obtained may be satisfied. With great respect to the learned Judges of the Court below, we are of the opinion that execution cannot be sought against the Provident Fund money by way of appointment of a receiver. This conclusion does not, however, apply to the arrears of salary and allowance due to the judgment debtor as they stand upon a different legal footing. Salary is not attach able to the extent provided in Section 60, clause (1), Civil Procedure Code, but there is no such exemption as regards arrears of salary. The learned Attorney General conceded that this portion of the amount can be proceeded against in execution. The Provident Fund amount was not paid to the subscriber after the date of his retirement in January 1947. This, however, does not make it any the less a compulsory deposit within the meaning of the Act. Whatever doubt may have existed under the earlier Act of 1897 the decisions cited for the respondent, Miller vs B.B. & C.I. Railway(4) and Raj (1) (1931) 58 I.A. 215. (3) (1926) 53 I.A. 253. (2) (1927) 54 I.A. 228. (4) 774 Kumar Mukharjee vs W.G. Godfrey(1) are under that Act, the meaning has now been made clear by the definition in section 2 of the present Act; any deposit "remaining to the credit of the subscriber or depositor after the happening of any such contingency" is also a compulsory deposit; and the contingency may be retirement from service. In the result, the appeal is allowed and the order of the lower court dated 1st February, 1949, appointing a receiver is set aside as regards the Provident Fund amount of Rs. 1,563 lying to the credit of the judgment debtor. Under the condition granting special leave, the Government will pay the 1st respondent 's costs of this appeal. Appeal allowed. Agent for the respondent No. 1: Naunit Lal. Agent for the respondent No. 2: P.K. Chatterjee.

With a view to give protection to Thika tenants against eviction and in certain other matters, the West Bengal Legislature enacted the Calcutta Thika Tenancy Act, 1949. That Act was amended by the Calcutta Thika Tenancy Amendment Act, 1953, which omitted section 28 of the Act. The question for decision in the appeal was whether the appellant against whom proceedings for execution of a decree for ejectment was pending, who had applied for relief under section 28 when that section was in force, was entitled to have his application disposed of in accordance with the provisions of section 28, which had ceased to exist retrospectively though it remained undisposed of on the date the Amendment Act came into force: Held, that section 1, sub section (2) of the Calcutta Thika Tenancy Act 1953, clearly intended that no relief under section 28 of the original 579 Act should be given in cases pending for disposal on the date the amendment became effective and section 28 ceased to exist retrospectively. The principles applicable to interpretation of statutes are four fold in nature, (1)such statutory provisions as create or take away substantive rights are ordinarily prospective ; they can be retrospective if made so expressly or by necessary implication and the retrospective operation must be limited only to the extent to which it has been so made either expressly or by necessary implication, (2)the intention of the legislature has to be gathered from the words used by it, giving them their plain, normal, grammatical meaning, (3)if any provision of a legislation the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two meanings the meaning which preserves the benefit should be adopted. , (4)If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used: Held, also, that judicial decorum ought never to be ignored. Where one Division Bench or a judge of a High Court is unable to distinguish a previous decision of another Division Bench or another Single judge and holds the view that the earlier decision was wrong, the matter should be referred to a larger Bench to avoid utter confusion. Deorajan Devi vs Satyadhan Ghosal, , overruled.

tition (Civil) No. 47 of 1992. (Under Article 32 of the Constitution of India). 789 P.L Singal and NA. Siddiqui for the Petitioner. D.N. Dwivedi, Additional Solicitor General and Mrs. Niranjana Singh for the Respondent. The Judgment of the Court was delivered by SHARMA CJ. By the present application under Article 32 of the Constantine of India, the petitioner has challenged the constitutional validity of the Representation of the People (Amendment) Ordinance, 1992 (Ordinance No.1 of 1992) and the Representation of the people (Second Amendment) Ordinance, 1992 (Ordinance No.2 of 1992), on the grounds of violation of Articles 14, 19 and 21. By the first Ordinance, section 52 of the Representation of the People Act, 1951 (the Act) providing for countermanding elections in certain circumstances has been amended. By the second Ordinance the period of 20 days in section 30 of the Act has been reduced to 14 days. Later, when the Parliament met, the amendments were incorporated by an amending Act. 2.The provisions of section 52, as they stood before the amendment, provided for countermanding the election in either of 2 contingencies (i) if a candidate whose nomination was found valid on scrutiny under section 36 or who has not withdrawn his candidature under section 37 died and a report of his death was received before the publication of the fist of contesting candidates under section 38, (ii) if a contesting candidate died and a report of his death was received before the commencement of the poll. On countermanding the Returning Officer will have to report the fact to the Election Commission; and all proceedings with reference to the election will have to be commenced de novo in all respects as if for a new election. By the first Ordinance, the area attracting the provisions of countermanding has been narrowed down by confining the provisions only to such cases where a candidate of a retired political party dies. 3.Section 30 deals with appointment of dates for nomination, scrutiny and the holding of poll and in clause (d) it is provided that the date of poll shall not be earlier than the twentieth day after the last date for the withdrawal of candidatures. With a view to expedite the whole process the words 'twentieth day ' have been substituted by the words "fourteenth day" in the said clause by the impugned Ordinace. 790 4. Learned counsel for the petitioner has strenuously contended that the distinction made by the impugned amendment between a candidate set up by a recognised political party and any other candidate is artificial inconsistent with the spirit of the election law and discriminatory. The Constitution does not confer on a candidate set up by a registered political party any special right and treats all candidates similarly. It does not recognize any categorisation. It is, therefore, argued that the difference which is being introduced by the impugned amendment is contrary to the scheme of the Constitution and violative of the equality clause in Article 14. According to the learned counsel this will also infringe the guarantee under Article 19(1)(a) in respect of freedom of speech and expression. 5.Elaborating his argument, the learned counsel contended that the right to choose its representative belongs to the voters of a particular constituency, and this should not be whittled down by amendments which have a tendency to undermine this element. Lack of wisdom in giving importance to recognized political parties was emphasised by saying that such parties almost always impose their choice of candidates in their own interest and at the cost of the welfare of the constituencies. By introducing this imbalance in the Act, it is stated, the republican character of the Constitution is jeopardised. The sum and substance of the argument on behalf of the petitioner is that no distinction can be made between one candidate and another purely depending on recognition as a political party. 6.So far the second Ordinance is concerned, the objection is that the period of 14 days, substituted by the amendment, is too short and the reduction from the period of 20 days is arbitrary and prejudicial to the larger interest for which elections are held. 7.In reply, Mr. Altaf Ahmad, Additional Solicitor General, appearing on behalf of the Union of India has strongly relied upon the statements made in the counter affidavit filed on behalf of the respondent stating that on account of increase in terrorism and physical violence in several parts of the country combined with the phenomenal increase in the number of independent candidates, the danger of disruption of the election process has been fast growing and the problem was, therefore, taken up for serious consideration. The issue was examined by the Electoral Reforms Committee set up in 1990 under the Chairmanship of the then Minister of law and 791 Justice, late Dinesh Goswami. After studying the problem deeply and considering various points of view presented in this regard the. Committee made its recommendation and, accordingly, the impugned amendment was made. Explaining the urgency of introducing the amendment by an Ordinance (when Parliament was not in session) the counter affidavit states that it had then been decided to hold the General Elections to the House of People from the State of Punjab as also the election to the State Legislature of that State and having regard to the law and order situation prevailing in the State, it was considered essential to curb the danger of disruption of the election process by amending section 52 immediately. With the same object in view, the period of 20 days mentioned in section 30 was substituted by 14 days. 8.Before proceeding to examine the merits of the argument addressed on behalf of the petitioner it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right. In England also it has never been recognised as a common law right. In this connection, we may usefully refer to the following observations in,Jyoti Basu & Others vs Debi Ghosal & Others, A.I.R.1982 S.C.983 and 986 which reads as under : "The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswani vs Retuming Officer, Namakkal Constituency, ; : ; and Jagan Nath vs Jaswant Singh, ; We proceed to state what we have gleaned from what has been said, so much as necessary for this case. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. " 792 The objection raised by the petitioner, therefore, must be examined in this background. 9.The challenge of the petitioner is directed against the differential treatment which the election law in India gives to candidates set up by political parties. The main thrust of the argument of the learned counsel is that the party system and the recognition of political parties is itself detrimental to the cause of real democracy. In any event, no additional advantage ought to have been allowed to candidates set up by political parties. This stand runs counter to the constitutional scheme adopted by the nation. It has firmly been established that the Cabinet system of Government has been envisaged by our Constitution and that the same is on the British pattern. (See Shamsher Singh vs State of Punjab; , at 827). In England where democracy has prevailed for longer than in any other country in recent times, the Cabinet system of Government has been found to be most effective. In the other democratic countries also the party system has been adopted with success. It has been realised that for a strong vibrant democratic Government, it is necessary to have a parliamentary majority as well as a parliamentary minority, so that the different points of view on controversial issues are brought out and debated on the floor of the Parliament. This can be best achieved by the party system, so that the problems of the nation may be discussed, considered and resolved in a constructive spirit. To abolish or ignore the party system would be to permit a chorus of discordant notes to replace an organised discussion. In his book "Cabinet Government" (2nd Edition page 16) Sir Ivory Jennings has very rightly said. "Party warfare is thus essential to the working of the democratic system". It is, therefore, idle to suggest that for establishing a true democratic society, the party system should be ignored. Our Constitution has clearly recognized the importance of this system, which was further emphasized by the addition of the 10th Schedule to it. The Election Symbols (Reservation and Allotment) Order is also a step in that very direction. There is also no merit whatsoever in the contention that candidates set up by political parties should not receive any special treatment. The fact that candidates set up by political parties constitute a class separate from the other candidates has been recognized by this Court in numerous cases. In paragraph 14 of the judgment in the case of Dr. P.N. Thampy Terah vs Union of India [1985] Suppl. SCC 189, the Constitution 793 Bench observed thus : "It is the political parties which sponsor candidates, that are in a position to incur large election expenses which often run into astronomical figures. We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses, is so unreasonable or arbitrary as to justify the preference being struck down upon that gournd." In D.M.L. Agarwal vs Rajiv Gandhi, ; a Division Bench of this Court took note of and emphasized the vital role of political parties in a parliamentary form of democracy and anxiety was expressed about the growing number of independent candidates. For the reasons indicated above, we do not find any substance in the argument of the learned counsel for the petitioner challenging the constitutional validity of the impugned amendment of section 52. The argument against the reduction of the period of 20 days to 14 days in section 30 is equally without any merit. The learned counsel could not suggest any good reason for holding that the period of 14 days would be inadequate or inappropriate, especially in the changed circumstances which are prevailing in the country. Consequently, this writ petition is dismissed with costs assessed at Rs. 2,500 payable to the respondent Union of India. N.V.K. Petition dismissed.

In January, 1989, in accordance with First Proviso to Section 9 of the United Provinces Act, 1916 one Smt. Sarla Devi was nominated by the State Government as the sole Woman member for the Municipal Board. On 15.2.1990 U.P. Ordinance No. 2 of 1990 later on replaced by U.P. Act No. 19 of 1990 amended the proviso of Section 9 of the Act substituting a new proviso, providing for the nomination of two Women members by the State Government. The Amendment Act also added a fourth proviso to the Section which provided that the nomination of the two women members was at the pleasure of the State Government. On 19.2.1990 the Government issuing a general notification and cancelled nominations of Women members in several Municipal Boards. Cancelling the nomination of Smt. Sarla Devi, Smt. Abida and Smt. Hazra Khatoon were nominated by the Government on 19.4.1990. On 22.7.1991 under Section 87 A of the Act a no confidence motion against one Mohd. Iqbal, the President of the Board was initiated by some members before the District Magistrate. The District Magistrate fixed 12.8.1991 for consideration of the confidence motion. On 2.8.1991, the Government nominated Smt Shyama Devi and Smt. Baijanti Devi as the two women members of the Board, cancelling the nominations of Smt. Abida and Smt Hazra Khatoon. 35 On 9.8.1991 Mohd. Iqbal, President of the Municipal Board, against whom the non confidence motion was pending, filed a writ petition in the High Court challenging the constitutional validity of the fourth proviso to Section 9 of the Act and also challenged the notification dated 2.8.1991. Further he challenged the proceedings of no confidence motion initiated against him. The High Court did not grant any stay of no confidence proceedings, but ordered that the outcome of the no confidence proceedings shall be subject to the result of the writ petition. In the meeting fixed on 12.8.1991 by the District Magistrate to consider the no confidence motion 20 members of the Board voted in favour of the no confidence motion, out of the total strength of 37 members of the Board. The newly nominated Women members by notification dated 2.8.1991 participated in the meeting, whereas Smt Abida and Hazra Khatoon neither attended the meeting nor claimed any right to attend the same. The no confidence motion dated 12.8.1991 was passed against Mohd. Iqbal. One Om Narain, The appellant No. 1 in C.A. Nos. 714 16 of 1993) who was the Vice President of the Board was elected as the President in the vacancy. The appellant Om Narain took charge of the office of the President of the Board and continued to function as the president. Mohd. Iqbal, the former President filed another writ petition challenging the no confidence motion dated 12.8.1991 passed against him. Abida and Smt Hazra Khatoon also filed a writ petition, challenging the notification dated 2.8.1991, which cancelled their nominations and nominated Smt. Shyama Devi and Smt. Baijanti Devi in their places. A Division Bench of the High Court considered all the three writ petitions two by the former President and one by the former women members. Agreeing with the decision in Dr. Smt. Rama Mishra vs State of U.P. (Writ Petition No. 11114 of 1990 disposed on 9.12.1991) allowed the writ petitions, quashing the notification dated 2.8.1991 and declaring Mohd. Iqbal to be the president of the Board. The review application flied by the appellants was dismissed by the High Court. 36 Being aggrieved against the High Court 's decision, the former Vice President and the Women members nominated by notification dated 2.8.1991 approached this Court in these appeals (C.A.Nos. 714 716 of 1993) by special leave. The C.& No. 717 of 1993 was by another Woman member of another Municipal Board, having aggrieved against the judgment of the High Court dated 9.12.1991 passed in Dr. Rama Mishra 's case. The appellants contended that the view taken in Dr. Rama Mishra 's case was not correct and the view taken in Prem Kumar Balmiki vs State of U.P. (W.P. No. 1067 of 1991, disposed of on 13.11.1991) was correct; that the State Legislature was competent to insert fourth proviso and to lay down that the nominated members shall hold office during the pleasure of the State Government; that if the initial appointment by nomination was made on political considerations, political considerations should be allowed to operate in terminating such appointments made by nomination; that there was no violation of any principle of natural justice nor such provision was arbitrary so as to be violative of Article 14 of the Constitution; and that the only requirement under the second proviso to Section 9 of the Act was that if none or only one of the members elected under clause (b) was a woman, the State Government was to nominate by notification two Women members or one more Woman member, as the case may be, so that the number of Women members in the Board was not less than two, and that the State Government did not violate the provision. The private respondents submitted that once the power of nominating the Women members was exercised by the State Government, such nominated members could not be removed prior to the completion of the term of the Board, unless they were removed on the grounds contained under section 40 of the Act; that the State Government could not be allowed to remove a nominated member at its pleasure without assigning any reason and without affording any opportunity to show cause; that once a Woman member was nominated, she got a vested right to hold the office of a member of the Board and the State Government could not be given an uncanalised, uncontrolled and arbitrary power to remove such member; that such arbitrary power without any guidelines would be contrary to the well established principles of democracy and public policy and that it would hamper the local bodies to act independently without any hindrance from the side of the Government. 37 Allowing the appeals, this Courts, HELD: 1.01. The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute. The initial nomination of the two Women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political con siderations, there can be no violation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. [50G H] 1.02. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the Legislature has provided the grounds in Section 40 of the Act under which the members could be removed, But so far as the nominated members are concerned, the Legislature in its wisdom has proved that they shall hold office during the pleasure of the Government. [51B] 1.03. Such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations. [51D] 1.04. In Dr. Rama Mishra 's case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15(3) of the Constitution. [51E] Dr. Smt. Rama Mishra vs State of U.P. Writ Petition No. 11 114 of 1990 decided on 9.12.1991 by the Allahabad High Court, over ruled. Prem Kumar Balmiki vs State of U.P. Writ Petition No. 1067 of 1991 decided on 13.11.1991 by the Allahabad High Court, approved. The special provision contained for nominating one or two 38 women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause (3) of Article 15 of the Constitution. [52B] 1.06. The provision of pleasure doctrine incorporated by adding proviso four does not, in any manner, take away the right to representation of women members in the Board, but it only permits the State Government to keep the nominated women members of its own choice. [52C] 1.07. The right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. [52E] 1.08. Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office. [52G] 1.09. The motion of no confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37, the no confidence motion has been rightly carried out and as a result of which Mohd. Iqbal was not entitled to continue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as nominated members, they are no longer entitled to continue as nominated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to continue as nominated members of the Board. [53C D]

minal Appeal No. 201 of 1962. Appeal by special leave from the judgment and order dated February 20, 1962, of the Bombay High Court in Criminal Appeal No. 1405 of 1961. C. L. Sareen, for the appellant. H. B. Khanna and R. H. Dhebar, for the respondent. January 23. The judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment of a division Bench of the 'Bombay High Court setting aside the order of acquittal made by the Additional Sessions judge, Kolaba, and convicting the appellant under section 302, read with section 34, of the Indian Penal Code and sentencing him to imprisonment for life. The case of the prosecution may be briefly stated. In the year 1959, two persons by name Ramachandra Budhya and Govind Dhaya were murdered by some people. In all II accused, including one Deoram Maruti Patil, were brought to 680 trial; and out of them 8 accused, including the said Deoram Maruti Patil, were acquitted. During that trial Deoram Maruti Patil 's uncle, by name Vishwanath, actively helped Deoram Maruti Patil in the conduct of his defence. Accused 1 and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 are the nephews of Ramachandra Budhya. They bore a grudge against Vishwanath for helping Deoram Maruti Patil and bringing about his acquittal. On August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in order to go to Pezari en route to Alibag. When they were walking along a bund, accused I to 4 came from behind, armed with long sticks and the stick carried by accused 1 had a blade attached to it. They belaboured the deceased resulting in his death. The four accused had to stand their trial for the murder of Vishwanath before the Court of the Additional Sessions judge, Kolaba. The charge against them was that they, in view of their common grudge against the deceased, combined together and did away with the deceased. The said four persons were charged under section 302, read with section 34, of the Indian Penal Code for committing the murder of the deceased in furtherance of their common intention. All of them were also charged separately for the substantive offence under section 302 of the Indian Penal Code. All the accused pleaded not guilty to the charge. While accused 1, 3 and 4 pleaded alibi, accused 2 raised a plea of private defence. The prosecution examined eye witnesses, who deposed that the four accused overtook the deceased when he was going to village Pezari and felled him down by giving him lathi blows. None of the witnesses spoke to the presence of any other person, named or unnamed, who took part in the assault of the deceased. The learned Additional Sessions judge found that the prosecution witnesses were not speaking 681 the truth and that the version given by accused 2 was the probable one. In the result he acquitted all the accused. The State preferred an appeal to the High Court against the said order of acquittal under section 302, read with section 34, of the Indian Penal Code ; but no appeal was preferred against the order of acquittal under section 302 of the Indian Penal Code. The judgment of the High Court discloses that the learned judges were inclined to believe the evidence of the witnesses, other than Kashinath and Shridar. But they dismissed the appeal against accused 1, 3 and 4 on the ground that the appeal was against an order of acquittal. But in regard to accused 2, they held that he was one of the participants in the assault and there was no basis for his plea of private defence. Having come to that conclusion, the learned judges convicted accused 2 under section 302, read with section 34, of the Indian Penal Code. As regards the persons who participated in the assault along with accused 2, it would be appropriate to quote the words of the High Court itself : "Some of the other accused were undoubtedly concerned with the incident along with accused No. 2. Since it is possible that the story as given by the prosecution witnesses, and parti cularly by Mahadeo, was exaggerated, it is not safe to hold that each one of the other accused was also a participant in the offence. In view of the possibility that one or more of the other accused, i.e., accused Nos. 1, 3 and 4, might not have participated in the offence, we do not propose to interfere with the acquittal of these accused. But we are satisfied that accused No. 2 along with one or more of the other accused committed this offence and that accused No. 2 was, therefore, clearly guilty under section 302 read with section 34 I. P. Code". To put it in other words, they, acquitted accused 1, 3 and 4 on the ground that it was doubtful whether 682 any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence. Accused 2 has filed the present appeal against the judgment of the High Court. The argument of teamed counsel for the appellant may be put thus : The learned Additional Sessions judge acquitted the accused under section 302 of the Indian Penal Code and also under section 302, read with section 34, of the said Code. The appeal in the High Court was confined only to the acquittal of the accused under section 302, read with section 34, of the Indian Penal Code. The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder of the deceased. The High Court having acquitted accused 1, 3 and 4. inconsistently convicted accused 2 for having committed the murder of the deceased jointly with the three accused who had been acquitted. To put it differently, the argument is that when three of the four named accused, who were charged under section 302, read with section 34, of the Indian Penal Code, were acquitted, the court could not convict only one of the accused on the basis of constructive liability. Learned counsel for the respondent counters this argument by stating that though the charge as well as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are not identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused 1, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder. Section 34 of the Indian Penal Code reads : "When a criminal act is done by several per sons, in furtherance of the common intention 683 of all, each of such persons is liable for that act in the same manner as if it were done by him alone. " It is well settled that common intention within the meaning of the section implied a pre arranged plan and the criminal act was done pursuant to the prearranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under section 302, read with section 34, of the Indian Penal Code, it should come to a definite conclusion that .the said person, had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of section 34 on different situations. (1) A, B, C and D are charged under section 302, read with s.34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder. (2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove , hat A, B, C and D, along with 3 others, have jointly committed the offence. As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the, named accused is guilty of murder under section 302, read with section 34, of the Indian Penal Code, though the 684 other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence ', that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for. the prosecution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. In support of the contention that a Court, even in the first illustration, can acquit 3 of the 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh vs State of Punjab (1). There, the appellants, along with three others, were charged with having committed offence under section 302, read with section 149, as well as section 323, read (1) [1962] Supp. 3 S.C.R. 848. 858. 685 with section 149, of the Indian Penal Code. The Sessions judge acquitted two of them, with the result 3 of them were convicted. One of the accused was convicted under section 302 and section 147 and two of the accused were convicted under section 302, read with section 149 and section 147, of the Indian Penal Code. The High Court confirmed their convictions. On appeal by special leave to this Court, two of the accused convicted under section 302, read with sections 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under section 302, read with sections 149 and 147, was bad in law, This Court held on the evidence that the said two accused had done the act pursuant to a pre arranged plan and therefore they could be convicted under section 302, read with section 34, of the Indian Penal Code. But in the course of the judgment different situations that might arise in the context of the question now raised were noticed. Adverting to one of the situations similar to that now before us, this Court observed : "Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily 686 displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. " It will be seen from the. said observations that this Court was visualizing a case where there was evidence on the record from which the court can come to such a conclusion. It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the ' basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclu sion is really based on evidence. The observations of this Court really apply to a case covered by the third illustration given by us. But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted accused 1, 3 and 4 under section 302, read with section 34 of the Indian Penal 687 Code, it convicted accused 2 under section 302, read with section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence. The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2, accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the findings of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgement carefully with the learned counsel. But the observations of the learned judges ;is regards the " 'other participants" in the Grime must in the context refer only to the " 'one or other of the said three acquitted accused participated in the offence committed by accused 2. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of accused 2 is clearly wrong. In the result, we allow the appeal, set aside the conviction of the appellant and direct him to be set at liberty. Appeal allowed.

The appellant was a servant in the Hyderabad Revenue Service and was holding the post of Deputy Secretary to the Government in the Public Works Department. The Government of Andhra Pradesh ordered an enquiry by the Tribunal for Disciplinary proceedings. The Tribunal enquired into the charges and recommended the dismissal of the appellant from service and after due notice to the appellant the Government of Andhra Pradesh ordered his dismissal. The appellant thereupon moved a petition under article 226 of the Constitution for quashing the aforesaid order, which was dismissed by the High Court. In this Court it was urged by the appellant that the appointment of Mr. Sriramamurthy was incompetent as he was 672 not qualified to act as the Tribunal of Enquiry under the Hyderabad Act. Held, that by virtue of section 127 thereof the States Reorgani sation Act applied even if it was inconsistent with anything in the Hyderabad Public Servants Act, 1950. By reason of section 127 and the power granted by section 122 it was competent to the Government of Andhra Pradesh to name an authority under the Hyderabad Act even though that authority might not have been qualified under the latter Act. The concluding words of section 122 shew that on the notification issuing under section 122 the existing law itself was to have effect in a different manner. Section 122 thug made the Hyderabad Act speak in accordance with the notification issued under section 122. That Act after the notification applied in accordance with the notification and was pro tanto adapted by the Notification. The adaptation of the Hyderabad Act under section 120 was not a condition precedent to the issuance of the notification and Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid.

N: Civil Miscellaneous Peti tion No. 1103 of 1989. IN Special Leave Petition No. 5597 of 1987. From the Judgment and Order dated 2.4.87 of the Punjab & Haryana High Court in C.R. No. 1095 of 1987. A.K. Sanghi for the Petitioner. C.M. Ashri and S.M. Ashri for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This application is by Kalu Ram and another, who were the respondents in special leave petition No. 5597/87. The petitioner in the special leave petition was the firm, namely, Ganpat Ram Rajkumar. It appears that the applicants had filed proceedings for evic tion against the firm in respect of the property in Narnaul in the State of Haryana under section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973. An order of eviction was passed against the said firm. Ultimately the High Court upheld the said order of eviction. The said firm came in special leave petition to this Court. This Court found that there was nothing to interfere with the order of eviction and on August 24, 1987 passed the following order: In view of the finding that the landlord has made out a case for eviction under Section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 the Special Leave Peti tion is dismissed. The order of eviction shall not be executed for a period of six months on the petitioners filing usual undertaking in this Court within four weeks from 226 today. The dismissal of the Special Leave Petition should also not prevent the petition er to the benefit of putting back into posses sion in the equivalent accommodation in the reconstructed building provided the Court lays down such condition while interpreting the provisions of the Act. We are informed that the question is pending consideration before this Court in some other cases i.e.W.P. Nos. 13385, 9921 24 of 1983 etc. " From the aforesaid, it is apparent that the said firm wanted time to vacate the premises within six months from the date of the order and representation must have been made on behalf of the said firm that the 'usual undertaking ' will be filed in this Court. Upon that, this Court restrained eviction for a period of six months from the date of the said order. This Court, further preserved the right of the said petitioner to the benefit of being put back in posses sion in the equivalent accommodation in the re constructed building provided the Court laid down such condition while interpreting the provisions of the Act. This Court recorded that the aforesaid question was pending consideration in this Court. However, it appears that the said firm did not file any undertaking, usual or otherwise. The usual undertaking to this Court means, inter alia, a statement that the party giving the undertaking is in possession of the premises and that it will further deliver vacant and peaceful possession to the landlord or the respondent. As mentioned hereinbefore, the petitioner did not file the undertaking though it had obtained time from this Court on that plea. Furthermore, the petitioner did not vacate the premises in question. It appears that Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who as sons of Ganpat Ram filed a suit in the court of Senior Sub Judge, Narnaul for permanent injunction, re straining the present applicants from ejecting Sanjay Kumar and Lala Ram. It may be mentioned that Ganpat Ram and Rajku mar are the partners of the petitioner firm M/s Ganpat Ram Rajkumar. The said firm and the partners thereof were bound in law to comply with the Order dated 24th August, 1987. In the said suit Sanjay Kumar and Lala Ram obtained an order of temporary injunction dated 3rd November, 1988. The learned Sr. Sub Judge, Narnaul, by an order in an application under Order 39 Rules 1 & 2 read with section 151 of the Code of Civil Procedure in civil suit No. 121/88 filed in the Court of Sr. Sub Judge, Narnaul, by Sanjay Kumar, Lala Ram minor sons of Rajkumar and Ved Prakash, son of Ganpat Ram as partners in the said firm, made the order of injunction. 227 The said suit was instituted against Kalu Ram and Puran Chand sons of Roshan Lal and also against Ganpat Ram. In the order passed on the 12th February, 1988 in the said suit, the learned Senior Sub Judge, Narnaul had stated that the present plaintiffs had claimed right of tenancy to the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition No. 5597 would not bind the plaintiffs therein. He, therefore, issued an injunction restraining the parties who were Kalu Ram, Puran Chand and Ganpat Ram, partners of the petitioner firm. As mentioned hereinbefore, both Sanjay Kumar and Lala Ram are sons of Rajkumar and Ved prakash respectively, who is a partner of the firm, Ganpat Ram Rajkumar. Rajkumar was a partner, Ganpat Ram was a partner and their sons and grandsons were claiming in the suit in Narnaul. On the date of the order of this Court dated 21st August, 1987 in the said Special Leave Petition, the peti tioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant possession to the applicants herein The effect of the said order of this Court, as we have set out hereinbefore, is that the applicants would have vacant possession from the firm, Ganpat Ram Rajkumar. It is not clear from the order of the learned Sr. Sub Judge, Narnaul dated 3rd November, 1988, how since the order of this Court 'dated 24th August, 1987, the plaintiffs in the suit in Narnaul Court could have in possession of the premises in question. Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court upon which time was obtained from this Court, it appears to us that there is a clear non compliance of the order. The order stated that vacant possession was to be given. In the aforesaid view of the matter, the question that requires consideration is how will this order of eviction passed by the High Court and confirmed by this Court by dismissing the Special Leave Petition on the terms mentioned hereinbefore on 24th August, 1987 is to be enforced or implemented? In our opinion, the said order must be imple mented and cannot be allowed to be defeated by the dubious methods adopted by the partners of the said firm of Ganpat Ram Rajkumar. The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead this Court. If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this Court. This application was made for contempt. It may or may not be appropriate to pass any order punishing the wrongdoers. But there is no doubt that the order of this Court dated 24th August, 1987 is being sought to be defeated and frustrated. Sons and grandsons 228 of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court. Mr Ashri, learned counsel for the respondents submitted that the respondents could not be held guilty of contempt of court. It was further submitted by him that no undertaking had, in fact, been given, as such there is no question of breach of any undertaking by anybody. Mr. Ashri was right. In fact, no undertaking was given. It is also true that the parties who instituted suit in Narnaul and obtained the order of injunction dated 3rd November, 1988 were not par ties before this Court when this Court passed the order on the 24th August, 1987 nor are those parties successors in interest, according to law, of those who were bound by the order dated 24th August, 1987, as such. As we look at it, the order of this Court is an order of the High Court with a sanction of this Court and the applicants were entitled to have it executed. It has been interfered, by the firm along with the plaintiffs in the said suit at Narnaul. Mr. Ashri referred to certain observations of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., ; , wherein pending decision of a dispute between the parties referred to an arbitrator, the High Court passed with the agreement of the parties a consent order appointing a receiver. The Court directed that the receiver should take charge of the property forthwith from the appellant therein and submit periodical reports to the Court regarding the running of the business. Without making an express direction to the appel lant, that the properties in its possession should be handed over to the receiver, the High Court directed the appellant not to interfere with the receiver in the running of the business and that the appellant should give the receiver all cooperation that the receiver might require. In the petition filed before the High Court in that case, the respondent alleged that by failing to hand over possession of the property to the receiver, in terms of the consent order the appellant had committed breach of the undertaking given to the court and hereby committed an offence punishable under section 2(b) of the (hereinafter referred to as 'the Act '). The High Court held the appellant to be guilty of contempt of court and sentenced him to undergo civil imprisonment. This Court held that the act of the appellant in not complying with the terms of the consent order did not amount to an offence under section 2(b) of the Act, however improper or reprehensible his conduct might be. It was further held that when a person appearing before a court files an application or affidavit giving an undertaking to the court or when he clearly and expressly gives an oral undertaking which is incorporated by the court in its order and fails to honour that undertaking then a wilful breach of 229 the undertaking would amount to an offence punishable under the Act. An undertaking given by one of the parties should be carefully construed by the Court to find out the nature and extent of the undertaking given by the person concerned. It is not open to the court to assume an implied undertaking when there was none of the record, this Court said. As mentioned hereinbefore, the facts of that decision are significantly different from the facts in this case. The parties by no conduct, overt or otherwise, herein misled this Court. Indubitably, in the instant case, the decree of eviction was passed by the learned St. Sub Judge, Narnaul and upheld by the High Court of Punjab & Haryana. This Court dismissed the Special Leave Petition and granted time of six months on the plea that the petitioner firm would file an undertaking. All this could not have happened if the present plaintiffs in the Narnaul suit had not consented or allowed it to be passed or stood by. It is difficult to accept the position that they did not know. In the facts of this case, we are of the opinion that they deliberately did not object to this Court passing the order and thereby allowed the firm to mislead this Court. They are, therefore, bound to see that the order of this Court is complied with. Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no court should allow any party to mislead the court and thereby frustrate its order. In the aforesaid view of the matter, we are of the opinion that though perhaps the petitioner firm could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August, 1987 and see that vacant and peaceful posses sion is given to the applicant in the interest of justice. Mr. Sanghi, learned counsel for the applicant drew our attention to an order of this Court in Thackar Harirarn Motirarn vs Balkrishan Chatrathu Thacker & Ors., [1988] 3 JT SC 18. That decision was, however, on the question of enter taining a Special Leave Petition or not. Special leave was not entertained in that case because the petitioner therein had obtained time from the High Court in respect of decree of eviction. In this case, also the Special Leave Petition was dismissed but out of consideration for the difficulties of the petitioner firm in the said petition, this Court was induced to grant some time on certain considerations. It appears that this Court was mislead. It further appears that the respondents, all of them, were guilty of acts which led to the situation and thereby frustrate the order of this Court. Another point was taken about limitation of this appli cation under section 20 of the Act. section 20 states that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after 230 the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In this case, the present application was filed on or about 3rd November, 1988 as appears from the affidavit in support of the application. The contempt considered, inter alia, of the act of not giving the possession by force of the order of the learned Sr. Sub Judge, Narnaul dated 12th February, 1988. Therefore, the application was well within the period of one year. Failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong. There was no scope for application of s: 20 of the Act. In the aforesaid view of the matter, we direct the learned St. Sub Judge, Narnaul (Haryana) to cause deliver up the vacant possession of the shop situated at Sabji Mandi, Narnanl. Distt. Mohindergarb (Haryana), if necessary with the help of police forthwith. The learned Sr, Sub Judge, Narnaul is also directed to report compliance immediately. Save as aforesaid, there will be no order on this applica tion, but we direct that the respondents, namely, firm Ganpat Ram Rajkumar, Ganpat Ram Rajkumar, Sanjay Kumar, lala Ram and Ved Prakash should pay and bear the costs of this application to the applicant, which is quantified and as sessed at Rs.2,500 (Rupees two thousand five hundred only). Save as aforesaid, there will be no further orders on this application. This order will not prevent or prejudice the applicants from taking any step for recovery of arrears of rent and mesne profit as they are entitled to in accordance with law. Y. Lal Petition dis posed of.

The appellant is a company having its registered office at Ahmednagar in Maharashtra. It carries on business as manufacturers of Ayurvedic preparations including "Asvas" and "Aristhas". At the material time the appellant was manufacturing and selling an Ayurvedic product, "Ashvagand harist" which is a medicinal preparation containing self generated alcohol but not capable of being consumed as ordinary alcoholic beverages. came into force on 1.4.1957. The schedule to the said Act contained two items specifying "medicinal and toilet preparations containing alcohol" which are prepared by distillation or to which alcohol has been added and which are capable of being consumed as ordinary "alcoholic bever age" and "medicinal and toilet preparations not otherwise specified containing alcohol" as the commodities excisable under the provisions of the Act. The said "Ashvagandharist" was treated and accepted by the Excise Authorities as being exempt from the payment of excise duty upon the basis and footing that the same was an Ayurvedic preparation contain ing self generated alcohol which was not capable of being consumed as ordinary alcoholic beverage and which fell under item 2(i) of the schedule in respect of which, the rate of excise duty prescribed in the schedule was "Nil". 130 The Act was amended by Amendment Act 19 of 1961 whereby concept of "patent and proprietary" medicine was introduced in the schedule. The Amendment Act, by an Explanation intro duced in the schedule the definition of "patent and proprie tary" medicine contained in the Drugs Act 1940. Despite the said amendment in the schedule the appellants ' product continued to be treated as exempt from the liability to pay excise duty on the ground that it was covered under item 2(i) of the schedule which item was re numbered as item 3(i) of the schedule. Thereafter by section 18 of the Finance Act 1962, the Act was further amended by substitution of Expla nation I to the schedule of the Act. By the said explana tion, a "patent and proprietary" medicine was defined as a medicinal preparation of the description and the type speci fied in the Explanation. The said Explanation was given retrospective effect from April 23, 1962. In pursuance of the said Explanation I brought by the Finance Act, Director of Prohibition and Central Excise, Govt. of Maharashtra, Bombay issued a circular dated May 31, 1962, which inter alia directed that the medicinal preparations containing self generated alcohol but not capable of being consumed as alcoholic beverage were to be treated as products falling under Item No. I and not Item 3 of the schedule. As a result of that circular, the Respondents levied excise duty on the appellants ' product amounting to Rs.2, 18,282.16p. and realized the same from the appellant. The appellant paid the amount "under protest". With a view to recover the aforesaid amount, which according to the appellant, was illegally recovered by the Respondents, the appellant filed a suit, being special suit No. 23 of 1965 in the Court of Civil Judge Sr. Division, Ahmednagar. The Civil Judge by his order dated 27.3.69 decreed the appellantplaintiff 's suit with interest at 6% per annum from the date of the suit till realisation. The Respondents appealed to the High Court against the Order of the Civil Judge and the High Court allowed the appeal, reversed the Judgment and decree passed by the Civil Judge and dismissed the appellant 's suit. Hence this appeal by the plaintiff appellant by special leave. Allowing the appeal, this Court, HELD: From Explanation I of the Schedule of the Act as substituted by Act 5 of 1964 it is clear that patent or proprietary medicine 131 means any medicinal preparation which is not specified in a monograph in a Pharmacopoeia, Formulary or other publica tions notified in this behalf by the Central Government in the Official Gazette. [144C] To be a patent medicine one would be required to have a patent. A patented article means an article in respect of which a patent is in force, [144D] A patent medicine will, therefore, mean medicine in respect of which a patent is in force. [144E] Patent means a grant of some privilege property, or authority, made by the Government or sovereign of a country to one or more individuals. A proprietor is one who has the legal right or exclusive title to anything. It is synonymous with owner. A person entitled to a trade mark or a design under the Acts for the registration or patenting of trade mark or design is called a proprietor of the trade mark or design. [144E F] A Schedule in an Act of Parliament is a mere question of drafting. It is the legislative intent that is material. An Explanation to the Schedule amounts to an Explanation in the Act itself. [147F] The Schedule may be used in construing provisions in the body of the Act. It is as much an Act of the Legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the Schedule cannot control or prevail against express enactment and in case of any inconsistency between the schedule and the enactment, the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act. [147H; 148A B] An explanation is different in nature form a proviso, for a proviso excepts, excludes or restricts while an expla nation explains or clarifies. Such explanation or clarifica tion may be in respect of matters whose meaning is implicit and not explicit in the main section itself. [149F] Bihta Marketing Union vs Bank of Bihar, ; ; ; State of Bombay vs United Motors, ; ; Collector of Customs vs G. Dass & Co., AIR 1966 SC 1577; Burmah Shell Oil Ltd. vs Commercial Tax Officer, AIR 1961 SC 315: ; Dattatraya Govind Mahajan vs State of Maharashtra, ; (928): ; and Hiralal 132 Ratanlal vs State of U. P., ; Ex praecedentibus et consequentibus optima fit interpre tatio. The best interpretation is made from the context. Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare Vel respondere. It is unjust to decide or respond as to any particular part of a law without examining the whole of the law. Interpretare et concordare leges ligibus, est optimus interpretendi modus. To interpret and in such a way as to harmonize laws with laws, is the best mode of interpretation. [151G H] Jura eodem modo distituentur quo constitutuntur. Laws are abrogated by the same means (authority) by which they are made. [152A] Every word in a Statute is to be given a meaning. A construction which would leave without effect any part of the language of a statute will normally be rejected. Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole statute. [152B] A specific provision to include Ayurvedic preparations containing self generated alcohol which are not capable of being consumed as ordinary alcoholic beverages was neces sary. That having not been done by the Explanation itself, it was not permissible to include it by the Circular. The Explanation I could not have been in conflict with the provisions of the Act and the Circular could not have been in conflict with the Explanation, the Schedule, the Rules and the Act. [152E F] The Court set aside the order of the High Court and restored that of the Civil Judge decreeing the suit. [152G] Inland Revenue Commissioners vs Gittus, [1920] I KB 563; Baidyanath Ayurved Bhawan Pvt. Ltd. vs The Excise Commis sioner, U.P.; , ; Mohanlal Maganlal Bhavsar vs Union of India, ; Commissioner of Sales Tax vs The Modi Sugar Mills Ltd., ; and Cape Brandy Syndicate vs Commissioners of Inland Revenue, , referred to.

90 of 1956. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. R. V. section Mani, for the petitioner. N.S. Bindra, K. L. Hathi and R. H. Dhebar, for the respondents. January 12. The Judgment of the Court was delivered by MUDHOLKAR, J. This is a petition under article 32 of the Constitution for issuing an appropriate writ to the respondents not to enforce the provisions of s.1144 of the Criminal Procedure Code or an appropriate writ forbidding respondent No. 4 from proceeding further with the prosecution of the petitioner for offences under sections 143 and 188 of the Indian Penal Code read with section 1 17 thereof, for quashing the proceedings against the petitioner before respondent No. 4 and for the issue of a writ of habeas corpus to respondents 1 to 3 directing them to produce or to cause to be produced the petitioner to be dealt with according to law and to set him at liberty. The facts which have led up to the petition are briefly as follows: There are two unions of textile workers in Nagpur, one known as the Rashtriya Mill Majdoor Sangh and the other as Nagpur Mill Majdoor Sangh. The former is a branch of the Indian National Trade Union Congress. The Rashtriya Mill Majdoor Sangh entered into an agreement with the management of the Empress Mills regarding the closure of Empress Mill No. 1 for rebuilding it and regarding the employment of workers who were employed therein in a third shift. This agreement was opposed by the Nagpur Mill Majdoor Sangh. On January 25, 1956, a group of workers belonging to the Nagpur Mill Majdoor Sangh went in a procession to Gujar 's Wada, Mahal, Nagpur, where the office of the Rashtriya Mill Majdoor Sangh is located. 54 426 It is said that a scuffle took place there between some members of the procession and some workers belonging to Rashtriya Mill Majdoor Sangh. Thereupon an offence under section 452 read with section 147 of the Indian Penal Code was registered by the police on January 27, 1956. A large procession consisting of the workers of the Nagpur Mill Majdoor Sangh was taken out. This procession marched through the city of Nagpur shouting slogans which, according to the District Magistrate, were provocative. On the same night a meeting was held at the Kasturchand Park in which it was alleged that the workers belonging to the Nagpur Mill Majdoor Sangh were instigated by the speakers who addressed the meeting to offer satyagraha in front of the Empress Mill No. 1 and also to take out a procession to the office of the Rashtriya Mill Majdoor Sangh. On January 28,1956, the workers belonging to the Nagpur Mill Majdoor Sangh assembled in large numbers in Mahal Chowk and on Mahal road blocking the traffic on the road. It is said that these persons were squatting on the road and as they refused to budge the District Magistrate passed an order at 4 00 a.m. on January 29, 1956, which came into force immediately and was to remain in force for a period of fifteen days prohibiting, among other things, the assembly of five or more persons in certain areas specified in the order. The petitioner entertained the view that the order promulgated by the District Magistrate under section 144 of the Code of Criminal Procedure was an encroachment on the fundamental rights of the citizens to freedom of speech and expression and to assemble peaceably and without arms, guaranteed under article 19(1)(a) and (b) of the Constitution and, therefore, he held a public meeting outside the area covered by the aforesaid order. It is alleged that at that meeting he criticised the District Magistrate and exhorted the workers to contravene his order and take out processions in the area covered by the order. Thereupon he was arrested by the Nagpur police for having committed the offences already referred to and produced before a magistrate, The magistrate remanded him to 427 jail custody till February 15, 1956. The petitioner 's application for bail was rejected on the ground that the accusation against him related to a Don bailable offence. Thereupon the petitioner moved the High Court at Nagpur for his release on bail but his application was rejected on February 22, 1956. The petitioner then presented a petition before the High Court under section 491 of the Code of Criminal Procedure for a writ of habeas corpus. That petition was dismissed by the High Court on May 9, 1956. The petitioner then moved the High Court for granting a certificate under article 132 of the Constitution. The High Court refused to grant the certificate non the ground that in its opinion the case did not involve any substantial question of law regarding the interpretation of the Constitution and was also not otherwise fit for grant of a certificate. On April 23, 1956, the petitioner presented the present petition before this Court. The petitioner also sought an exparte order for the stay of the proceedings before the respondent No. 4 till the decision on the petition to this Court. This Court admitted the petition but rejected the application for stay. On May 6, 1956, the petitioner took out a notice of motion for securing stay of the proceedings before respondent No. 4. On May 28,1956, this Court ordered that the entire prosecution evidence be recorded but the delivery of the judgment be stayed pending the decision of this petition. After the proceedings were stayed by this Court, the petitioner was released on bail by the trying magistrate. On behalf of the petitioner Mr. Mani has raised the following contentions: (1) That section 144 of the Code of Criminal Procedure in so far as it relates to placing of restrictions on freedom of speech and freedom of assembly confers very wide powers on the District Magistrate and certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under article 19(1)(a) and (b) of the Constitution. (2) The District Magistrate constitutes the whole legal machinery and the only check for control on 428 his powers is by way of a petition to him to modify or rescind the order, that thus the District Magistrate becomes " a judge in his own cause" presumably, what learned counsel means is a judge with regard to his own decision and so the remedy afforded by the section is illusory. Further the remedy by way of a revision application before the High Court against the order of the District Magis trate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression. (3 Section 144 adopts "likelihood" or "tendency" as tests for judging criminality ; the test of determining the criminality in advance is unreasonable. (4) Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order. (5) Even assuming that section 144 of the Code of Criminal Procedure is not ultra vires the Constitution, the order passed by the District Magistrate in this case places restrictions which go far beyond the scope of clauses (2) and (3) of article 19 and thus that order is unconstitutional. Learned counsel also challenged the validity of the order on grounds other than constitutional, but we need not consider them here since it will be open to the petitioner to raise them at the trial. This being a petition under article 32 of the Constitution, the petitioner must restrict himself to those grounds which fall within cl. (1) thereof. We think it desirable to reproduce the whole of section 144. (1)In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the 'State Government ' or the Chief Presidency Magistrate or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and im mediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating 429 the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place. (4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor in office. (5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for doing. (6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the 'State Government ' by notification in the Official Gazette, otherwise directs. " Sub section (1) confers powers not on the executive but on certain Magistrates. This provision has been amended in some States, as for instance, the former Bombay State where power has been conferred on the Commissioner of Police to pass an order thereunder. But we are not concerned with that matter here 430 because that provision is not contained in the law as applicable to the former State of Madhya Pradesh with which alone we are concerned in the matter before us. Under sub section (1) the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the subsection requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The sub section further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints. Sub section (2) requires the Magistrate ordinarily to serve a notice on the person against whom the order is directed and empowers him to proceed exparte only where the circumstances do not admit of serving such a notice in due time. Sub section (3) does not require any comment. Sub section (4) enables a Magistrate to rescind or alter an order made under this section and thus enables the person affected, if the order is addressed to a specified individual, or any member of the public, if the order is addressed to the public in general, to seek, by making an application, exemption from compliance with the order or to seek a modification of the order and thus gives him an opportunity to satisfy the Magistrate about his grievances. The Magistrate has to deal with applications of this kind judicially because he is required by sub section (5) to state his reasons for rejecting, wholly or in part, the application made to him. Finally the normal maximum duration of the order is two months from the date of its making. The restraints imposed by the order are thus intended to be of a temporary nature. Looking at the section as a whole it would be clear that, broadly speaking, it is intended to be availed of for preventing disorders, obstructions and annoyances and is intended to secure the public weal. The powers are exercisable by responsible magistrates and these magistrates have to act judicially. Moreover, the 431 restraints permissible under the provision are of a temporary nature and can only be imposed in an emergency. Even so, according to the learned counsel these provisions place unreasonable restrictions on certain fundamental rights of citizens. Firstly, according to learned counsel restrictions on the rights guaranteed by cls. (2) and (3) of article 19 of the Constitution can be placed in the interest of id public order " and not in the interest of the " general public ", which expression, according to him is wider in its ambit than public order and that since section 144 enables a magistrate to pass an order in the interest of the general public the restrictions it authorises are beyond those permissible under cls. (2) and (3) of article 19. It is significant to note that section 144 nowhere uses the expression " general public ". Some of the objects for securing which an order thereunder can be passed are, " to prevent obstruction, annoyance, injury. . . etc. No doubt, the prevention of such activities would be in the ,public interest" but it would be no less in the interest of maintenance of " public order. " Secondly, according to learned counsel, section 144 is an amalgam of a number of things to many of which there is no reference even in el. (2) of article 19. In order to enable the State to avail of the provisions of cls. (2) and (3), he contends, a special law has to be passed and a provision like section 144 can serve no purpose. This contention has only to be mentioned to be rejected. Clauses (2) to (6) of article 19 do not require the making of a law solely for the purpose of placing the restrictions mentioned in them. Thirdly, according to learned counsel sub section (1) of a. 144 does not require the magistrate to make an enquiry as to the circumstances which necessitate the making of an order thereunder. It is true that there is no express mention anywhere in section 144 that the order of the magistrate should be preceded by an enquiry. But we must construe the section as a whole. The latter part of sub section (1) of section 144 specifically mentions that the order of the magistrate should sot out the 432 material facts of the case. It would not be possible for the magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. Clearly, therefore, the section does not confer an arbitrary power on the magistrate in the matter of making an order. It is contended that section 144 of the Code of Criminal Procedure confers very wide powers upon certain magistrates and that in exercise of those powers the magistrates can place very severe restrictions upon the rights of citizens to freedom of speech and expression and to assemble peaceably and without arms. It seems to us, however, that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity or a riot, or " an affray ". These factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammelled. Further, it should be borne in mind that no one has a right to cause " obstruction, annoyance or injury etc., " to anyone. Since the judgment has to be of a magistrate as to whether in the particular circumstances of a case an order, in exercise of these powers, should be made or not, we are entitled to assume that the powers will be exercised legitimately and honestly. The section cannot be struck down on the ground that the magistrate may possibly abuse his powers. It is also true that initially it is the magistrate con cerned who has to form an opinion as to the necessity of making an order. The question ', therefore, is whether the conferral of such a wide power amounts to an infringement of the rights guaranteed under article 19(1)(a) and (b) of the Constitution. The rights guaranteed by sub cl. (a) are not absolute rights but are subject to limitations specified in cl. (2) of article 19 which runs thus: " Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,, or prevent the 433 State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. " Similarly the rights to which sub cl. (b) relates are subject to the limitations to be found in cl. (3) of article 19, which runs thus: " Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub clause. " The Code of Criminal Procedure was an existing law at the commencement of the Constitution and so, in the context of the grounds on which its validity is challenged before us, what we have to ascertain is whether the conferral thereunder of a power on a magistrate to place restrictions on the rights to which sub section (a) and (b) of article 19 relate is reasonable. It must be borne in mind that the provisions of section 144 are attracted only in an emergency. Thereunder, the initial judge of the emergency is, no doubt, the District Magistrate or the Chief Presidency Magistrate or the sub divisional magistrate or any other magistrate specially empowered by the State Government. But then, the maintenance of law and order being the duty and function of the executive department of the State it is inevitable that the q question of formation of the opinion as to whether there is an emergency or not must necessarily rest, in the first instance, with those persons through whom the executive exercises its functions and discharges its duties. It would be impracticable and even impossible to expect the State Government itself to exercise those duties and func tions in each and every case. The provisions of the section therefore which commit the power in this regard to a magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. We 55 434 may also point out that the satisfaction of the magistrate as to the necessity of promulgating an order under section 144 of the Code of Criminal Procedure is not made entirely subjective by the section. We may also mention that though in an appropriate case a magistrate is empowered to make an order under this section ex parte the law requires that he should, where possible serve a notice on the person or persons against whom the order is directed before passing that order. Then sub section (4) provides that any magistrate may either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section. This clearly shows that even where an ex parte order is made the person or persons affected thereby have a right to challenge the order of the magistrate. Sub section (5) provides that where such a challenge is made, the magistrate shall give an early opportunity to the person concerned of appearing before him and showing cause against the order. The decision of the magistrate in such a proceeding would undoubtedly be a judicial one inasmuch as it will have been arrived at after hearing the party affected by the order. Since the proceeding before the magistrate would be a judicial one, he will have to set aside the order unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant it. Further, since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which section 144 confers on certain magistrates it places unreasonable restrictions on certain fundamental rights. Learned counsel, however, says that the right conferred on the aggrieved person to challenge the order of the magistrate is illusory as he would be a judge with regard to his own decision. This argument would equally apply to an application for review made in a civil proceeding and we do not think that it is at all a good one. Again, though no appeal has been provided in the Code against the Magistrate 's order under section 144, the High Court has power under section 435 read with section 439 of the Code to entertain an application for the revision of such an order, The powers of the High Court in 435 dealing with a revision application are wide enough to enable it to quash an order which cannot be supported by the materials upon which it is supposed to be based. We may point out that sub section (1) of section 144 requires a magistrate who makes an order thereunder to state therein the material facts upon which it is based and thus the High Court will have before it relevant material and would be in a position to consider for itself whether that material is adequate or not. As an instance of a case where the High Court interfered with an order of this kind, we may refer to a decision in P. T. Chandra, Editor, Tribune vs Emperor(1). There, the learned judges quite correctly pointed out that the propriety of the order as well as its legality can be considered by the High Court in revision, though in examining the propriety of the order the High Court will give due weight to the opinion of the District Magistrate who is the man on the spot and responsible for the maintenance of public peace in the district. In that case the learned judges set aside an order of the District Magistrate upon the ground that there was no connection between the act prohibited and the danger apprehended to prevent which the order was passed. We would also like to point out that the penalty for infringing an order under section 144 is that provided in section 188, Indian Penal Code. When, therefore, a prosecution is launched thereunder, the validity of the order under section 144, Criminal Procedure Code, could be challenged. We are, therefore, unable to accept Mr. Mani 's contention that the remedy of judicial review is illusory. The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Scheneck 's case(2) that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under article 19 (1) of the Constitution are not absolute rights but, as pointed out in State of Madras (1) A.I.R. 1942 Lah. 171. (2) Scheneck vs U. section, ; 436 vs V. G. Row (1) are subject to the restrictions placed in the subsequent clauses of article 19. There is nothing in the American Constitution corresponding to cls. (2) to (6) of article 19 of our Constitution. The Fourteenth Amendment to the U. section Constitution provides, among other things, that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; that of the Constitution of the United States. Then again, the Supreme Court of the United States has held that the privileges and immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down in Scheneck 's case (2) has to be understood. The language of section 144 is somewhat different. The test laid down in the section is not merely " likelihood " or " tendency ". The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger. Apart from this it is worthy of note that in Scheneck 's case (2) the Supreme Court was concerned with the right of freedom of speech and it observed: "It well may be that the prohibition of law abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a (1) ; (2) ; 437 panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. " Whatever may be the position in the United States it seems to us clear that anticipatory action of the kind permissible under section 144 is not impermissible under cls. (2) and (3) of article 19. Both in el. (2) (as amended in 1951) and in cl. (3) power is given to the legislature to make laws placing reasonable restrictions on the exercise of the rights conferred by these clauses in the interest, among other things, of public order. Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order. We must, therefore, reject the contention. It is no doubt true that since the duty to maintain law and order is cast upon the Magistrate, he must perform that duty and not shirk it by prohibiting or restricting the normal activities of the citizen. But it is difficult to say that an anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order. In such circumstances that could be the only mode of discharging the duty. We, therefore, reject the contention that section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order. Coming to the order itself we must consider certain objections of Mr. Mani which are, in effect, that there are three features in the order which make it unconstitutional. In the first place, according to him the order is directed against the entire public though the magistrate has stated clearly that it was promulgated 438 because of the serious turn which an industrial dispute had taken. Mr. Mani contends that it is unreasonable to place restrictions on the movements of the public in general when there is nothing to suggest that members of the public were likely to indulge in activities prejudicial to public order. It is true that there is no suggestion that the general public was involved in the industrial dispute. It is also true that by operation of the order the movements of the members of the public would be restricted in particular areas. But it seems to us that it would be extremely difficult for those who are in charge of law and order to differentiate between members of the public and members of the two textile unions and, therefore, the only practical way in which the particular activities referred to in the order could be restrained or restricted would be by making those restrictions applicable to the public generally. The right of citizens to take out processions or to hold public meetings flows from the right in article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India. If, therefore, any members of the public unconnected with the two textile unions wanted to exercise these rights it was open to them to move the District Magistrate and apply for a modification of the order by granting them an exemption from the restrictions placed by the order. Mr. Mani 's contention, and that is his second ground of attack on the Magistrate 's order, is that the only exception made in the order is with respect to funeral processions and religious processions and, therefore, it would not have been possible to secure the District Magistrate 's permission for going out in procession for some other purpose or for assembling for some other purpose in the area to which the order applied. So far as the customary religious or funeral processions are concerned, the exemption has been granted in the order itself that if anyone wanted to take out a pro cession for some other purpose which was lawful it was open to them under section 144, sub section (4), to apply for an alteration of the order and obtain a special exemption. 439 More omission of the District Magistrate to make the exemption clause of the order more comprehensive would not, in our opinion, vitiate the order on the ground that it places unreasonable restrictions on certain fundamental rights of citizens. The third and last ground on which Mr. Mani challenged the constitutionality of the order was that while the order prohibits the shouting of provocative slogans in public places etc., it does not give any definition of what was meant by the expression "provocative slogans ". Therefore, according to Mr. Mani, this order is vague and must be deemed to be placing unreasonable restrictions on the rights of free speech of citizens. It seems to us that the expression " provocative slogans " has necessarily to be understood in the context in which it has been used in the order and, therefore, it cannot be regarded as vague. We have, therefore, reached the conclusion that the order of the District Magistrate is not unconstitutional either because section 144 is itself violative of fundamental rights recognised in article 19 or on the ground that it is vague and places unreasonable restrictions on those fundamental rights. We, therefore, dismiss this petition. Shortly after this petition was made to this Court, the petitioner presented a special leave petition in which he seeks to challenge the judgment of the Nagpur High Court dated April 9, 1956, dismissing his writ petition to that High Court. The points raised in the Special Leave Petition are similar to those raised in this petition. Since we are dismissing this petition, there can be no question of granting the special leave to the petitioner to appeal against the judgment of the Nagpur High Court. Petition dismissed.

In a plaint the following reliefs were asked for, viz., (i) that it be declared that the appointment of 'defendant No. 2 as chairman of the board of directors of a company is illegal, invalid and ultra vires and that he has no, right to act as chairman, managing director etc., and (ii) that a receiver be appointed to take charge of the management of the company. The 'plaint bore a court fee stamp of Rs. 10 only but, the objection of the defendants, ad valorem fee was paid Rs. 51,000 which was the valuation of the suit. The suit was dismissed and the plaintiff preferred an appeal giving up the second relief and paying a court fee of Rs. 10 only. The appellate Court ordered payment of ad valorem court fee and non compliance rejected the memorandum of appeal, 0n further appeal: ' 198 Held, (i) that it was o pen to the appellant to give up the second relief in appeal and, as the subject matter of the appeal was of & purely declaratory nature, the memorandum of appeal was properly stamped; (ii)that the first relief was of a purely declaratory nature and did not involve any consequential relief ; (iii)that section 12 of the Court Fees Act did not preclude the Court from considering the correctness of the order of the low er appellate court rejecting the appeal the ground that the memorandum of appeal was not properly stamped. The finality imposed by section 12 of the Court Fees Act deci sions relating to court fee attaches only to decisions concerning valuation simpliciter; it does not attach to decisions relating to the category under which a suit or appeal falls for purposed of court fees. Section 12 of the Court Fees Act when it says that such a decision shall be final between the parties only makes the decision of the court a question of court fee non appealable and places it the same footing as other interlocutory non appealable orders under the Code and does no more than that. If a decision under section 12 is reached by assuming jurisdiction which the court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, when a party thinking that a decision under section 12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision the question of court fee, then it is open to him to challenge the interlocutory order even the question of court fee in the suit or appeal. The word " finality " construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that.

Appeal No. 501 of 1957. Appeal by special leave from the judgment and order dated September 13, 1954, of the Bombay High Court in Income tax Reference No. 13 of 1954. K. N. Rajagopala Sastri and D. Gupta, for the appellant. A. V. Viswanatha Sastri and P. L. Vohra, for the respondent. April 6. The Judgment of section K. Das, J. L. Kapur, M. Hidayatullah and T. L. Venkatarama Aiyar, JJ. was delivered by Venkatarama Aiyar, J. J. C. Shah, J. delivered a separate Judgment. VENKATARAMA AIYAR, J. The respondents were the owners of a steamship called "El Madina". That was requisitioned by the Government during the last world war, and was lost by enemy action on March 16, 1944. As compensation therefore, the Government paid the respondents Rs. 20,00,000 on July 17, 1944; Rs. 23,00,000 on December 22, 1944; and Rs. 33,333 on August 10, 1946. The original cost of the ship was Rs. 24,95,016 and its written down value at the commencement of the year of account was Rs. 15,68,484. The difference between the cost price and the written. down value viz., Rs. 9,26,532 represents the deductions which had been allowed year after year on account of depreciation. As the total compensation received exceeded the cost price, the respondents have recouped themselves all the amounts deducted for depreciation. 792 On these facts, the point in controversy between the respondents and the Department is whether the amount of Rs. 9,26,532 is liable to be included in the total income of the company for the year of assessment which is 1946 47. The provision of law under which the charge is sought to be imposed is section 10(2)(vii) of the Indian Income tax Act, 1922, hereinafter referred to as the Act, and that is, omitting what is not relevant, as follows: "(2) Such profits or gains shall be computed after making the following allowances, namely: (vii) in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value: Provided further that where any insurance, salvage or compensation moneys are received in respect of any such building, machinery or plant as aforesaid, and the amount of such moneys exceeds the difference between the written down value and the scrap value no amount shall be allowable under this clause and so much of the excess as does not exceed the difference between the original cost and the written down value less the scrap value shall be deemed to be profits of the previous year in which such moneys were received:". It is not disputed by the respondents that the sum of Rs. 9,26,532 would be profits liable to be taxed under this proviso, if it applies. Equally it is not disputed by the appellant that apart from this proviso the amount in question could only be regarded as capital receipt, not liable to be taxed. Before the income tax authorities, the respondents sought to avoid the application of this proviso on the ground that on representations made by them with reference to this very matter, the Board of Revenue had directed that for the purpose of Rule 4, Schedule II, of the Excess Profits Tax Act, 1940, the amount payable as 793 compensation (both the initial advance as well as any further payment that may be made) should be taken into account as though it had actually been received within thirty days of the date of the loss of the ship; and that in consequence the amount should be deemed to have been received on April 16, 1944. If that contention is correct, the amounts would have been received not in the year of account which was July 1, 1944, to June 30, 1945, but in the year previous there to, and they could not therefore be included in the income of the company for the year of assessment. This contention, however, was rejected by all the income tax authorities. Dealing with it, the Appellate Tribunal observed in its Order dated July 15, 1953, that the concession which the Board of Revenue had intended to give was limited to excess profits tax, and could not in any event be relied on for the purpose of cutting down the operation of the statutory provision enacted in the relevant proviso ins. 10(2)(vii); and that the material date was when the compensation was in fact received and that was in the year of account and not when it became due and payable, in the year previous thereto. In the result, the Tribunal held that the amount was liable to be included in the total income of the company. The respondent then filed an application before the Tribunal, under section 66(l) of the Act, requiring certain questions to be referred to the court, and one of them was as follows: "Whether in view of the fact that the 4th proviso to section 10(2)(vii) of the Indian Income tax Act did not apply to the assessment for the Assessment year 1945 46 and under the law in force as applicable to that assessment year the sum of Rs. 9,26,532 which accrued in the previous year relevant to that Assessment year was not taxable at all, and the fact that having regard to the Assessee 's method of accounting the said sum should not be assessed in any other year, the Assessment in respect of the ' said sum in the subsequent Assessment year 1946 47 was valid in law." 794 By its order dated February 9, 1954, the Tribunal referred the following question for the opinion of the court: "whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assessment year 1946 47. " The reference came up for hearing before a Bench of the Bombay High Court consisting of Chagla, C.J., and Tendolkar, J., and then the respondents raised the contention that the proviso to section 10(2)(vii) under which the charge was made could not be taken into account in making the present assessment, as the same had been introduced by the Income tax (Amendment) Act, 1946 (VIII of 1946), which came into force on May 4, 1946, whereas the liability of the company to be taxed fell to be determined as on April 1, 1946, when the Finance Act, 1946, came into force. The appellant raised a preliminary objection to this question being raised for the first time before the court, on the ground that it did not arise out of the Order of the Tribunal, having been neither raised before it nor dealt with by it, and that further it had not been referred to the court. Overruling this objection, the learned Judges observed that the form in which the question was framed was sufficiently wide to take in the new contention, that even if the particular aspect of the question had not been argued before the Tribunal, it was implicit in the question as. framed, and that therefore the assessee could raise it. On the merits they held that as the proviso was not retrospective in its operation, the amount in question was not liable to be included in the taxable income and answered the question in the negative. It is against this decision that the present appeal by special leave is directed. The main contention urged before us by the appellant is that it was not open to the High Court in the present reference to go into the question as to the applicability of the proviso to section 10(2)(vii), as it was neither raised before the Tribunal nor considered by it, and could not therefore be said to be a question arising out of the order of the Tribunal, which alone could be 795 referred for the decision of the court under section 66(l). The court had no jurisdiction, it is argued, to allow a question to be raised before it, which could not be referred to it under the section. The contention of the respondents is that all questions of law which arise on the findings given by the Tribunal in its order can properly be said to arise out of its order, and that in making a reference under section 66(l), the Tribunal is not limited to those questions only which were raised before it and dealt with in its order, nor even to those questions which were raised in the application for reference under section 66(l). It is further contended that in the present case, the question as framed and refer red was wide enough to take in the contention as to the applicability of the proviso and that the High Court was in consequence within its power in entertaining it and deciding the reference on it. We may now refer to the provisions of law bearing on the question. Section 66(l) of the Act confers on the assessee and the Commissioner a right to apply to the Tribunal in the prescribed form to refer any question of law arising out of its order for the decision of the High Court. If the Tribunal is satisfied that a question of law arises, then it has to draw up a statement of the case, and refer it to the decision of the High Court. But if it considers that no question of law arises on its order, and dismisses the application under section 66(l), then the assessee or the Commissioner, as the case may be, has a right to move the court under section 66(2), and if the court is not satisfied about the correctness of the decision of the Tribunal, it can require it to state the case and refer it to its decision. Under section 66(4) the High Court can, for the purpose of disposing of the reference which comes to it under section 66(l) and (2), call for additional statement from the Tribunal. Under section 66(5) the High Court is to decide the question of law raised in the case and send a copy of its judgment to the Tribunal and the latter is to pass appropriate orders for giving effect to it. Section 59 of the Act confers on the Central Board of Revenue power to make rules for carrying out the purpose of the Act and under sub section (5), the rules 796 made thereunder shall on publication in the official gazette have effect as if enacted under the Act. Rule 22A framed under this section provides that: "An application under sub ,section (1) of section 66 requiring the Tribunal to refer to the High Court any question Of law shall be in the following form. " The form is R(T) of which paragraphs 3 to 5 are relevant for the present discussion, and they are as follows: "3. that the facts which are admitted and/or found by the Tribunal and which are necessary for drawing up a statement of the case, are stated in the enclosure for ready reference. 4. .that the following questions of law arise out of the order of the Tribunal: (3) 5. .that the applicant, therefore, requires under sub section (1) of section 66 of the aforesaid Act that a statement of the case be drawn up and the questions of law numbered out of the questions of law referred to in paragraph 4 above be referred to the High Court. " On these provisions, the question that arises for decision is whether in a reference under section 66, the High Court can consider a question which had not been raised before the Tribunal and/or dealt with by it in its order even though it be one of law. On the answer to be given to it there has been a difference of opinion among the High Courts and that turns on the meaning to be given to the words, "any question of law arising out of" the order of the Tribunal. There is no pronouncement of this Court which concludes this ques tion, though there are decisions which afford guidance in the determination thereof. These decisions will now be considered. In Commissioner of Income tax, Madras vs Mtt. Arunachalam Chettiar (1), an order of assessment made by the income tax officer was corrected by the Appellate Tribunal not in an appeal under section 33(4) but in a miscellaneous application presented to it under (1) (1953] S.C.R. 463 471. 797 section 35. The Commissioner being dissatisfied with the order applied for a reference under section 66(l). The Tribunal was of the opinion that the order in question could be made in the exercise of its inherent jurisdiction and referred the question of its legality to the court under section 66(l). The Madras High Court declined to answer it on the ground that as the order was not one passed in an appeal, the reference under section 66(l) was incompetent, as under that provision the power of the Tribunal to refer was limited to questions of law arising out of an order passed in an appeal. In affirm ing this decision, this Court observed: "The jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under section 33(4) and a question of law arising out of such an order." This is an authority for the position that the jurisdiction of the Tribunal to make, and of the High Court to hear, a reference must be strictly sought within the four corners of section 66. In The Commissioner of Income tax, Bombay South vs Messrs. Ogale, Glass Works Ltd. (1), the question referred by the Tribunal under section 66(l) was whether certain amounts received by the assessee from the Government by cheques drawn on the Reserve Batik at Bombay were income received in British India within section 4(l)(a) of the Act. The High Court had held that. as the cheques were received in the State of Aundh, in unconditional discharge of the claim, the receipt was not in British India. On appeal to this Court, it was contended that as the cheques were posted in British India, the income must be held to have been received in British India. An objection was put forward to this contention being raised, on the ground that it was not argued before the Tribunal or decided by it and that therefore it did not arise out of its order as required by section 66(l). But this Court hold that as the question as framed and referred was of sufficient amplitude to cover the new point urged, and as no contention was raised that the question had not (1). [1955] 1 S.C.R. 185, 197. 798 been properly referred under section 66(l), it could be decided under section 66(5), and that in that view, it was not necessary "to express any opinion on the larger question as to the scope, meaning and import of the words 'any question of law arising. out of ' the Tribunal 's order on the interpretation of which there exists a wide divergence of judicial opinion". There was accordingly no decision on the point now under consideration. In New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1) the point under discussion wag whether the High Court was competent under section 66(4) to call for additional statement with reference to a question which had not been referred to it under section 66(l) or section 66(2). This Court held that the scope of a reference under section 66(2) was coextensive with that of one under section 66(l) of the Act, that therefore the court had no power under section 66(2) to travel beyond the ambit of section 66(l), that under both these provisions it is only a question of law arising out of the order that could be referred, that the object of section 66(4) was to enable the court to obtain additional statements only for the purpose of deciding questions referred under section 66(l) and (2) and that accordingly no investigation could be ordered in respect of new questions which were not and could not be the subject matter of a reference under section 66(l) and (2). Here again there was no decision on the meaning of the words, "any question of law arising out of" the order of the Tribunal. In Kusumben D. Mahadevia vs Commissioner of Income tax (2), the question actually referred 'under section 66(l) to the court was whether a sum of Rs. 47,120 received by the assessee had accrued to her in the former State of Baroda or whether it had accrued or should be deemed to have accrued to her in British India. On this reference the High Court resettled the question so as to raise the contention as to whether the assessee was entitled to any concession under the Merged States (Taxation Concessions) Order, 1949, as regards the income of Rs. 47,120, and holding that she was not, answered the reference against her (1) ; (2) [196O] 3 S.C.R. 417. 422. 799 without deciding the question as to where the income accrued. Against this Judgment, the assessee appealed to this Court and contended that the High Court was in error in not deciding the question which was actually referred. This Court accepted this contention and remanded the case to the High Court for hearing on that point. So far this decision does not bear on the present controversy. But a further point was discussed and considered by this Court, and that was that it was not open to the court to raise the question about the applicability of the Merged States (Taxation Concessions) Order, 1949, as that was not a question which was raised before or considered by the Tribunal or referred under section 66(l). In agreeing with this contention, this Court observed: "Section 66 of the Income tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be one which was before the Tribunal and was decided by it." These observations bear on the question now under consideration but the actual decision was one remanding the case with a direction to the High Court to decide the question that was referred to it. In Zoraster & Co. vs Commissioner of Income tax (1), the assessees were manufacturers of certain kinds of goods in Jaipur. The Government of India purchased these articles and paid the price by cheques on the Bombay branch of the Reserve Bank of India. The Tribunal held that the profits of these sales had been received in British India, but on the application of the assessees referred that question to the court. The High Court remanded the case to the Tribunal under section 66(4) for a supplemental statement observing that (1) [1961] 1 S.C. It. 800 "it would be necessary for the Appellate Tribunal to find, inter alia, whether the cheques were sent to the assessee firm by post or by hand and what directions. , if any, had the assessee firm given to the Department in the matter. " The correctness of this order was challenged by the assessee on the ground that the court had no power to call for a fresh statement for the investigation of a new point and reliance was placed on the decision in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1). This Court held, following that decision, that the jurisdiction to call for supplemental statement was confined (a) to the facts on record and/or found by the Tribunal, and (b) to the question which would arise from the Tribunal 's order; and that further it could be exercised with reference to a new question, if it was an integral or even incidental part of the question which had been referred. This decision also proceeds on the view that a question which is unconnected with the question already referred cannot be agitated for the first time in the reference. There being thus no direct decision of this Court on the precise meaning of the words "any question of law arising out of" the order of the Tribunal, we must examine the decision of the High Courts on the question, and as already stated they are in a state of conflict. In A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (2), the application of the assessee under section 66(l) required the Tribunal to refer a question of res judicata to the court. The Tribunal declined to do so on the ground that question had not been argued before it. The assessee then moved the court under section 66(2) for an order requiring the Tribunal to refer that question. Dismissing that application, Patanjali Sastri, J., as be then was, observed as follows: " Mr. Radhakrishnayya for the petitioner contends that a question, though not raised before the Appellate Tribunal, can well be said to 'arise out of its order ', if, on the facts of the case appearing from the order, the question fairly arises. I am unable (1) ; (2) ,444. 801 to agree with that view. I am of opinion that a question of law can be said to arise out of an order of the Appellate Tribunal only if such order discloses that the question was raised before the Tribunal. " Adverting to the contention that the Privy Council had in M. E. Moola Sons Limited vs Burjorjee (1) allowed a question of law arising on the facts found, to be raised for the first time before it, the learned Judge observed: "The case furnishes no useful analogy as the scope of the remedy under section 66 of the Indian Income tax Act has to be determined with reference to the language of the statute". This decision was followed by the Madras High Court in Commissioner of Income tax vs Modern Theatres Ltd., (2) and in The Trustees, Nagore Durgah vs Commissioner of Incometax (3). In G. M. Chenna Basappa vs Commissioner of Income tax (4), the Andhra High Court followed the decision in A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (5) and observed that a question not raised before the Tribunal "cannot be said to arise out of its order even if it could be sustained on the facts in the statement of the case by the Tribunal", and that further the order of the Tribunal should disclose that the point of law was raised before it. The same view was adopted by the Patna High Court in Maharaj Kumar Kamal Singh vs Commissioner of Income (ax (6). There, discussing the question with reference to the language of section 66(1) and (2) and Rule 22A, the court observed as follows: "The provisions of Section 66(1) and Section 66(2) do not confer upon the High Court a general jurisdiction to correct or to decide a question of law that may possibly arise out of the income tax assessment. The section, on the contrary, confers a special and limited jurisdiction upon the High Court to decide any specific question of law which (1) Rang. (3) (5) , 444. (2) (4) (6) , 86. 802 has been raised between the assessee and the Department before the Income tax Tribunal and upon which question the parties are at issue. " It was accordingly held that only a question of law which had been actually raised before the Tribunal or actually dealt with by it could be referred under section 66(1). This is also the view consistently held by the Calcutta High Court, III Commissioner of Excess Profits Tax vs Jeewanlal Ltd. (1), it was held, agreeing with the decision in A. Abboy Chetty and CO. V. Commissioner of Income tax, Madras (2), that a question of law not raised before the Tribunal could not be said to arise out of its order even if on the facts of the case appearing from the order the question fairly arises. In Chainrup Sampatram vs Commissioner of Income, tax (3), the assessee had applied under section 66(1) of the Act to refer the question whether a sum of Rs. 2,20,887 was on a true construction of section 14(2)(c) of the Act assessable to tax. The Tribunal dismissed the application on the ground that the question sought to be raised had not been mentioned at the hearing of the appeal and had not been dealt with by the Tribunal and was therefore not one which arose out of its order. The question having been brought up before the court under section 66(2), Chakravartti, J. held that under section 66(1) it was only a question that arose out of the Tribunal 's order that could be referred, and that that must be some question which was actually raised before the Tribunal and dealt with by it; and that under section 66(2) the words, "no question of law arises" could only mean that the question of which reference had been asked for by the applicant did not arise,, and that the High Court could not require the Tribunal to refer some question which was not proposed before it. The learned Judge then went on to observe: "The Indian Income tax Act has not charged the High Court with the duty of setting right in all respects ill assessments that might come to its notice; its jurisdiction is not either appellate or revisional; (1) (2) ,444. (3) , 495. 803 nor has it a general power of superintendence under Section 66. Its sole duty is to serve as the appointed machinery for resolving any conflict which may arise between an assessee or the Commissioner on the one hand and the Tribunal on the other regarding some specific question or questions of law. If, on an application under section 66(2), the High Court finds that the question which the applicant required the Tribunal to refer was not a question that arose out of the Tribunal 's appellate order, it ought, in my view, to refuse to require the Tribunal to refer any such question. " The same view was taken in Allahabad Bank Ltd. vs Commissioner of Income tax (1) and in Commissioner of Income tax vs State Bank of India (2). In Mash Trading Co. vs Commissioner of Income tax (3), a Full Bench of the Punjab High Court had to consider the true character of the jurisdiction under section 66. Therein Kapur, J., as he then was, held, on an examination of the section and on a review of the authorities that under section 66(1) it is only questions which had been raised before and dealt with by the Tribunal that could be referred to the High, Court, that the power of the High Court under section 66(2) to direct a reference is limited to questions which could be referred under section 66(1) and which the applicant required it to refer, that the Tribunal has no power to raise a question suo motu, and likewise the High Court cannot raise any question which had not been referred to it either under section 66(1) or section 66(2), but when once a question is properly raised and referred to the High Court, the High Court is bound to answer that question. In this view, it was held that a reference to the High Court on a question which was not raised before or considered by the Tribunal was not compe tent. Falshaw, J., while generally agreeing with this view considered that there might be cases in which strict adherence to this view might work injustice, as for example when a point raised before the Tribunal had not been dealt with by it owing to mistake or (1) (2) (3) 804 inadvertence, or when its jurisdiction itself was ques tioned. The learned Judge added that in the former case the point might be deemed to have been decided against the assessee in the order, thereby attracting section 66. It should be noted that all the Judges agreed in holding that the reference in question was incompetent as the point had not been raised before the Tribunal. We must now consider the decisions which have taken a somewhat different view. Vadilal Lallubhai Mehta vs Commissioner of Income tax (1) was a case under section 66 of the Act, as it stood prior to the amendment of 1939 and what was held there was that even though the assessee had not stated in his application for reference the questions which really arose out of the order, it was for the Commissioner to formulate the correct questions and refer them to the court, and where he had failed to do so, the court could direct him to do so. This is not a decision on the question as to whether questions not raised before or decided by the Commissioner could be held to be questions arising out of his order. In New Piece goods Bazar Co. Ltd. V. Commissioner of Income tax (2), the question that was referred under section 66(1) was whether taxes paid on urban immovable property by the assessee were an allowable deduction under section 9(1)(iv) and section 9(1)(v) of the Indian Income tax Act. An objection was raised before the court that the question as to the application of section 9(1)(iv) had not been argued before the Tribunal and therefore it could not be referred. Repelling this contention, Kania, J., as he then was, observed that the specific question had been put forward as a ground of appeal, and that was "quoted by the Tribunal in its judgment" but not dealt with by it, and that in the circumstances the proper order to pass was to refer the case back to the Tribunal and "invite it to express ' its opinion on this aspect of the contention and raise a proper question of law on that point also." This judgment. again proceeds on the view that it is only a question raised before and dealt with by the Tribunal (1) (2) 805 that could be referred under section 66(1), and that is clear from the observations of the learned Judge that the decisions of the Privy Council in Commissioner of Income tax vs Kameshwar Singh(1) and National Mutual Life Association V. Commissioner of Income tax (2), deprecating the practice of raising new questions in the, stage of argument on the reference in the High Court did not stand in the way of the case being referred back to the Tribunal. In Madanlal Dharnidharka V. Commissioner of Income tax (3), the Tribunal referred under section 66(1) the following question for the decision of the court: "Whether the remittance of Rs. 2,01,000 out of profits, made by the assessee in the years preceding the Maru year 1999 2000 as a nonresident, could be included tinder section 4(1)(b)(iii) of the Indian Income tax Act in his total income of the year of account in which he was a resident in British India?" This question had not been argued before the Tribunal, but the Tribunal itself referred it because it considered that it arose out of its order. The reference was heard by Chagla, C. J. and Tendolkar, J. Before them an objection was raised that the Tribunal could not refer this question under section 66(1) as the same had not been raised before it. Chagla, C. J., observed: "In my opinion it is necessary clearly to re state the jurisdiction of this court. This is not a Court of appeal. This court merely exercises an advisory jurisdiction. Its judgments are in the nature of advice given on the questions submitted to it by the Tribunal. Its advice must be confined to questions referred by the Tribunal to this court and those questions must be questions of law which must arise out of the order made by the Tribunal. Now, looking at the plain language of the section apart from any authority, I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the (1) (2) (3) , 233, 234. 806 Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. The section does not say so and there is no reason why we should construe the expression 'arising out of such order ' in a manner unwarranted by the ordinary grammatical construction of that expression. This court has no jurisdiction to decide ques tions which have not been referred by the Tribunal. If the Tribunal does not refer a question of law under section 66(1) which arises out of the order then the only jurisdiction of the court is to require the Tribunal to refer the same Under section 66(2). It is true that the court has jurisdiction to resettle questions of law so as to bring out the real issue between the parties but it is not open to the court to raise new questions which have not been referred to it by the Tribunal. " Expressing next his disagreement with the decision of the Madras High Court in A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (1), the learned Judge observed: "The decision of the Madras High Court would also result in this extraordinary situation. An assessee may raise a question and argue it before the Tribunal, but if the Tribunal thought fit to ignore that argument and not to refer to that point of law in its order, then the court would have no jurisdiction to call upon the Tribunal to refer that question of law to the High Court. It is true that the Income tax Act is a very technical statute, but I see no reason why when the plain grammatical construction of the section does not make it necessary to come to that conclusion it is necessary to do so and arrive at such an anomalous result. " In Mohanlal Hiralal vs Commissioner of Income tax (2) a Bench of the Nagpur High Court, hearing a reference under section 66(1), held that on the statement of the case by the Tribunal, the question of law as framed was not correct. Then observing that in view (1) (2) , 452 453. 807 of the decision of the Privy Council in Commissioner of Income tax vs Kameshwar Singh (1), it could not itself resettle it, called for a fresh statement from the Tribunal under section 66(4). Thus far the judgment is on the same lines as New Piecegoods Bazar Co. Ltd. vs Commissioner of Income tax (2) and an earlier decision of the Nagpur High Court in Beohar Singh vs Commissioner of Income tax (3). When the case came back on the further statement under section 66(4), criticising certain remarks therein, that the court had no power to direct the Tribunal to refer a question not argued before it, the Court observed that they were made under a misconception, and quoted the observations of Chagla C.J., in Madanlal Dharnidharka vs Commissioner of Income tax (4) extracted above, with approval. This can hardly be said to be a decision on the present point. It will be seen from the foregoing review of the decisions that all the High Courts are agreed that section 66 creates a special jurisdiction, that the power of the Tribunal to make a reference and the right of the litigant to require it, must be sought within the four corners of section 66(1), that the jurisdiction of the High Court to hear references is limited to questions which are properly referred to it under section 66(1), and that such jurisdiction is purely advisory and extends only to deciding questions referred to it. The narrow ground over which the High Courts differ is as regards the question whether it is competent to the Tribunal to refer, or the High Court to decide, a question of law which was not either raised before the Tribunal or decided by it, where it arises 'on the facts found by it. On this question, two divergent views have been expressed. One is that the words, "any question of law arising out of" the order of the Tribunal signify that the question must have been raised before the Tribunal and considered by it, and the other is that all questions of law arising out of the facts found would be questions of law arising out of the order of the Tribunal. The 1latter is the view (1) (3) (2) (4) , 233. 234. 808 taken by the Bombay High Court in Madanlal Dharnidharka vs Commissioner of Income tax(1), and approved by the Nagpur High Court in Mohanlal Hiralal vs Commissioner of Income tax (2). The former is the view held by all the other High Courts. Now the argument in support of the latter view is that on the plain grammatical construction of section 66(1), any question of law that could be raised on the findings of fact given by the Tribunal, would be questions that arise out of the order, and that, to hold that they meant that the question must have been raised before the Tribunal and decided by it, would be to read into the section words which are not there. In support of this contention Shri Viswanatha Sastri, learned Counsel for the respondents, argued that it was a fundamental principle of jurisprudence that the duty of the litigants was only to state the facts and that it was for the court to apply the appropriate law to the facts found, arid he relied on the observations of Atkin, L. J., in Attorney General vs Avelino Aramavo & Co.(1), that the court was not limited to particular questions raised by the Commissioners in the form of questions on the case, and that if the point of law or the erroneous nature of the determination of the point of law was apparent on the case as stated and there were no further facts to be found, the court could give effect to it. , He also maintained that the position under the Indian law was the same as under the British statute, because under section 66(1) of the Act, the Tribunal has to refer not only questions of law arising out of its order, but also a statement of the case, that under section 66(2) the court can likewise require the Tribunal to state the case and refer it and that under section 66(5) the court has to decide the question of law raised by the case. We are unable to agree with this contention. Under the British statute when once a decision is given by the Commissioners, it is sufficient that the assessee should express his dissatisfaction with it and ask that the matter be referred to the decision of the High Court. (1) [1948]16 I.T.R. 227. (2) (3) 809 It is then for the Commissioners to draw up a statement of the case and refer it for the decision of the court. The British statute does not cast, as does section 66(1) of the Act, a duty on the assessee to put in an application stating the questions of law which he desires the Commissioners to refer to the court and requiring them to refer the questions which arise out of that order. In Commissioner of Income tax, Madras vs Mtt. section Ar. Arunachalam Chettiar (1), this Court has decided that the requirements of section 66(1) are matters affecting the jurisdiction to make a reference under that section. The attempt of the respondents to equate the position under section 66(1) of the Act with that under the British statute on the ground that the Tribunal has to draw up a statement of the case and refer it, and that the court is to decide questions of law raised by it, must break down when the real purpose of a statement in a reference is kept in view. A statement of case is in the nature of a pleading, where in all the facts found are set out. There is nothing in it which calls for a decision by the court. It is the question of law referred under section 66(1) that calls for decision under section 66(5) and it is that that constitutes the pivotal point on which the jurisdiction of the court hinges. The statement of the case is material only as furnishing the facts for the purpose of enabling the court to decide the question referred. It has been repeatedly laid down by the Privy Council that the Indian Act is not in pari materia with the British statute and that it will not be safe to construe it in the light of English decisions, vide Commissioner of Income tax vs Shaw Wallace & Co. (2). In view of the difference between section 66(1) and the corresponding provision in the British statute, we consider that no useful purpose will be served by referring to the English decisions for interpreting section 66. But the main contention still remains that the language of section 66(1) is wide enough to admit of questions of law which arise on the facts found by the Tribunal and that there is no justification for cutting (1) ; , 471. (2) (1932) L.R. 59 I. A. 206.102 810 down its amplitude by importing in effect words into it which are not there. There is considerable force in this argument. But then there are certain features, which distinguish the jurisdiction under section 66, and they have to be taken into consideration in ascertaining the true import of the words, "any question of law arising out of such order. " The jurisdiction of a court in a reference under section 66 is a special one, different from its ordinary jurisdiction as a civil court. The High Court, hearing a reference under that section, does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acts purely in an advisory capacity, on a reference which properly comes before it under section 66(1) and (2). It gives the Tribunals advice, but ultimately it is for them to give effect to that advice. It is of the essence of such a jurisdiction that the court can decide only questions which are referred to it and not any other question. That has been decided by this Court in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax(2); Kusumben D. Mahadevia vs Commissioner of Income tax(2) and Zoraster & Co. vs Commissioner of Income tax (3). If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of the court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought? It was argued for the respondents, that, in view of the fact that the court could compel the Tribunal to refer a question of law under section 66(2) for its decision, not much significance could be attached to the advisory character of its jurisdiction. It is not conceivable, it was said, that any authority should have a right to compel another authority to take its advice. We see no force in this contention. Section 66(2) (1) ; (2) ; (3) ; 811 confers on the court a power to direct a reference only where the Tribunal was under a duty to refer under section 66(1), and it is, therefore, subject to the same limitations as section 66(1). That has been held by this court in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1) and in Zoraster & Co. vs Commissioner of Income tax (2). Moreover, the power of the court to issue direction to the Tribunal under section 66(2) is, as has often been pointed out, in the nature of a mandamus and it is well settled that no mandamus will be issued unless the applicant had made a distinct demand on the appropriate authorities for the very reliefs which he seeks to enforce by mandamus and that had been refused. Thus, the power of the court to direct a reference under section 66(2) is subject to two limitations the question must be one which the Tribunal was bound to refer under section 66(1) and the applicant must have required the Tribunal to refer it. R(T) is the form prescribed under Rule 22A for an application under section 66(1), and that shows that the applicant must set out the questions which he desires the Tribunal to refer and that further, those questions must arise out of the order of the Tribunal. It is, therefore, clear that under section 66(2), the court cannot direct the Tribunal to refer a question unless it is one which arises out of the order of the Tribunal and was specified by the applicant in his application under section 66(1). Now,, if we are to hold that the court can allow a new question to be raised on the reference, that would in effect give the applicant a right which is denied to him under section 66(1) and (2), and enlarge the jurisdiction of the court so as to assimilate it to that of an ordinary civil court of appeal. It is again to be noted that, whereas section 6P(1), as it stood prior to the amendment of 1939, conferred on the Commissioner a power to refer a question of law to the court suo motu, that power has been taken away under the present section and it has accordingly been held that under section 66(1), as it now stands, there is no power in the Tribunal to refer a question of law suo motu for the decision of the court. If, as contended (1) ; (2) ; 812 for by the respondents, the court is to be held to have power to entertain in a reference, any question of law, which arises on the facts found by the Tribunal, its jurisdiction under section 66(5) must be held to be wider than under section 66(1) and (2). The correct view to take, in our opinion, is that the right of the litigant to ask for a reference, the power of the Tribunal to make one, and the jurisdiction of the court to decide it are all co extensive and, therefore, a question of law which the applicant cannot require the Tribunal to refer and one which the Tribunal is not competent to refer to the court, cannot be entertained by the court under section 66(5). In view of the above considerations, we are unable to construe the words, "any question of law arising out of such order," as meaning any question of law arising out of the findings in the order of the Tribunal. One of the reasons given by Chagla, C. J., in Madanlal Dharnidharka vs Commissioner of Income tax(1) for differing from the decision in A. Abboy Chetty and Go. vs Commissioner of Income tax, Madras (2) that it is only a question which was raised before the Tribunal that could be said to arise out of its order was that that view must result in great injustice in a case in which the applicant had raised a question before the Tribunal but it had failed to deal with it owing to mistake or inadvertence. In such a, case, it was said, the applicant would be deprived, for no fault of his, of a valuable right which the legislature had intended to give him. But we see no difficulty in holding that in those cases the Tribunal must be deemed to have decided the question against the appellant, as Falshaw, J. was disposed to do in Mash Trading Co. vs Commissioner of Income tax (3). This is only an application of the principle well known to law that a relief asked for and not granted should be deemed to have been refused. It is on this footing that Kania, J. held in New Piecegoods Bazar Co. Ltd. vs Commissioner of Income tax (4) that, in the circumstances stated above, the court could call upon (1) , 233, 234. (3) (2) (4) 813 the Tribunal to state a supplemental case after giving its own decision on the contention. That was also the procedure adopted in Mohanlal Hiralal vs Commissioner of Income tax(1). Such cases must be exceptional and cannot be founded on for putting a construction different from what the language of section 66(1) would otherwise warrant. There was also some argument as to the position under section 66(1) when the Tribunal decides an appeal on a question of law not raised before it. That would undoubtedly be a question arising out of the order, and not the less so because it Was not argued before it, and this conclusion does not militate against the construction which we have put on the language of section 66(1). The result of the above discussion may thus be summed up: (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is therefore one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it. , it will not be, a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order. In this view, we have next to consider whether the question which was raised before the High Court was one which arose out of the order of the Tribunal, as interpreted above. Now the only question on which the parties were at issue before the income tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of (1) 814 account 1945 46. That having been decided against the respondents, the Tribunal referred on their application under section 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income for the assessment year 194647, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income tax authorities the respondents disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to section 10(2)(vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act. That was the view taken by this Court in The Commissioner of Income tax, Bombay vs Messrs. Ogale Glass Works Ltd. (1) and in Zoraster & Co. vs Commissioner of Income tax (2), and we agree with it. As the question on which the parties were at issue, which was referred (1) (2) ; 815 to the court under section 66(1), and decided by it under s.66(5) is whether the sum of Rs. 9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it. It is argued for the appellant that this view would have the effect of doing away with limitations which the legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question as referred. In the present case, the question actually referred was whether the assessment in respect of Rs. 9,26,532 was proper. Though the point argued before the Income tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve re framing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference 816 shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C.J., in the question which was referred, and, therefore, it was one which the court had to answer. On the merits, the appellant had very little to say. He sought to contend that the proviso though it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs. 9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under section 66(1), it must be disallowed. In the result, this appeal is dismissed with costs. SHAH, J. The Income tax Appellate Tribunal, Bombay Bench "A" referred the following question to the High Court of Judicature at Bombay under section 66(1) of the Indian Income tax Act: "Whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assessment year 1946 47. " The question comprehends two component parts, (1) whether the amount of Rs. 9,26,532 was properly included in the assessee 's income, and (2) whether the amount was properly included in the taxable income of the assessees for the assessment year 1946 47. The amount sought to be taxed was part of compensation received by the assessees from the Government of India for loss in 1944 by enemy action of their ship "El Madina." The assessees maintained before the 817 taxing authorities and the Tribunal that the compensation accrued to them on April 16, 1944. This plea was rejected, but rejection of that plea was not sufficient to make the amount taxable. it had still to be decided whether the amount which was received in the months of July and December, 1944, war, taxable as income. It is common ground that before the amendment by Act 8 of 1946 of section 10, sub section (2), cl. (7), by the inclusion of the fourth proviso, compensation received for loss of a capital asset like a ship was not taxable as income under the Indian Income tax Act. The tribunal observed that the compensation accrued when it was ascertained and was received by the assessees in the year of account and the amount, was therefore rightly brought to tax in the year of assessment 1946 47. Manifestly, the tribunal its attention to the statutory provision on the application of which the exigibility of the tax depended. But proviso IV to section 10, sub section (2), cl. (7) came into force on May 4, 1946. It was not in force on April 1, 1946, the day on which the liability to pay tax for the year of assessment 1946 47 crystallized. The tribunal erroneously assumed that the amending Act was in force at the date of commencement of the year of assessment and the assessees did not attempt to remove that misapprehension. But the question whether the amount sought to be taxed was properly included did arise out of the order of the tribunal, the tribunal having held that the amount of compensation was taxable by virtue of section 10, sub section (2), cl. (7), proviso IV. The question whether the statutory pro vision relied upon to tax the assessees was applicable to the amount sought to be assessed as income was as much a question arising out of the order of the tribunal as the question whether the interpretation placed by the tribunal upon that proviso was correct, may be. The assessees had maintained that they were not liable to be taxed under section 10, sub section (2), el. (7), proviso IV because the amount sought to be taxed was received before the year of account relevant for the 103 818 assessment year 1946 47. The tribunal held, negativing the contention, that it was taxable under section 10, sub section (2), el. (7), proviso IV. A question of law whether the amount was properly included in the taxable income for the year of assessment clearly arose and that question was referred by the tribunal to the High Court. The High Court under section 66, cl. (5) of the Income tax Act has to record its opinion on the questions arising out of the order of the tribunal and not on the arguments pro and con advanced before the tribunal. In my view, the High Court had jurisdiction on the question arising out of the order of the tribunal and referred, in deciding that the Act which made the amount taxable was not in operation at the material date. This would be sufficient to dispose of the appeal but counsel for the revenue submits that as it was never urged before the tribunal by the assessees that the amending Act 8 of 1946 which made the compensation received by the assessees, taxable as income, was brought into operation after the commencement of the year of assessment 1946 47, and the tribunal never directed its attention to that plea, it had no jurisdiction to refer that question to the High Court arid the High Court was not competent to answer that question even if on the facts found the question clearly arose out of the order of the tribunal. Counsel urges that the question arising out of the order of the tribunal is only that specific question which has been raise(] and argued before the tribunal and on which the tribunal has given its decision. We have heard elaborate arguments on the true meaning of the expression "any question of law arising out of such order" and the nature of the jurisdiction exercised by the High Court under section 66 of the Income tax Act. There is wide divergence of opinion oil the true import of this clause. Before I refer to the authorities, it would be useful to set out the scheme of the Income tax Act relating to reference of questions to the High Court under section 66, and the nature of the jurisdiction which the High Court exercises. 819 "(1) Within sixty days of the date upon which he is served with notice of an order under sub section (4) of section 33 the assessee or the Commissioner may, by application in the prescribed form require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall draw up a statement of the case and refer it to the High Court: Provided. . (2) If on any application being made under sub section (1)the Appellate Tribunal refuses to state a case on the ground that no question of law arises, the assessee or the Commissioner as the case may be, may apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state a case and to refer it,, and on receipt of any such requisition the Appellate Tribunal shall state the ease and refer it accordingly. (3). . . (4) If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the court may refer the case back to the Appellate Tribunal to make such additions thereto or alterations therein as the court may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the ground, on which such. decision is founded and shall send a copy of such judgment. to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such Judgment. (6) (7) (7A) (8). . . . Under the scheme of the Indian Income tax Act, the appellate tribunal is the sole judge of facts. The High Court indisputably exercises a special advisory 820 jurisdiction to record its opinion on questions submitted, by the tribunal; it does not act as a court of appeal or revision on questions of law or fact. After the disposal of the appeal by the tribunal under section 33(4) of the Income tax Act, the revenue or the tax payer may call upon the tribunal to state a case on the questions of law arising out of the order. If the tribunal refuses to state a case, the party aggrieved may move the High Court to call upon the tribunal to state a case and the High Court may so direct if it is not satisfied as to the correctness of the decision of the tribunal refusing to state a case. The question must be one of law and not, of fact and not merely academic; it must be a concrete problem bearing directly on the rights and obligations of the revenue or of the assessees. The power of the High Court is to require the tribunal to state a case only if it is satisfied that the view of the tribunal (not on the merits of the order under section 33, el. (4)) but on the application under section 66(1) is erroneous. If the tribunal is not called upon to refer a question, the High Court cannot arrogate to itself the power to call upon the tribunal to refer questions which arise out of the findings recorded by the tribunal but which the tribunal was not called upon to refer. But there is in my judgment no warrant for the view that the question which the tribunal may refer or which the High Court on the refusal of the tribunal may call upon the tribunal to refer, must be a question which was raised and argued before the tribunal at the hearing under section 33(4). The statute does not specifically impose such a restriction nor is it implied. To import in the meaning of the expression "any question of law arising out of such order" the concept that the question must have been argued before and dealt with by the tribunal in its judgment deciding the appeal, is to impose a fetter upon the jurisdiction of the High Court not warranted by the plain intendment of the statute. The source of the question must be the order of the tribunal; but of the question it is not predicated that the tribunal must have been asked to decide it at the hearing of the appeal. It may very well happen and frequently 821 cases arise in which the question of law arises for the first time out of the order of the tribunal. The tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found. These are only illustrative cases: analogous cases may easily be multiplied. It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the tribunal and to refuse to take cognisance of questions which arise out of the order of the tribunal, but which were not argued, because they could not (in the absence of any indication as to what the tribunal was going to decide) be argued. A concrete question of law having a direct bearing on the rights and obligations of the parties which may be founded on the decision of the tribunal is one which in my judgment arises out of the order of the tribunal even if it is not raised or argued before the tribunal at the hearing of the appeal. It is the duty of the tribunal to draw up a statement of the case and to frame questions; that duty can only be performed adequately if specific questions relating directly to the dispute between the parties are raised. If the import of the question is unduly large, the High Court has, and is indeed bound in dealing with it to restrict it to its true content in the light of the findings recorded by the tribunal. But in dealing with the question, the High Court may not only entertain those aspects of the case which were argued before the tribunal, but all such aspects as have fairly a direct bearing on the dispute. The jurisdiction of the High Court is by statute not expressly circumscribed to recording its opinion on arguments advanced before the tribunal, and the nature of the jurisdiction exercised by the High Court does not demand that such a limitation should be implied. The court has jurisdiction to decide questions which arise out of the order of the tribunal, not merely those which were raised and argued before the tribunal. 822 On the meaning of the expression "question of law arising out of such order," judicial opinion in the High Courts is divided, and this court has not expressed any authoritative opinion thereon. No useful purpose will be served by entering upon an analysis of the decisions of ' the High Courts and there are many on this question. The decisions fall into two broad divisions. On the one hand it is ruled that "a question of law can be said to arise out of an order of the Appellate Tribunal within the meaning of section 66(1) of the Indian Income tax Act, only if such order discloses that the question was raised before the tribunal. A question not raised before the tribunal cannot be said to arise out of its order even if on the facts of the case appearing from the; order the question fairly arises. " The leading cases in support of this view are A. Abboy Chetty & Co. vs Commissioner of Income tax, Madras (1) and The Commissioner of Excess Profits Tax, West Bengal vs Jeewanlal Ltd., Calcutta (2). This view has been adopted with some variations in the norms of expression in the following cases: Maharaj Kumar Kamal Singh vs Commissioner of Income tax (3), G. M. Chenna Basappa vs Commissioner of Income tax, Hyderabad (4) and Punjab Distilling Industries Ltd. Commissioner of Income tax, Punjab (5). On the other hand is the view expressed by Chagla, C. J. in Madanlal Dharnidharka vs Commissioner of Income tax (6) where the learned Chief Justice recorded his conclusion as follows: "I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this Court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. he section does not say so and there is no reason why we should construe the expression arising out of such order ' in a manner unwarranted by the (1) (3) (5) (2) (4) (6) 823 ordinary grammatical construction of that expression. " For the reasons already set out, in my view, the interpretation placed by Chagla, C. J. on the expression "arising out of such order" is the correct one. Appeal dismissed.

By section 66 (1) of the Indian Income tax Act, 1922 "the assessee or the Commissioner may, by application in the prescribed form . require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall . draw up a statement of the case and refer it to 789 the High Court. " The respondents, who received compensation from the Government as owners of a requisitioned steamship lost in enemy action, were assessed to tax under the fourth proviso to section 1O(2)(Vii) of the Indian Income tax Act, which was inserted into the Act by the Income tax (Amendment) Act, 1946 (VIII Of 1946) that came into force on May 4, 1946. Before the Tax Authorities the respondents sought to resist the liability on the ground that the income was received not in the year of account but in the previous year but failed. No question as to the applicability of the said proviso was either raised before the Tribunal or dealt with by it. The question that was referred to the High Court was as follows: "Whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assess ment year 1946 47." In the High Court the respondents contended that the said proviso had no application. The appellant took a preliminary objection to this contention being raised on the ground that it was not raised and argued before the Tribunal but the High Court overruled the objection and held that the compensation amount was not liable to charge as the proviso in question was not in force on the material date. Against this decision the Commissioner of Income tax appealed. The point for determination in the appeal was whether the High Court in answering a reference under section 66 could decide a question not raised or argued before the Tribunal. Held (per Das, Kapur, Hidayatullah and Venkatarama Aiyar, jj.), that the jurisdiction of the High Court under section 66 of the Indian Income tax Act is purely advisory and therefore different from its ordinary jurisdiction as a Civil Court. It is of the essence of such a jurisdiction that the High Court can decide only such questions as are referred to it and that implies that the questions must necessarily be those that the Tribunal had occasion to consider. The words "any question of law arising out of such order" in section 66(1) of the Indian Income tax Act, 1922, do not in the context mean any question of law arising out of the findings in the order of the Tribunal but only such questions as were raised before, or decided by the Tribunal. The Indian Income tax Act, I 922, is not in Pari materia with the British Statute and in view of the difference between section 66(i) and the corresponding provisions of the British Statute no useful purpose can be served by referring to English decisions for interpreting section 66 of the Indian Act. Commissioner of Income tax vs Shaw Wallace & Co., (1932) L.R. 59 I.A. 2o6, referred to. Attorney General vs Avelino Armavo & Co., , considered. 790 The power the High Court has under s: 66(2) Of the Act to direct a reference can make no difference since such power is subject to the same limitations as that of the Tribunal under section 66(i) of the Act. Commissioner of Income tax, Madras vs Mtt. section Ar. Arunachalam Chettiar, (1953] S.C.R. 463, New jehangir Vakil Mills Ltd. vs Commissioner of Income tax, [1960] 1 S.C.R. 249, Kusumben D. Mahadevia vs Commissioner of Income tax, and Zoraster & Co. vs Commissioner of Income tax, ; , referred to. Madanlal Dharnidharka vs Commissioner of Income tax, , disapproved. Case law reviewed. The jurisdiction of the High Court in deciding a reference under section 66(5) is co extensive with the right of the litigant to ask for a reference and the power of the court to make one. Therefore the High Court has jurisdiction in a reference to decide questions of law arising out of the order of the Tribunal, that is question of law raised and decided by the Tribunal, or question of law raised before the Tribunal but not decided by it or question of law decided by Tribunal, though not raised before it, but not questions not raised or decided by the Tribunal even though it may arise from its findings. A question of law may have more than one aspect and section 66(1) of the Act does not contemplate that each aspect of a question is by itself a distinct question. It only requires that the question of law which is referred to the Court must have been in issue before the Tribunal. It does not further require that the reference should be limited to those aspects of the question which had been argued before the Tribunal. The Commissioner of Income tax, Bombay South vs M/s. Ogale Glass Works Ltd. [1955] I S.C.R. 185 and Zoraster & Co. vs Commissioner of Income tax; , , approved. In the instant case, the question referred to the High Court was wide enough to cover the contention raised by the respondent and the High Court was right in holding that the fourth proviso to section 10(2)(Vii) Of the Act, not being retrospective in operation, bad no application. Per Shah, J. Section 66 of the does not contemplate that the question which tire Tribunal may refer, or which the High Court may call upon the Tribunal to refer, must be one that is raised and argued before the Tribunal at the hearing under section 33(4) Of the Act. The section does riot specifically impose such a restriction nor is it implied. To import into the expression "any question of law arising out of such order" any limitation that the question must either have been argued before the Tribunal or dealt with by it, would be not only to impose fetters upon the jurisdiction of the High 791 Court which were plainly not intended by the statute and in certain cases might involve gross injustice to the parties. Madanlal Dharnidharka vs Commissioner Of Income tax, , approved. Under section 66(5) Of the Act, the court has to record its opinion on the questions arising out of the order of the Tribunal and not on the arguments advanced before it. In the instant case the High Court, on the question arising out of the order of the Tribunal and referred to it, had jurisdiction to decide that the proviso which made the amount taxable was not in operation at the material date.

Civil Appeal No. 571 of 1972. Appeal by Special Leave from the Judgment and order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70. P. P. Rao and G. Chandra for the Appellant. P. C. Bhartari and J. B. Dadachanji for the Respondent. The Judgment of the Court was delivered by BEG, J. The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Veeraswami, C.J., and Raghavan, J., had held, in a very short judgment, a notification of the Railway Department, retiring the petitioner respondent from service with effect from 3rd October, 1970, to be inoperative. The petitioner respondent had been appointed a temporary Clerk on 10th December, 1936, and had been confirmed in that post on 1st 1086 September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046(b) of the Railway Establishment Code. According to Rule 2046(b), a Ministerial Railway Servant was entitled to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e. on 31st March, 1938), either: (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption until he was confirmed in that post". It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the bene fit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date", that is to say, on 31st March, 1938. The specified requirements of the rule could not be over ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938. The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Government servant" and not a "provisional Government servant" as defined by Rule 2008(2). Rule 2008 may be reproduced here. It reads: "2008 Suspension of lien: (a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity: (1) to a tenure post or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule. 1087 (b) A competent authority may, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years. (c) Notwithstanding anything contained in Clause (a) and (b) of this Rule a railway servant 's lien on a tenure post may, on circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated. (d) If a railway servant 's lien on a post is suspended under clause (a) or (b) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives. NOTE: This clause applies if the post concerned is a post in a selection grade of a cadre". The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938. The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned Counsel for the appellant, therefore, relied on: State of Punjab vs Dharam Singh State of Nagaland vs G. Vasantha Director of Panchayat Raj & Anr. vs Babu Singh Gaur. Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court. Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision. We allow this appeal and set aside the judgment and order of the High Court. The parties will bear their own costs. S.R. Appeal allowed.

Under Rule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled to the higher age of retirement at 60 years (i) if he had entered service on or before 31st March 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post. The respondent had been appointed a temporary clerk on 10th December 1936 and was confirmed in that post on 1st September 1938. When he was retired on attaining the age of 58, he challenged the orders claiming benefit of Rule 2046(b). The High Court allowed the writ petition holding that since he was confirmed on 1st September 1938 he would be deemed to have been permanently appointed since 10th December 1936. Allowing the appeal by special leave the court, ^ HELD: (1) Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date" i.e. 31st March 1938. The specified requirement of the rule could not be overridden by some deemed retrospective benefit alleged to accrue from a confirmation subsequent to 31st March 1938. [1086D E] State of Punjab vs Dharam Singh ; ; State of Nagaland vs G. Vasantha A.I.R. 1970 SC 537: Director of Panchayat Raj & Anr. vs Babu Singh Gaur ; , (followed) [His Lordship observed that the position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision]

Criminal Appeal No. 114 of 1988. From the Judgment and Order dated 11.8.1987 of the Bombay High Court in Criminal Writ Petition No. 733 of 1987. Dr. Y.S. Chitale, Shambhu Prasad Singh, Mrs. Jayshree Wad, Mrs. Aruna Mathur, Manoj Wad and Vijay Tulpule for the Appellant. A.S. Bobde, Advocate General for the State of Maharashtra, A.M. Khanwilkar and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by SEN, J. This appeal by special leave directed against the judgment and order of a Division Bench of the Bombay High Court dated August 11, 1987 raises a question of far reaching importance. The question is whether a Commission of Inquiry constituted under section 3 of the (hereinafter referred to as the 'Act ') is a "Court" for purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973. We had the benefit of hearing Dr. Y.S. Chitale, learned counsel appearing on behalf of the appellant Dr. Baliram Waman Hiray, who at one time was the Health Minister of Maharashtra, and Shri A.S. Bodbe, learned counsel appearing on behalf of the State Government, as to the purport and effect of the inclusive of sub section (3) of section 195 of the Code which provides that in cl. (b) of sub s.(1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. In Lalji Haridas vs The State of Maharashtra & Anr., ; , a Constitution Bench of this Court by a majority of 3:2 held that the proceedings before an Income tax Officer under section 37(4) of the Indian Income tax Act, 1922 were judicial proceedings under section 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of section 195(1)(b) of the Code. We thought that the controversy had been set at rest by the decision of the Constitution Bench in Lalji Haridas ' case. Dr. Chitale, learned counsel however contends that there is a change in the law because of the introduction of sub section (3) of section 195 of the Code and points out that Parliament has brought about the change to implement the 41st Report of the Law Commission and relies PG NO 946 on paras 15.90, 15.93, 15.94 and 15.99. In the course of his submissions, he has brought to our notice the words in parenthesis added by the Finance Act, 1985 introducing the following change in section 136 of the Income tax Act, 1961 w.e.f. April 1, 1974 from which the Code of Criminal Procedure, 1973 came into force. section 28 of the Finance Act amended section 136 of the Income tax Act, and it was provided that the words "and every income tax authority shall be deemed to be a Civil Court for the purposes of section 195 but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973", shall be inserted and shall be deemed to have been inserted at the end w.e.f. 1st day of April, 1974. Dr. Chitale 's contention is that unless there was a similar change brought about in the Commissions of Inquiries Act, the Commission cannot be deemed to be a Court for the purposes of section 195 (1)(b) of the Code. We find great difficulty in dealing with the question involved in this appeal because many diverse problems will have to be considered. In order to appreciate the point involved, it is necessary to state a few facts. The State Government of Maharashtra by a notification dated February 21, 1986, issued under section 3 read with section 5(1) of the appointed Shri Justice B. Lentin, Judge of the High Court of Bombay as a one man Commission of Inquiry to probe into the deaths of 14 patients in the government run Jamsetjee Jee Bhoi Hospital, Bombay between January 22, 1986 and February 7, 1986 after they were administered contaminated glycerol. The aforesaid notification of the State Government was to the effect: "MEDICAL EDUCATION AND DRUGS DEPARTMENT Mantralaya, Bombay 400 032. dated 21st February, 1986. No. JJH. 2088/712/MED 4 Whereas certain deaths of patients alleged to be due to drug reaction, occurred in Neuro Surgery, Neurology, Opthalmology and Nephrology Departments of J.J. Hospital, Bombay, during January February 1986: And whereas the Government of Maharashtra is of the opinion that it is necessary to appoint a Commission of Inquiry under the (60 of PG NO 947 1952) for the purpose of making an inquiry into the causes and the circumstances leading to the aforesaid incidents of death at J.J. Hospital, Bombay, being definite matters of public importance and for making a report thereon to the State Government: Now, therefore, in exercise of the powers conferred by section 3 and sub section (1) of section 5 of the said Act and of all other powers enabling it in this behalf, the Government of Maharashtra hereby appoints a Commission of Inquiry consisting of Shri Justice B. Lentin, Judge of the High Court of Judicature at Bombay, to inquire into and report on the causes and circumstances leading to the occurrence of the said deaths in Neuro Surgery, Neurology, Opthalmology and Nephrology Departments of J.J. Hospital, Bombay, during January February 1986; and particularly *** *** *** xxx xxx xxx The Government of Maharashtra hereby directs that having regard to the nature of inquiry to be made by the Commission and other sub section (4) and sub section (5) of section 5 of the said Act shall apply to the said Commission. The Commission shall submit its report to State Government within a period of 3 months from the date of publication of this Notification in the Official Gazette. By order and in the name of the Governor of Maharashtra. J.P. BUDHAVANT Deputy Secretary to Government" By the terms of reference, the Commission was required inter alia to enquire into and report on the causes and circumstances leading to the occurrence of the unfortunate deaths and to fix the responsibility of the persons and officers responsible for the purchase and supply of sub standard drugs on the basis of the mounting evidence gathered by Lentin Commission. There emerged a corrupt and venal nexus between the drug firms engaged in manufacturing and supply of sub standard and adulterated drugs and the PG NO 948 delinquent Food & Drugs Administration and Hospital staff on the one hand and the appellant and Bhai Sawant, two former Health Ministers and certain Government officials on the other. In the course of its investigation, it discovered that there were as many as 582 grossly defaulting drug companies whose products, including the crucial life saving drugs, were sub standard. The Commission 's report was an indictment of the State 's public health system and constant ministerial interference. It was particularly severe on the machinations of Bhai Sawant, the then Health Minister who, the Commission observed, had a hairbreadth escape from being served with a notice to show cause why he should not be prosecuted for perjury under sections l93 and 228 of the Indian Penal Code, 1860. The Court issued show cause notices on four persons including the appellant Dr. Baliram Waman Hiray for giving false evidence in an attempt to cover up the charges of rampant corruption brought against them. The State Government placed the report of the Lentin Commission before the State Legislature on March 30, 1988 and accepted its recommendations. One of the recommendations was that a separate enquiry be held by a retired High Court Judge into the charges of corruption against the appellant Dr. Baliram Waman Hiray and Bhai Sawant, the two former Health Ministers and in particular of the misfeasance and malfeasance on the part of one Dr. S.M. Dolas who was the Food & Drugs controller of the State who had an unprecedented long time for as many as 15 years and other delinquent officers of the concerned departments holding them responsible for the deaths. The report indicted both the Health Ministers in no uncertain terms. But we are not concerned with the follow up action that the Government has taken in bringing the guilt to book. The controversy before us is limited to the question whether the Commission was a "Court" for the purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973. On June 23, 1987 the Commission by its order directed its Secretary to issue a show cause notice to the appellant as to why he should not be prosecuted for the offence of giving false evidence on oath under section 193 of the Indian Penal Code, 1860 read with section 340 of the Code of Criminal Procedure, 1973,the relevant portion whereof reads: "AND WHEREAS you are summoned by the Commission under Section 4 of the , to give evidence before it and you did give evidence before it on PG NO 949 22nd April 1987, 23rd April 1987, 24th April 1987, 27th April 1987, 28th April 1987, 29th April 1987, 4th May 1987, 5th May 1987, 8th June 1987 and 9th June 1987; ****** ****** ****** AND WHEREAS the Commission is prima facie of the opinion that it is expedient in the interests of justice that an inquiry should be made into the offence under Section 193 of the Indian Penal Code referred to in clause (b) of sub section (1) of Section 195 of the Criminal Procedure Code which appears to have been committed by you in or in relation to the proceedings before this Commission; ***** ****** NOW THEREFORE TAKE NOTICE that the Hon 'ble Mr. Justice B. Lentin, Commission of Inquiry, has fixed this Notice for hearing on Friday, the 26th June 1987 at 2.45 p.m., in Court Room No. 37, First Floor, Main High Court Building, Bombay 400 032, when you are required to appear either in person or by an Advocate to show cause, if any, why proceedings should not be initiated against you as hithertofore stated for the offence ot giving false evidence before the Commission. " It was stated in the notice that the appellant gave self contradictory answers specified in columns 'A ' and 'B ' in Schedule I, one of which had necessarily to be false. The relevant excerpts of sections 191 and 193 of the Indian Penal Code. section 340 of the Code of Criminal Procedure and sections 4(a), 5(5) and 6 of the were set out in Schedule II. In response to the notice, the appellant appeared through counsel and showed cause. Amongst other grounds, the appellant contended, firstly, that in law the appellant 's evidence would not technically constitute perjury and even if it were so. this was not a fit case where in the interests of justice it was expedient that an inquiry should be made against the appellant into the alleged offence under section 193 of the Indian Penal Code. referred to in cl. (b) of sub section (1) of section 195 of the Code of Criminal Procedure which appeared to have been committed in or in relation to the proceedings before it Secondly, the Commission of Inquiry was not a Court for the purposes of section 195(1)(b) and section 340 of the Code. It was stated that while perjury before the Commission was doubt punisable, it was not for the Commission to give a finding in terms of section 340, PG NO 950 or to file a complaint, but for 'the Government or a public spirited person ' to do so. The Commission by its well considered order dated July 7,1987 repelled each of these contentions and held that the case was a fit one where in the interests of justice it was expedient to prosecute the appellant. Any other course would, in its words, 'bring the sanctity of oath and administration of justice into ridicule and contempt '. The Commission observed that the appellant was not illiterate or semi literate person who could plead confusion of mind in the witness box, as indeed he does not. By profession he was a medical practitioner but he played a prominent part in public life; for several years he held various portfolios as Cabinet Minister in the Government of Maharashtra, including Health. According to the Commission, he was by far the most intelligent and shrewdest witness who had given evidence before it. Unlike the other witnesses he never recanted, in an attempt to deliberately distort the truth. It went on to observe that normally, witnesses are not allowed to be represented by counsel. However in a departure from normal practice, the Commission allowed this latitude to the appellant, so that justice should not only be done but should be seen to be done to him and he had a counsel of his choice. Accordingly, the Commission directed its Secretary to take necessary steps for expeditious filing of the complaint in the proper forum and directed that the appellant should, in the meanwhile, furnish a personal bond in the sum of Rs.500 for his appearance before the Metropolitan Magistrate. The Secretary to the Commission accordingly filed a complaint on July 17, 1987 against the appellant under sections 193 and 228 of the Indian Penal Code being Criminal Case No. 1121((w) of 1987 in the Court of the Additional Chief Metropolitan Magistrate at Esplanade, Bombay. On the same day, the appellant filed a petition in the High Court under article 226 of the Constitution assailing the legality and propriety of the impugned order passed by the Commission and the consequent direction to its Secretary to lodge a complaint against the appellant for giving of false evidence. On July 20, 1987 the learned Metropolitan Magistrate issued process under section 193 of the Indian Penal Code against the appellant and further issued a bailable warrant in the sum of Rs.500 with one surety in the like amount. A Division Bench of the High Court by its judgment dated August 117 1987 repelled the contentions advanced by the appellant and accordingly dismissed the writ petition. We may first reproduce the statutory provisions bearing on the controversy. The relevant provision of section 191 of the Indian Penal Code, insofar as material, reads: PG NO 951 "191. Giving false evidence Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. " Section 195(1)(b) of the Code of Criminal Procedure provides: " 195(1) No Court shall take cognizance (b)(i) of any offence . , or in relation to, any proceeding in any Court, or except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." Sub section (3) of section 195 of the Code provides that in cl. (b) of sub section (1), the term `Court ' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. We may then set out the relevant provisions of the . The relevant provision contained in sub section (1) of section 3 provides as follows: "3. Appointment of Commission (1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly. " Section 4 vests in the Commission the powers of a Civil Court while trying a suit under the Code of Civil Procedure and reads as follows: PG NO 952 "4. Powers of Commission The Commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. " Section 5 empowers the appropriate Government, by a notification in the Official Gazette, to confer on the Commisson additional powers as provided in all or any of the sub sections (2), (3), (4) and (5) of that section. Sub sections (4) and (5) of section 5 of the Act, which are relevant for our purposes, provide as follows: "(4). The Commission shall be deemed to be a civil court and when any offence as is described in section 175 section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860)is committed in the view of presence of the Commission, the Commision may. after recording the facts constituting the offence and statement of the accused as provided for in the Code of Criminal Procedure, 1898 (5 of 1898), forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of the Criminal Procedure, 1898." "(5) Any proceeding before the Commission shall be PG NO 953 deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860). " Section 6 provides: "6. Statements made by persons to the Commission No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement: Provided that the statement (a) is made in reply to a question which he is required by the Commission to answer, or (b) is relevant to the subject matter of the inquiry. " By section 8 the Commission is empowered to regulate its own procedure including the time and place of its sittings etc. In support of the appeal Dr. Y.S. Chitale, learned counsel for the appellant submits that the Commission of Inquiry appointed by the State Government under sub section (I) of section 3 of the Act read with section 5 is merely a fact finding body appointed by the Government for the `information of its mind ', and the mere fact that the procedure adopted is of a legal character and that it has the power to administer an oath will not impart to it the status of the Court and therefore is not a Court for the purposes of section 195(1)(b) of the Code. He submits that it is well settled that a Commission of Inquiry has not the attributes of a Court inasmuch there is no lis before it and it has no powers of adjudication of rights. He further points out that the language of section 6 of the Act is plain enough to show that no statement by a person before a Commisson of Inquiry `can subject him to, or be used against him ' in any civil or criminal proceedings, except in a prosecution for giving false evidence before the Commission. The question before the Court, the learned counsel contends, is not whether the appellant can be prosecuted for perjury for giving false evidence which is an offence punishable under section 195(l)(b) or for the offence of intentional insult of the Commission punishable under section 228 of the Indian Penal Code, but whether the Commission was a `Court ' for the purposes of section 195(1)(b). A Commission by reason of section 4 has the same powers of a Civil Court while trying a suit under the Code PG NO 955 of Civil Procedure, 1908 but such investiture of power is for a limited purpose i.e. in respect of the matters specified therein, namely, summoning of witnesses, requiring the discovery and production of the relevant documents, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commissions for examination of witnesses or documents etc. Still in the very nature of things, it has not the trappings of a Court. The learned counsel relies upon the decision of the Nagpur High Court in M.V. Rajwade vs Dr. S.M. Hassan & Ors., ILR (1954) Nagpur 1 where the question arose whether the Commission of Inquiry was a `court ' within the meaning of the and which was referred to by this Court in Brajnandan Sinha vs Jyoti Narain, ; while holding that the public under the is not a `Court ' within the meaning of the . He also relied upon the later decision of a Division Bench of the Madhya Pradesh High Court in Puhupram & Ors. vs State of Madhya Pradesh & Ors., and to a judgment of a learned Single Judge of the Kerala High Court in Balakrishnan vs Income Tax Officer, Ernakulam & Anr., Dr. Chitale submits that sub section (3) of section 195 of the present Code has brought about a change in the law. He traced the legislative history behind the enactment of sub section (3) of section 195 and pointed out that in Jagannath Prasad vs State of Uttar Pradesh; , this Court held that a Sales Tax Officer acting under the Uttar Pradesh Sales Tax Act, 1948 was merely an instrumentality of the State for purposes of assessment and collection of tax and even if he was required to perform certain quasi judicial functions, he was not a `Court ' for the purposes of section 195(1)(b) of the Code. Nor could he be treated to be a Revenue Court within the meaning of section 195(2) of the Code. He then referred to the decision in Lalji Haridas vs State of Maharashtra & Anr. (supra) where a Constitution Bench by a majority of 3:2 took a view to the contrary and held that proceedings before an Income Tax Officer under section 37 of the Indian Income Tax Act, 1922 while exercising his powers under sub sections (1), (2) and (3) thereof were judicial proceedings for the purposes of sections 193, 196 and 228 of the Indian Penal Code and therefore must be treated as proceedings in any Court for the purposes of section 195(1)(b) of the Code although the Act did not expressly said so. The learned counsel points out that the definition of `Court ' in section 195(2) as originally enacted, used the word `means ' instead of the word `includes ', which later was substituted by the Criminal Procedure Code (Amendment) Act, 1973. This gave rise to a controversy whether tribunals or officers PG NO 955 acting in judicial capacity or exercising quasi judicial functions should be regarded as Courts for the purposes of section 195(1)(b) . The substitution of the word `includes ' for the word `means ' in the definition, if anything, added to the difficulties of this complex issue. It necessarily gave rise to the question what else besides Civil, Revenue and Criminal Courts was covered by the generic term `Court. '. The learned counsel drew our attention to the decision of this Court in Shri Virindar Kumar Satyawadi vs The State of Punjab, , a three Judges Bench speaking through Venkatarama Ayyar, J. observed at p. 1018: "It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust to them work of a judicial character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by Lord Sankey L.C. in Shell Company of Australia vs Federal Commissioner of Taxation, , some of the trappings of a Court. " It was then observed: "It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act is possesses all the attributes of a Court. " In support of his submissions, Dr. Chitale relied upon the 41st Report of the Law Commission, paragraphs 15.93 to 15.101 and in particular referred to the following passage in para 15.99 where it was observed that `in any concrete case this question is bound to create problem of interpretation ' and accordingly suggested a change in law he purposes of section 195(1)(b): PG NO 956 "We consider that for the purpose of clauses (b) and (c), "court" should mean a civil court or a revenue court or a criminal court properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if it is declared by that Act to be a court for the purposes of this section." The learned counsel contends that Parliament accordingly enacted sub section (3) of section 195 to put an end to the controversy. In view of the change in law brought about by section 195(3), it is urged that a tribunal constituted by or under a Central, Provincial or State Act can be deemed to be a `Court ' only if it is declared to be so by that Act for the purposes of section 195. According to the learned counsel, it is now a familiar feature of recents Act to insert a specific provision deeming a tribunal to be a Court and wherever such a provision is not there, the Court cannot deem a tribunal to be a Court. According to him, it is no more a question of interpretation but one of express enactment. He accordingly contends that the majority decision in Lalji Haridas ' case no longer holds the field. There appears to be considerable force in the argument . Pursuing the same line of thought i.e. there is a change of law brought about by sub section (3) of section 195 of the Code, the learned counsel contends that Parliament had to step in and expressly amend section 136 of the Income tax Act, 1961 to put the matter beyond controversy. Sec 136 of Income tax Act, 1961 as originally enacted provided by legal fiction that "any proceeding under this Act before an income tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, 1860". Interpreting section 136 before its amendment, the Court has, as already stated, in Lalji Haridas ' case held that the proceedings before the Income tax Officer being deemed to be judicial proceedings under section 193, Indian Penal Code, must be treated as proceedings in any Court for the purpose of section 195(1)(b), Criminal Procedure Code. It also added that under the provisions of the Indian Income tax Act of 1922, it could not be held that the Income tax Officer is a Revenue Court, contrary to the rule laid down in Jagannath Prasad 's case. In the course of his arguments, the learned counsel has brought to our notice the words in parenthesis added by section 28 of the Finance Bill, 1985. The Finance Bill by section 28 brought about a change in the law and added the words: "28. Amendment of section 136 of the Income tax Act, the PG NO 957 words and figures "and every incometax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)", shall be inserted and shall be deemed to have been inserted at the end with effect from the 1st day of April, 1974. " The reason for the change is given in the Notes on Clauses in the Finance Bill, 1985 and it reads: "Clause 28 seeks to amend section 136 of the Income tax Act relating to proceedings before income tax authorities to be judicial proceedings. This amendment seeks to secure retrospectively that an income tax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, from the date of its commencement, that is, 1st April, 1974. " This is also evident from paragraph 119 of the Memorandum explaining provisions in Finance Bill, 1985 and it reads: "119. Under the existing provisions. proceedings before income tax authorities are deemed to he judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. It is proposed to provide that an income tax authority shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. This amendment is intended to secure that prosecution proceedings for offences under the relevant provisions of the Indian Penal Code may be launched on the complaint of the concerned income tax authority. The proposed amendment will take effect from 1st April, 1974, that is, the date from which the Code of Criminal Procedure, 1973, came into force. " According to Dr. Chitale this was nothing but "legislative declaration of the law.", contrary to the law declared by this Court in Lalji Haridas ' case, which is permissible under article 141 of the Constitution. While the learned counsel accepts that under article 141 the law declared by the Supreme Court is binding on all Courts in India, in other words, the law declared by the Supreme Court is made PG NO 958 the law of the land, there is nothing to prevent the legislature to bring about a change in the law. Finally, the learned counsel also drew attention to the existing legislative practice where certain enactments constituting a Tribunal contain a provision that the Tribunal shall be deemed to be a Court for the purposes of section 195(2) of the Code. The learned counsel referred us to section 40 of the Indian Railways Act, 1890, section 23 of the and section 18 of the . These provisions which are almost similar provide that the Tribunal under the Indian Railways Act, the Commissioner under the and the authority appointed under the shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. Likewise, section 18 of the provides that the authority appointed under the Act shall be so deemed to be a Court for the purposes of section 195 of the Code. We shall consider all these aspects in their proper context. In his reply Shri Arvind Bobde, learned Advocate General appearing on behalf of the State Government argued with great clarity and precision and repelled the contentions advanced on behalf of the appellant. According to the learned Advocate General, there was no need to amend the Act merely because of the enactment of sub section (3) of section 195 of the Code and the majority view in Lalji Haridas ' case is binding on us and is still good law. His submissions were on these lines. While under section 4 of the Act a Commission of Inquiry has the power of a Civil Court while trying a suit under the Code of Civil Procedure, l908 in respect of the matters enumerated therein, the legislature has not rested at that. Parliament has made express provision, by the use of a legal fiction in sub section (4) of section 5 of the Act, that a Commission of Inquiry shall be deemed to be a Civil Court and has further, by the use of another legal fiction in sub section (5) thereof, enjoined that any proceedings before a Commission of Inquiry shall be deemed to be judicial proceedings. On a combined reading of sub sections (4) and (5) of section 5, the learned Advocate General contends that the conclusion is irresistible that a Commission of Inquiry is a Court for the purposes of section 195(1)(b) as laid down in Lalji Haridas ' case. In other words, the submission is that while section 4 invests a Commission of Inquiry with the power of a Civil Court following the familiar pattern of statutes constituting special tribunals, the legislature has gone further and put the matter beyond doubt by enacting sub sections (4) and (5) of section 5. The contentions advanced on behalf of the appellant were, it is said, the submissions made before the Court in Lalji Haridas ' case, and the Court has dealt PG NO 959 with the question as to whether there was a distinction between a case where a statute constituting a tribunal provides that the tribunal shall be deemed to be a Court for the purposes of section 195(1)(b) and a case where a statute does not expressly say so. The majority on a construction of the various provisions of the Act, expressed the considered view that the absence of such a provision makes no difference. It was further not open for us to say that the decision in Lalji Haridas ' case was no longer binding on us merely by the enactment of sub section (3) of section 195 of the Code. The learned Advocate General then read out the provisions of section 195(1)(b) of the Code of Criminal Procedure, 1898 and of the present Code, as well as the interpretation clause in sub section (3) of section 195 of the present Code and the analogous provisions in sub section (2) of section 195 of the old Code, to impress upon us that there was no textual difference in the language of section 195(1)(b). As regards the interpretation clause, it was pointed out that the first part of section 195(2) of the old Code used the word `means ' which was later substituted by the word `includes '. The first part of section 195(2) was therefore an inclusive one but the second was an exclusionary clause so as to exclude the Registrar or the SubRegistrar under the Indian Registration Act from the purview of the expression `Court ', as defined by the first part of section 195(2). In contrast, the definition of the term `Court ' in sub section (3) of section 195 of the present Code is exhaustive. However, it is urged that all that section 195(3) of the present Code does is to provide that in cl.(b) the term `Court ' as defined in section 195(3) means a Civil Revenue or Criminal Court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. The definition of `Court ' in the first part of section 195(3) of the Code is therefore restrictive while the second is inclusive. It is contended that the definition of a word may either be restrictive of its ordinary meaning or it may be extensive of the same. Sometimes, definition of a term contains the words `means and includes ' which may inevitably raise a doubt as to interpretation. According to the learned Advocate General, the inclusive part of the definition of `Court ' in section 195(3) of the Code was ex abundanti cautela and was merely declaratory of the law. It is submitted that the first part of sub section (4) of section 5 of the Act fulfils the requirements of the inclusive part of the definition of `Court ' in section 195(3) of the Code. Therefore, the Act was in line with sub section (3) of s 195 of the Code, there was no occasion for Parliament to effect an amendment of the Act, particularly having regard to the majority decision in Lalji Haridas ' case. PG NO 960 The learned Advocate General with much learning and resource submits that there are different types of legislative practices. One such instance is that of sub section (4) of section 37 of the Indian Income Tax Act, 1922, inserted in the Act in 1956, which provides that any proceeding before an Income Tax Officer shall be deemed to be a judicial proceeding, like in sub section (5) of section 5 of the here. Our attention was drawn to the following observations of Gajendragadkar, CJ speaking for the majority in Lalji Haridas ' case as to the purport and effect of section 37 of the Indian Income Tax Act, at pp. 709 710: "The expression "judicial proceeding" is not defined in the Indian Penal Code, but we have the definition of the said expression under section 4(m) of the Cr. Procedure Code. Section 4(m) provides that "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. The expression "Court" is not defined either by the Cr. P.C. or the I.P.C., though 'Court of Justice ' is defined by section 20 of the latter Code as denoting a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. Section 3 of the Evidence Act defines a "Court ' as including all Judges and Magistrates and all persons except the Arbitrators legally authorised to take evidence. Prima facie, there is some force in the contention that it would not be reasonable to predicate al out every judicial proceeding that it is a proceeding before a Court. and so, it is open to the appellant to urge that though the proceeding before an Income tax officer may be a judicial proceeding under section 193, I.P.C. it would not follow that the said judicial proceeding is a proceeding in a Court as required by section 195(1)(b), Cr. P.C." And to the operative part of the judgment delivered by the learned Chief Justice at pp. 710 711: "It is true, the Additional Solicitor General has mainly relied upon the relevant provisions of several statutes in support of his construction and in so far as it appears that certain provisions in some of the said statutes in terms extend the application of section 195 Cr. P.C. to the proceedings to which they relate, the argument does receive support, but PG NO 961 we hesitate to hold that the omission to refer to section 195(1)(b), Cr. P.C. in section 37(4) of the Act necessarily means that the intention of the legislature in enacting section 37(4) was merely and solely to provide for a higher sentence in regard to the offence under section 193, I.P.C. if it was committed in proceedings before the Income tax Officer. It is plain that if the argument of the Additional Solicitor General is accepted, the result would be that a complaint like the present can be made by any person and if the offence alleged is proved, the accused would be liable to receive higher penalty awardable under the first paragraph of section 193, I.P.C. without the safeguard correspondingly provided by section 195(1)(b), Cr. Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf? We are inclined to hold that the answer to this question must be in the negative." The learned Chief Justice then concluded: "After careful consideration, we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons. Section 37(4) of the Act makes the proceedings before the Income tax Officer judicial proceedings under section 193 T.P.C. and these judicial proceedings must be treated as proceedings in any Court for the purpose of section 195(1)(b), Cr. P.C. That, we think, would really carry out the intention of the legislature in enacting section 37(4) of the Act." Incidentally, the learned Advocate General also drew our attention to the following observations at p. 706 where the majority was dealing with section 195(2) of the old Code saying that it was not necessary to deal with the effect of that provision because, they did not propose to base their decision on the ground that the Income tax Officer was a Revenue Court under that sub section, and added: "The only point of interest to which we may incidentally refer is that this sub section gives an inclusive, though not exhaustive, definition and takes within its purview not only Civil and Criminal Courts, but also Revenue Courts, PG NO 962 while excluding a Registrar or Sub Registrar under the Indian Registration Act." Another decision to which the learned Advocate General relied upon is that of this Court in Balwant singh & Anr. vs L. C. Bharupal, Income Tax Officer, New Delhi & Anr., where a three Judges Bench speaking through Shelat, J. reiterated the majority view in Lalji Haridas ' case and held that: the proceedings before an Income tax Officer for the registration of a firm under section 26A of the Indian Income tax Act, 1922 were judicial proceedings in a Court for the purposes of section 195(1)(b) of the Code. Another legislative practice to which our attention was drawn by the learned Advocate General was the one employed in section 34 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Sub section (l) of section 34 of that Act provides that the District Magistrate, the Prescribed Authority or any appellate authority shall, for the purposes of holding any inquiry or hearing any appeal under the Act, have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters enumerated therein, just like section 4 of the . Then comes sub section (2) which may be extracted below: "(2) The District Magistrate, the Prescribed Authority or appellate or revising authority, while holding an inquiry or hearing an appeal or revision under this Act. shall be deemed to be a Civil Court within the meaning of sections 345 and 346 of the Code of Civil Procedure, 1908 and any proceeding before him or it to be a judicial proceeding within the meaning of sections 193 to 228 of the India Penal Code (Act No. XLV of 1860). " In Chandrapal .Singh & Ors. vs Maharaj Singh & Anr. , a 3 Judges Bench speaking through Desai, J. held that in view of the specific provision made in sub s.(2) of section 34 of the UP Rent Act. a District Magistrate must be deemed to be a Civil Court within the meaning of section 193 of the Indian Penal Code, as well as for the purposes of sections 195(1)(b) and 482 of the Code of Criminal Procedure. We were referred to the following passage in that judgment: "Now, sub section (2) of Section extracted hereinbefore would show that the expression `District Magistrate ' which would include any officer authorised by him to exercise, perform and discharge his powers, functions and duties, PG NO 963 shall be deemed to be a civil court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898. Sections 345 and 346 of the Code of Criminal Procedure 1973, are corresponding to Sections 480 and 482 of the Cr.P.C., 1898. As a corollary it would follow that the Rent Control Officer shall be deemed to be a civil court within the meaning of Sections 345 and 346 of the Cr. P.C., 1973 and in view of sub section (2) of Section 34 of the Rent Act, shall be a civil court for the purpose of section 193, IPC. Section 195(3), Cr. P.C. provides that the expression `Court ' in Section 195(1)(b)(i) will include a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purposes of the section. Section 195(1)(b)(i) provides a pre condition for taking cognizance of an offence under Section 193, IPC, viz. a complaint in writing of the court. In view of the specific provision made in sub section (2) of Section 34 of the Rent Act that for the purposes of Sections 345 and 346. P.C., Rent Control Officer, assuming it to be a tribunal as held by the High Court and not a court, would be deemed to be a civil court and, therefore, for purposes of Sections 193 and 228, IPC a fortiori any proceeding before it would be a judicial proceeding within the meaning of Section 193, IPC. If, therefore, according to the complainant false evidence was given in a judicial proceeding before a civil court and the persons giving such false evidence have committed an offence under Section 193, IPC in or in relation to a proceeding before a court, no court can take cognizance of such offence except on a complaint in Writing of that court. " Placing reliance on these observations, the learned Advocate General contends that according to the ratio in Chandrapal Singh 's case, a Commission of Inquiry is a Court for the purposes of section 195 (1)(b). According to him, the first part of sub s.(4) of s.5 of the Act satisfies the requirements of the inclusive part of the definition of `Court ' as contained in sub s.(3) of s.195 of the Code. Another legislative practice, according to the learned Advocate General, was the one adopted by section 28 of the Finance Act, 1985 where the law enacted contains a legal fiction that any proceeding under the Income tax Act before an income tax authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the PG NO 964 purposes of section 196 of the Indian Penal Code viz. every income tax authority shall be deemed to be a Civil Court for the purposes of section 195 but not for the purposes of Chapter XXVI of the Code. According to him the amendment brought about in section 136 of the Income tax Act was nothing but `legislative exposition of the law ', as declared in Lalji Haridas ' case. To substantiate his submission that the legislature adopted different methods to achieve the same end, he drew our attention to section 23 of the and section 18 of the where, like section 136 of the Income tax Act, 1961 as now amended by section 28 of the Finance Act, 1985 the analogous provision which, he says is a combination of two provisions like sub sections (4) and (5) of section S of the , into one, enacts that the Commissioner appointed under the shall be deemed to be a Civil Court for all purposes of section l9S of the Code, and by section 18 of the , that the authority appointed under the Act shall be deemed to be a Court for the purposes of section 195 of the Code. The phraseology may differ but, the learned Advocate General contends, the method is the same. He also referred to sub section (4) of section 108 of the Customs Act, 1952 which provision is in pari materia with sub section (5) of section 5 of the , and enacts that every proceeding before a Customs Officer shall be deemed to be a judicial proceeding within the meaning of ss.193 and 228 of the Indian Penal Code. It would be seen that the underlying theme of all these submissions of the learned AdvocateGeneral is by placing emphasis on sub section (4) of section 5 of the which provides that a Commission of Inquiry shall be deemed to be a Court. He contends that the legal fiction must be given its full effect and therefore the Commission must be treated to be a Civil Court for `all purposes '. And in the alternative, he submits that the word `deemed ' is also sometimes used by the legislature in order to remove any doubt in the matter. We shall consider all these aspects in their proper context. After the conclusion of the hearing Dr. Chitale, learned counsel for the appellant, has furnished a list of 11 enactments where Parliament while enacting a law has made an express provision that the Tribunal shall be deemed to be a Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. For instance. sub section (6) of section 20 of the Aluminium Corporation of India Limited (Acquisition and Transfer of Aluminium Undertaking) Act, 1984 provides that any investigation before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the Commissioner shall be deemed to be a Civil Court for the PG NO 965 purposes of section 195 and Chapter XXVI of the Code of A Criminal procedure, 1973. Similar provisions are contained in section 18(6) of the Amritsar Oil Works (Acquisition etc.) Act, 1982, section 22(6) of the Bengal C. & P. Works Ltd. Act, 1980, section 21(6) of the Bengal Immunity Co. Ltd. (Acquisition & T.O.U.); Act, 1984, section 19(6) of the Bird & Company Ltd. (Acquisition etc.) Act, 1980, section 12(3)(d) of the Cine Workers etc. (Regulation of Employment) Act, 1981, section 37(2) of the Emigration Act, 1983, section 13(5) of the , sections 14 of the , section 19 of the Illegal Migrants (Determination by Tribunals) Act, 1983 and section 95 of the , deeming the Commissioner or the Tribunal appointed under the respective Acts for investigation of claims to be a Civil Court for the purposes of section 195 and Chapter XXVl of the Code of Criminal Procedure, 1973. Of these eleven enactments, 5 relate to acquisition of certain industrial undertakings and there is provision made for investigation of claims for the purposes of payment of compensation. The sixth relates to regulation of the conditions of employment of a class of workmen. The remaining five enactments provide for creation of a tribunal for investigation of claims or entrusted with certain adjudicatory functions. It would therefore appear that Parliament in its wisdom wherever thought it fit has inserted a special provision for deeming a tribunal to be a Court for the purposes of section 195(1)(b) but has left the other enactments like the untouched although sub section (3) of section 195 has been on the Statute Book for the last over 14 years. This lends support to the submission of Dr. Chitale that it is no more a question of interpretation but one of express enactment. The crucial question that falls to be determined in this appeal is whether sub section (3) of section 195 has brought about a change in the law and therefore the majority decision in Lalji Haridas ' case no longer holds the field as submitted by Dr. Chitale, appearing on behalf of the appellant, or was merely declaratory of the law as declared by the Court in Lalji Haridas ' case, as argued by the learned Advocate General, and therefore, the decision in Lalji Haridas ' case is still good law. It cannot be doubted that sub section (3) of section 195 of the Code has been enacted by Parliament to implement the recommendations of the 41st Report of the Law Commission which brought about the unsatisfactory state of law due to conflict of opinion between different High Courts as to the meaning of the word `Court ' in section 195(1)(b) read in the context of section 195(2) of the earlier Code. The interpretative exercise undertaken by the Courts over the years as to the precise meaning of the term `Court ' as defined in section 195(1)(b) of the old Code prior to the introduction of sub s.(3) of section 195 of the present Code, PG NO 966 reveals an endless oscillation between two views each verging on a fringe of obscurity and vagueness. As echoed by Lord Macmillan in his Law & Other Things at p. 48: "In almost every case, except the very plainest, it would be possible to decide the issue either way with reasonable legal justification and that in such cases, ethical considerations operate and ought to operate. " In that uncertain state of law, the Law Commission observed in paragraph 15.99 of its Report that it felt that in any concrete case this question is bound to create problem of interpretation and accordingly suggested a change in law for the purposes of section 195 of the Code. It felt that the term `Court ' for the purposes of clauses (b) and (c) should mean a Civil, Revenue or a Criminal Court, properly so called, but where a tribunal created by an Act has all or practically all the attributes of a Court, it might be regarded as a Court only if declared by the Act to be a Court for the purposes of section 195. Indibutably, the introduction of the inclusive clause in the definition of 'Court in subs. (3) of section 195 has brought about a change in the law. No rule is more firmly established than the principles enunciated in Heydon 's case. which have been continually cited with approval not only by the English Courts but also by the Privy Council as well as this Court. The principles laid down in Heydon 's case have been enunciated in Craies on Statute Law, 6th edn. at p. 96 as follows: "That for the sure and true interpretation of all statutes in general (be they penal or beneficial restrictive or enlarging of the common law), four things are to be discerned and considered: (1) what was the common law before the making of the Act (2) What was the mischief and defect for which the common law did not provide (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico. " PG NO 967 These rules are still in full force and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof. The Court applied the rule in Heydon 's case in The Bengal Immunity Company Limited vs The State of Bihar & Ors., in the construction of article 286 of the Constitution. After referring to the state of law prevailing in the then Provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, S.R. Das, Actg. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say: "It was to cure this mischief of multiple taxation and to preserve the free flow of inter State trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution makes adopted article 286 of the Constitution. " An illustration of the application of the rule is also furnished in the construction of section 2(d) of the . In R.M.D. Chamarbaugwalla vs The Union of India ; Venkatarama Ayyar, J. speaking for the Court after referring to the previous state of the law, to that mischief that continued under that law and to the resolutions passed by different State Legislatures under article 252 (1) of the Constitution authorising Parliament to pass the Act stated: "Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend on any substantial degree of skill. " A further example is furnished in the construction of section 16(3) of the Indian Income tax Act, 1922 which provides: "In computing the total income of any individual for the purpose of assessment. there shall be included (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly. " The question before the Court was whether the word `individual ' occurring in section 16(3) meant only a male or also included a female. After finding that the said word in the setting was ambiguous, Bhagwati, J. speaking for himself and J.L. Kapur, JJ. in The Commissioner PG NO 968 of Income tax, Madhya Pradesh & Bhopal vs Sodra Devi, ; observed: "In order to resolve this ambiguity therefore we must of necessity have resort to the state of the law before the enactment of the provisions, the mischief and the defect for which the law did not provide; the remedy which the legislature resolved and appointed to cure the defect; and the true reason of the remedy; After taking into account these factors the learned Judge went on to say: "It is clear that the evil which was sought to be remedied was the one resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their minor children to the benefits of the partnerships of which they were members. This evil was sought to be remedied by the enactment of section 16(3) in the Act. " There is no need to burden the judgment with numerous citations. Following the rule in Heydon 's case it appears to us that to construe sub section (3) of section 195 of the Code it is not only legitimate but highly convenient to refer both to the former Code and the state of uncertainty brought about due to conflict of views between different High Courts, and to the present Code which seeks to provide the remedy. It was to cure this mischief that Parliament brought in sub section (3) of section 195 of the Code and put an end to the controversy. Law must be definite, and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thinkers of our time observes in his influential book 'The Concept of Law ', depicting the difficult task of a Judge to strike a balance between certainty and flexibility: "Where there is obscurity in the language of a statute, it results in confusion and disorder. No doubt the courts so frame their judgments as to give the impression that their decisions are the necessary consequence of predetermined PG NO 969 rules. In very simple cases it may be so; but in the vast majority of cases that trouble the courts, neither statute nor precedents in which the rules are legitimately contained allow of only one result. In most important cases there is always a choice. The judge has to choose between alternative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges `find ' and do not `make ' law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre existing rules without intrusion of the judge 's choice. " Faced with the difficulty, the learned Advocate General with his usual astuteness says that although he cannot fall back on the inclusive part of the definition of `Court ' in sub section (3) of section 195 of the Code, laid particular emphasis on the main part of the definition and contended that the mere absence ot an express provision in the deeming the Commission to be a Court for the purposes of section 195 of the Code, it would not necessarily imply that the Commission is not a Court for the purposes of section 195 particularly when sub section (4) of section 5 in express terms provides that the Commission shall be deemed to be a Civil Court and sub section (5) expressly provides that any proceeding before the Commission shall be deemed to be judicial proceeding within the meaning ot sections 193 and 233 of the Indian Penal Code. The learned Advocate General contends that the use of the words deemed to be ' indicates that the proceedings before a Commision of Inquiry are not judicial proceedings, but by legal fiction they have to be regarded as judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code. It is contended that the word `deemed ' is however sometimes used by the legislature in order to remove any doubt in the matter. He drew our attention to the following observations of Lord Radcliffe in St. Aubyn v . Attorney General ; " . The word `deemed ' is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible. " PG NO 970 The main thrust of the argument of the learned Advocate General that a Commission of Inquiry should be regarded as a Court for the purposes of section 195(1)(b) stems from a wrongful hypothesis that subs. (4) of section 5 of the Act is in two parts. He contends for the purpose of his submission that sub section (4) of section 5 of the Act consists of two separate provisions, the first of which deals with the status of a Commisson of Inquiry as a Civil Court and the second deals with the power of the Commission to forward a case under section 482 of the earlier Code (corresponding to section 346 of the present Code) when any offence as is described in section 175, section 179, section 180 or section 228 of the Indian Penal Code is committed in view of or presence of the Commission, to a Magistrate having jurisdiction to try the same. The submission is that sub section (4) is in two parts dealing with separate subject matters and merely because they are joined by the word `and ', the first part cannot be projected into the second. We are afraid, we are unable to agree with this line of reasoning. It would not be correct to contend that the legal fiction contained in the first part of sub section (4) is complete in itself and therefore a Commission of Inquiry must, by reason of the legal fiction contained therein, be deemed to be a Civil Court `for all purposes '. The argument fails to take note of the fact that the words `for all purposes ' are not there in the first part of sub section (4) and the Court cannot in the guise of interpreting the provision, supply any casus omissus. The first part of sub section (4) merely provides by the legal fiction that a Commission of Inquiry shall be deemed to be a Civil Court and it stops there. We are quite clear that the first part cannot be read in isolation but must take its colour from the context in which it appears. It would not be correct to contend that the fiction created by the first by the words `shall be deemed to be a Civil Court ' is full and complete in itself. The purpose and object of the legal fiction created by the first part of sub section (4) is reflected in the second. A Commission of Inquiry is therefore fictionally a Civil Court for the limited purpose of proceeding under section 482 of the old Code or under section 346 of the present Code. A fortiori, the legal fiction contained in sub section (5) of section 5 which relates to the proceedings before the Commission is necessary confined to offences that are punishable under sections 193 and 228 of the Indian Penal Code and does not extend beyond that. In Lalji Haridas case the majority of this Court held that the proceedings before an Income tax Officer under section 37(4) of the Indian Income tax Act, 1922 were judicial proceedings under section 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of section 195(1)(b) of the Code. It must be remembered that the decision in Lalji Haridas ' case was rendered prior to the enactment of sub section (3) of section 195 of PG NO 971 the present Code. The Court was therefore concerned with the defintion of the term `Court ' under section 195(2) of the earlier Code which was an inclusive one. There being no express provision akin to section 40 of the Indian Railways Act, section 23 of the or section 18 of the , the matter was one of construction. The question therefore whether an Income tax Officer was a Court for the purposes of section 195(1)(b) was more a question of interpretation than one of express enactment after the amendment of section 126 of the Income tax Act, 1961 by section 28 of the Finance Act, 1985. The decision of the majority in Lalji Haridas ' case is now more of academic interest. The decision in Balwant Singh 's case does not carry the matter any further. It would be convenient at this stage to deal with the decision of this Court in Chandrapal Singh 's case. Under the scheme of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. various functions are entrusted to different authorities. The District Magistrate as defined in section 3(c), is vested with the power of making an order of allotment under section 16(1)(a). In making such an order of allotment under cl. (a) or on order of release of accommodation under cl. (b) of section 16(1), the District Magistrate clearly exercises a quasijudicial function and therefore has a duty to hear. The landlord has a right to have the order passed by the District Magistrate under section 16(1)(b) for release of the building or part thereof for any of the purposes set out in section 16(2). The District Magistrate may release the building or any part thereof or any land appurtenant thereto under section 16(1)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. The expression `District Magistrate ' as defined in section 3(c) is an inclusive one and it includes an officer authorised by the District Magistrate to exercise, perform and discharge all or any of his powers, functions and duties. Such an officer is normally designated as the Rent Control & Eviction Officer. Under section 20 of the Act the powers of eviction are exercisable by the regular Civil Courts. In cases not falling under section 20 but under section 21, the powers are exercisable by the Prescribed Authority. A landlord may apply for release of the accommodation on the ground of bona fide requirement under section 21(1)(a) before the Prescribed Authority. The expression `Prescribed Authority ' as defined in section 3(e) means a Civil Judicial Officer or Judicial Magistrate authorised by the District Magistrate to exercise perform and discharge all or any of the powers, functions and duties of the Prescribed Authority under the Act. The hierarchy of Courts is clearly established because section 18 of the Act contemplates an appeal from an order of the District Magistrate to the District PG NO 972 Judge. Although therefore Desai, J. in delivering the judgment of the Court has not referred to the definition of District Magistrate in section 3(c) and that of the Prescribed Authority under section 3(e) or the provision for an appeal under section 18 of the Act. but has referred the authority as the Rent Control Officer which expression is not used in the Act. Presumably, when the learned Judge when he described the Rent Control Officer at p. 471 of the Report as a Civil Court, meant that the authorities designated under the Act were `Civil Courts In any event, considering the nature of functions to be performed under the U.P.Rent Act, the authorities designated would be Civil Courts. In contrast, a Commissions of Inquiry constituted under the Commission of Inquiry Act is neither a Civil Court nor a Criminal Court or a Court properly so called in the strict sense of the them. In view of the change in law, we fail to appreciate the contention of the learned Advocate General, without meaning any disrespect, that the principles laid down by the majority in Lalji Haridas ' case that on a combined reading of sub sections (4) and (5) of section 5 of the read in the context of sub section (4), an Income tax Officer must still be regarded to be a Court for the purposes of section 195(1)(b),despite the enactment of sub section (3) of s 195. A Commission of Inquiry is not a Court properly so called. A Commission is obviously appointed by the appropriate Government `for the information of its mind ' in order for it to decide as to the course of at action to be followed. It is therefore a fact finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory function. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is of a legal character and It has the power to administer an oath will not impart to it the status of a Court. In Virindar Kumar Satyawadi vs State of Punjab, supar, a threejugdes Bench speaking through Venkatarama Ayyar, J. relying upon the celebrated decision of the House of Lords in Shell Co. of Australia vs Federal Commissioner of Taxation. explained the legal connotation of the term `Court 'in these words: "What distinguished a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the right of parties in a definitive judgment. to decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation PG NO 973 on the part of the authority to decide the matter on a consideration of the adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. " It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust them with work of a judicial, quasi judicial or administrative character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by Lord Sankey, L.C. in Shall Co. of Australia 's case, some of the trappings of a Court. Venkatarama Ayyar, J. in Virindar Kumar Satyawadi has referred to several decisions of the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from tribunals exercising quasi judicial functions. About a decade later in Jagannath Prasad vs State of Uttar Pradesh, supra, case, this Court following its earlier decision in Smt. Ujjam Bai vs State of Uttar Pradesh, held that no doubt a Sales The Officer appointed under the U.P. Sales Tax Act, 1948 is an instrumentality of the State employed for the purposes of assessment and collection of taxes and merely because he has. in the discharge of his duties, to perform certain quasi judicial functions i.e. has certain powers which are similar to the powers exercised by Courts, still is not a Court as understood in section 195 of the Code. The Court relied upon the decision of the House of Lords in .Shell Co. of Australia for the view that a Sales Tax Office was not a Court in the strict sense of that term. It referred with approval to the following observations of Lord Sankey, L.C. where he enumerated some negative propositions to contra distinguish a tribunal from a Court: "In that connection it may be useful to enumerate some negative propositions on this subject: I. A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2. Nor because it hears witnesses on oath 3. Nor because two or more contending parties appear before it between whom it has to decide. Nor because it gives decisions which affect the rights of subjects. Nor because there is an appeal to a Court. Nor because it is a body to which a matter is referred by another body. See Rex. Electricity Commissioners, [1924] 1 K.L.B. 171 PG NO 974 There had been prior to the enactment of sub section (3) of section 195 of the present Code, a sharp conflict of opinion between the High Courts as to what are the Courts and what are not for the purposes of section 195(1)(b) of the old Code. The question whether a Commission of Inquiry constituted under the was a Court within the meaning of the and whether the proceedings before the Commission of Inquiry were judicial proceedings directly arose before a Division Bench of the Nagpur High Court in M. V. Rajwade vs Dr. S.M. Hassan, supra. Bhutt, J. speaking for himself and B.P. Sinha, CJ held that a Commission of Inquiry constituted under the was not a Court within the meaning of the . The learned Judge rightly observed that the legal fiction created by the first part of sub section (4) is for the limited purpose specified in the second and that the purpose for which the fiction is created is therefore to be gathered from what follows after the words which create the fiction. In dealing with the fiction, Bhutt, J. observed: "Applying this test in the instant case, it would appear that the purpose for which the fiction is created in sub section (4) of Section 5 of the , is to be inferred from the words that follow the expression the Commission shall be deemed to be a Civil Court". It would not be correct to contend that the above expression is full and complete in itself and what follows it only denotes the limitation on the full fledged status and powers of a civil Court that the Commission would otherwise have possessed. If that was the intention of the Legislature, the sentence would have been completed after the words "civil court" and what follows it would have been the subject of a separate sub section or sentence. It is, therefore, clear that under the , the Commission is fictionally a civil court only for the purpose of the contempts punishable under sections 175, 178, 179, 180 and 228 of the Indian Penal Code, 1860, subject to the condition that it has not the right itself to punish the contemners, a right which other Courts possess under Section 480 of the code of Criminal Procedure 1898. Similarly it follows that the fiction relating to the proceedings before the Commission is confined to offenses that are punishable under Sections 193 and 228 of the Indian Penal Code, I860, referred to in sub section (5) of the Act, and does not extend beyond this limit. " PG NO 975 The learned Judge then dealt with a Commission of Inquiry constituted under the and held that the Commission has not the attributes of a Court. In repelling the contention that the function of the Commission being of a advisory nature which was akin to the Judicial Committee to the Privy Council which only advised His Majesty and did not deliver any judgment themselves, as well as distinguishing the decision of the Lahore High Court in M.M. Khan vs Emperor, ILR holding that the Special Commissioners appointed under the constituted a Court within the meaning of section 195, the learned Judge observed: "An enquiry under the Commissions of Inquiry Act, 1952,on the other hand, is of wholly different character. There is no accuser, no accused and no specific charges for trial; nor is the Government under the law, required to pronounce. one way or the other, on the findings of the Commission " The learned Judge relied upon the following observations of the Judicial committee of the Privy Council In re. Maharaja Madhava Singh, LR (1905) 31 IA 239 where the Judicial Committee in dealing with the Commissioners appointed by the Viceroy and the Governor General in Council for the purpose of enquiring into the truth of a certain imputation against the Maharajah, observed: "It is sufficient to say that the Commission in question was one appointed by the Viceroy himself for the information of his own mind, in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity, and was not in any sense a Court, or, if a Court, was not a Court from which an appeal lies to His Majesty in Council. " The learned Judge rightly observed that the ratio decidendi in that case was that the Commissioner were not a Court and held that the observations made by the Judicial Committee apply mutatis mutandis to a Commission of Inquiry constituted under the , and observed: "The Commission in question was obviously appointed by the State Government" for the information of its own mind", in order that it should not act, in exercise of it power, "otherwise than in accordance with the dictates of justice PG NO 976 and equity" in ordering a departmental enquiry against its officers. It was, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature. The two cases are parallel, and the decision must be, as in `In re Maharaja Madhava Singh, (D) ', that the Commission was not a Court. The term `Court ' has not been defined in the . Its definition in the , is not exhaustive and is intended only for purposes of the Act. The , however, does contemplate a 'Court of Justice ' which as defined in section 20, Penal Code, 1860 denotes 'a Judge who is empowered by law to act judicially '. The word `Judge ' is defined in Section 19 as denoting every person "Who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive . ' The minimum test of a `Court of Justice, in the above definition, is, therefore, the legal power to give a judgment which, if confirmed by some other authority, would be definitive. Such is the case with the Commission appointed under the , whose recommendations constitute a definitive judgment when confirmed by the Government. This, however, is not the case with a Commission appointed under the , whose findings are not contemplated by law as liable at any stage to confirmation by any authority so as to assume the character of a final decision. ' We are in agreement with these observations. P.V. Dixit, CJ. speaking for himselt and G.P. Singh, J. In Puhupram & Ors. vs State of Madhya Pradesh & Ors., stated the law thus: "It is not necessary to stress that the inquiry, which the Commission is going to hold, is not an inquiry by a civil or criminal Court and the proceedings thereof are not PG NO 977 judicial proceedings of a Court of law. [See: Chiman Singh vs State, AIR (195]) MB 44; M.V. Rajwade vs Dr. S.M. Hassan, AIR (1954) Nag. 71 and Ram Krishna Dalmia vs Justice `Tendolkar, AIR (l958) SC 538.1 The decision just cited point out what is "Court" and what are judicial proceedings of a Court of law. Judged by the tests laid down in those decisions, there can be no doubt that the inquiry, which the Commission is going to held, is not a judicial proceeding of a Court of law. The Commission has not been asked to give a decision as to the respective rights and liabilities of any person or to punish any wrong. In an inquiry of this nature, there is no issue between parties for the Commission to decide and no defendant or an accused person to be tried. There is no `lis '. " We are satisfied that the decision of the Nagpur High Court in M.V. Rajwade 's case and that of the Madhya Pradesh High Court in Puhupram lay down the correct law. The least that is required of a Court is the capacity to delivery a `definitive judgment '. and merely because the procedure adopted by it is of a legal character and It has power to administer an oath will not impart to it the status of a Court That being so, it must be held that a Commission of Inquiry appointed by the appropriate Government under section 3(1) of the is not a Court for the purposes of section 195 of the Code. In conclusion, we wish to clarify that this judgment of ours will not prevent the State Government from launching a prosecution against the appellant for commission of the alleged offences under sections 193 and 228 of the Indian Penal Code, 1860, if otherwise permissible in law. In the result, the appeal succeeds and is allowed. The judgment and order passed by the High Court are set aside and the proceedings pending in the Court of the Additional Chief Metropolitan Magistrate at Esplanade, Bombay in Criminal Case No. 1121 (W) of 1987 against the appellant for having committed alleged offences punishable under sections 193 and 228 of the Indian Penal Code, 1860 on a complaint filed by the Secretary to the Commission, are quashed. R.S.S. Appeal allowed.

In October 1971 the appellant company entered into an agreement with the Madhya Pradesh Electricity Board, respondent No. 1, for supply of electricity. The quantity of electricity to be supplied varied from time to time. To meet the situation arising out of insufficient generation of electricity, the State of Madhya Pradesh issued two orders. By the Madhya Pradesh Electricity (Supply and Consumption Regulation) Order, 1975 the consumers were asked to reduce their consumption failing which they would have to pay charges at penal rates for excess consumption, without prejudice to the Board 's power to disconnect the supply. By the Generation Order, the consumers who had alternative sources of captive power were required to generate electricity to the maximum extent technically feasible, from their own sources of electricity. After the assessment of their generating capacity, the appellant was directed to generate additional electricity of 2,500 K.W. Sub Clause (iii) of Proviso to clause 3 of the Generation Order provided that if in certain contingencies there was reduction in the generation of electricity by the PG NO 979 consumer, the Board would try to make good the deficit against the appropriate charge for it. Under this provision the appellant, on pleading emergency, was supplied additional energy from time to time. For excess consumption drawn without the Board 's prior approval, the appellant was sent bills at penal rate. The appellant company challenged the demand before the High Court by filing a writ application under Article 226 of the Constitution, which was dismissed by the High Court except for granting some minor reliefs. Before this Court, it was contended by the appellant: (l) There is no sanction in Law for charging at the Penal rate for the electricity consumed beyond what is permissible under the Generation Order. (2) That the assessment of their generating capacity was not made by the authority empowered to do so. i.e. the Divisional Engineer, and (3) that the assessment was based on irrelevant and extraneous considerations Dismissing the appeal, it was, HELD: (1) A perusal of the documents on record, including admissions on the part of the appellant company. furnishes unimpeachable evidence, proving that the assessment of the maximum feasible capacity of the appellant 's capative power sets was duly made in accordance with the Generation Order, and that the Divisional Engineer, who had been authorised by the Generation Order to assess the appellant 's generating capacity, reached the conclusion after personally considering the matter thoroughly. (2) In pursuance of the assessment of the generating capacity the required direction was issued which was acted upon by the parties for a number of years. The Company not only took steps to generate the additional energy as was required of it, it also took advantage of the provisions of proviso (iii) to clause 3 of the Generation Order and benefited by it from time to time. [988A B] (3) The appellant company was fully conscious of the fact that it was consuming electricity beyond its entitlement under the two Orders. For several years the Company was particular to obtain the permission of the Board PG NO 980 for drawing electricity in excess of what it was entitled to by the agreement, as modified by the Regulation Order and the Generation Order, but later, it not only stopped seeking the advance sanction in this regard, it did not even care to inform the Board of the excess drawal. [1001B C;F G] (4) Section 22B of the permits the State Government to issue an appropriate order for regulating the supply, distribution and consumption of electricity. [1010B] (5) The expression "regulate" occurs in other statutes also, as for example, the , and it has been found difficult to give the word a precise definition. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the Court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied. [1010C D] (6) There does not appear to be any doubt that either under section 49(1) of the 1948 Act read with the agreement or under section 49(3) or under both the provisions the respondent Board was fully authorised to levy and to make a demand at a higher rate than the usual tariff.[1014E F] (7) The necessity for issuing the two orders arose out of the scarcity of electricity available to the Board for supplying to its customers. The situation did not leave any option to the Board but to make limited supply of electricity to its consumers. and it must be held to have, in the circumstances,. the right to stagger or curtail the supply. The orders were issued in this background and to make the direction mentioned therein effective it was considered essential to impose sanctions which could take any reasonable from; either disconnection in case of gross violation or the lesser sanction of enhanced tariff. Hence none of the two Orders was illegal or unreasonable. Adoni Cotton Mills vs A.P. State Electricity Board, ; ; State of U.P. v Hindustan Aluminium Corporation, ; and New Central Jute Mills v U.P. State Electricity Board, [1986] Supp. SCC581.

Appeal No. 37 of 1955. Appeal from the judgment and order dated December 7, 1954, of the Jammu and Kashmir High Court in Criminal Misc. No. 76 of 2011. Vir Sen Sawhney, for the appellant. C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar, R. H. Dhebar and T. M. Sen, for the respondents. Sardar Bahadur, for the intervener. December 5. The Judgment of Sinha, C. J., Kapur, Gajendragadkar, Wanchoo and Shah, JJ., was delivered by Sinha, C. J. Subba Rao, J. and Das Gupta, J. delivered separate judgments. SINHA, C. J. This appeal on a certificate of fitness granted by the High Court of Judicature, Jammu and Kashmir, is directed against the judgment and order dated December 7, 1954, in an application under article 32(2A) of the Constitution for issue of. a writ, directions or. order against the Union of India, through the Secretary, Ministry of Defence,, New Delhi, a,% the first respondent and the State of Jammu and Kashmir through the Chief Secretary,, Jammu and Kashmir State, as the second respondent. The petition is based on the following allegations. The petitioner will be referred to as the appellant in the course of this judgment. He was aged 45 years 832 262 days on August 12, 1954. He was holding a regular commission in the Jammu and Kashmir State Forces, which were amalgamated with the Defence Forces of the Union with effect from September 1, 1949. The appellant holding the substantive rank of Lieut. Col. in the amalgamated forces had the right to continue in service until he attained the age of 53 years, which event will happen on November 20, 1961. The Government of India issued a letter dated July 31, 1954, retiring the appellant from the service with effect from August 12, 1954, This decision of the Government of India is not based on any allegations or charge of inefficiency, indiscipline or any other irregularity on the part of the appellant. The aforesaid decision of the Government of India prematurely retiring the appellant is impugned as illegal, unwarranted and discriminatory and as having been made in contravention of article 16(1) of the Constitution. The petition was opposed on behalf of the respondents aforesaid on a number of preliminary grounds of which it is only necessary to mention the first, namely, that the authority against whom the writ is sought, that is to say, respondent No. 1, being outside the territorial limits of the jurisdiction of the Jammu and Kashmir High Court, the same was not maintainable. This preliminary objection was heard by a Division Bench, (Janki Nath Wazir, C. J. and M. A. Shahmiri, J.) Jammu and Kashmir High Court. By its judgment. dated December 7, 1954, the High Court upheld the preliminary objection. The High Court, relying upon the decisions of this Court in Election Commission, India vs Saka Venkata Subba Rao (1) and K. section Rashid and Son vs The Income tax Investigation Commission etc. (2), held that it had no jurisdiction to issue a writ against the first respondent and, therefore, dismissed the petition, but the High Court granted the necessary certificate under article 132 of the Constitution; hence this appeal. The matter was first heard by a Bench of five judges. in the course of hearing it became clear to us that the appellant not only sought to distinguish (1) ; (2) ; 833 the two decisions aforesaid of this Court, but questioned the correctness of those decisions. Hence this larger Bench was constituted in order to examine the correctness of the decisions aforesaid of this Court on the strength of which the High Court had refused to entertain the appellant 's petition, on merits. It has been argued on behalf of the appellant, in the first instance, that the previous decisions of this Court were distinguishable on the ground that they did not, in terms, consider the question whether the Government of India wag amenable to the jurisdiction of the High Court under article 226 or of the Jammu and ' Kashmir High Court under article 32(2A) of the Constitution. that those provisions, on a true construction, would not stand in the way of the appellant, inasmuch as the Government of India has no location and its authority is present throughout the Union territory; that the correct test is whether or not the cause of action arose within the territorial limits of the High Court 's jurisdiction; that the High Court was in error in holding that the term "authority" included a Government. In answer to these contentions on behalf of the appellant, the learned Solicitor General contended that, on a proper construction of the relevant provisions of the Constitution, it is clear that Sastri C. J. 's observations relating to "authority" in the case of Election Commission, India vs Saka Venkata Subba Rao (1) applied with equal force to Government, inincluding the Union Government. The Government of India functions through its officers and, therefore, the location contemplated means the place at which the orders impugned are ordinarily passed. The considerations in a suit with reference to the cause of action for the suit do not stand on the same footing in a writ matter, because the writ has to reach the particular officers of the Government concerned. The expression "in appropriate cases" means that there may be cases where though the Union Government as such is not located within the territorial limits of a High Court yet a writ may be issued against it by the High (1) ; 834 Courts because an officer of the Union Government is functioning within such limits and it is his order which is the subject matter of the controversy. Therefore, it is not in every case that a High Court can issue a writ against the Union. A writ of mandamus, for example, is directed against a particular named person or authority. Similarly, a writ of certiorari is directed against a particular record. Therefore, the writ must issue to someone within the territorial limits of the High Court 's jurisdiction. The question that we have to determine in this case is of far reaching importance and is not a matter of first impression. The question was first raised in this Court in 1952 and was determined by a Constitution Bench in the case of Election Commission, India vs Saka Venkata Subba Rao (1). In that case a writ was applied for in the Madras High Court for restraining the Election Commission from, enquiring into the alleged disqualification of the respondent. A single Judge of the High Court of Judicature of Madras issued a writ of prohibition restraining the Election Commission, a statutory authority constituted by the President of India, with its office permanently located at New Delhi, when the matter was heard by the learned single Judge of the High Court. In the High Court the Election Commission demurred to the jurisdiction of the Court to issue any writ against it on the ground that the Commission was not within the territory in relation to which the High Court exercised jurisdiction, apart from other objections. The learned Judge of the High Court overruled the preliminary objection and decided the case on merits, and issued a writ prohibiting the Commission from ' proceeding with the enquiry. The learned Judge granted the certificate under article 132 that the case involved a substantial question of law as to the interpretation of the Constitution. The Election Commission accordingly came up in appeal to this Court and challenged the jurisdiction of the Madras High Court to issue the writ it had purported to do. This Court overruled the contention on behalf of the respondent which was (1) ; 835 based on the decision of the Privy Council in the Parlakimedi case (1) that the jurisdiction of the High Court to issue a writ is analogous to the jurisdiction of a court to grant a decree or order against persons outside the limits of its local jurisdiction, provided that the cause of action arose within those limits. This Court overruled that contention in these words: "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories ' in relation to which the High Court exercises jurisdiction". The Constitution Bench in that case considered that the language of article 226 of the Constitution was "reasoriably plain" and that the exercise of the power conferred by that Article was subject to a two fold limitation, namely, (1) that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction" and (2) that the person or authority to whom the High Court is empowered to issue the writs must be "within those territories". In other words, the writ of the Court could not run beyond the territories subject to its jurisdiction and that the person or authority affected by the writ must be amenable to the Court 's jurisdiction, either by residence or location within those territories. The second case of this Court, which dealt with this question is K. section Rashid and Son vs The Income Tax Investigation Commission (2). That was a case on appeal from the judgment and order dated August 10, 1950, of the High Court of Judicature, Punjab, at Simla, in a number of miscellaneous matters, in which the High Court had been moved under articles 226 and 227 of the Constitution praying for quashing proceedings started against the appellants under the Taxation on Income (Investigation Commission.) Act (XXX of 1947). It was prayed in the High Court that a writ of prohibition might issue against the Income Tax (1) (1943) L.R. 70 I.A. 129. (2) ; 836 Investigation Commission directing it not to proceed with the investigation of cases referred to it under the provisions of the Act. The writ petitions in the High Court were opposed on behalf of the Commission on a number of grounds, one of them being that the Pun. jab High Court had no jurisdiction to issue the writs prayed for under article 226 of the Constitution, simply because the Commission was located in Delhi. Reliance was placed on behalf of the Commission on the decision of the Privy Council in the Parliament case (1) that the substance of the matter was that the assessees against whom the investigation had been started belonged to U. P. and all the assessment pro ceedings, including reference to the High Court, would lie in Uttar Pradesh. The High Court gave effect to this contention and dismissed the application primarily on the ground that the High Court had no jurisdiction to issue the writ to the Commission. The assessees came up in appeal to this Court, and this Court substantially adopted the reasons given by it in its previous judgment in the case of Election Commission, India vs Saka Venkata Subba Rao (2). It is to be noted that when the High Court of Punjab decided the case, the decision of this Court referred to above had not been given. Relying upon its previous decision, this Court held that the Punjab High Court was in error in holding that it had no jurisdiction to deal with the matter under article 226 of the Constitution. The appeal was dismissed by this Court on other grounds, not material to this case. Learned counsel for the appellant has contended that the two decisions of this Court referred to above are distinguishable from the facts of the present case, inasmuch as in those cases the Election Commission and the Income tax Investigation 'Commission were statutory bodies, which had their location in Delhi, and, therefore, this Court held that the Punjab High Court was the High Court within whose jurisdiction those bodies functioned and had their location and were, therefore, amenable to its jurisdiction. He further contended that the Union Government functioned throughout the territory of India and could (1) (1943) L.R. 70 I.A. 129. (2) ; 837 not be said to be located only in Delhi simply because the capital for the time being was in Delhi. In this connection, strong reliance was placed on the decision of the Full Bench of the Allahabad High Court in Maqbulunnissa vs Union of India (1). That case does lend a great deal of support to this contention on behalf of the appellant. It was held by the High Court in that case that the words "any Government" in article 226(1) of the Constitution clearly indi cated that the Allahabad High Court had jurisdiction to entertain the petition under article 226, not only against the State of Uttar Pradesh, but also against the Union Government for the issue of a writ in the nature of mandamus, directing the Government to forbear from giving effect to the order asking the petitioner to leave India. The ratio of the decision was that, even though the capital of the Government of India is in Delhi, its executive power extends throughout the territory of India and that the real test to determine the jurisdiction would be the residence of the petitioners and the effect of the impugned order upon them. After holding that the High Court had the jurisdiction to entertain the petition, the Court dismissed it on other grounds, not material to this case. The Allahabad High Court distinguished the decision of a Division Bench of the Calcutta High Court dated January 17, 1951, in the case of The Lloyds Bank Limited vs The Lloyds Bank Indian Staff Association (Calcutta Branches) (2) which was unreported till then. In that case, Harries, C. J., speaking for the Court, had held that though article 226 of the Constitution had gone beyond the English practice by providing that writs in the nature of prerogative writs could issue even against a Government, that Government most be located within the territorial limits of the Court which was moved to exercise its power under that Article. He further observed that the Government of India could not be said to be located in the State of West Bengal and, therefore, writs under article 226 could not issue against that Government by the High Court of Calcutta. That (1) I.L. R. (1953) 2 All. 289. (2) I.L.R. 838 decision of the Calcutta High Court was distinguished by the Allahabad High Court on the ground that "the effects of the orders of the Union Government were not operative within the jurisdiction of the Court". It may be added that that decision came up in appeal to this Court in Civil Appeal No. 42 of 1952 but the appeal was dismissed by this Court by its judgment dated April 20, 1952, on other grounds. It will be noticed that when the Allahabad decision, so strongly relied upon by the appellant, was given, the two decisions referred to above of this Court were not there. The Allahabad High Court may not have given that judgment if the two decisions of this Court had then been in existence. The two main questions which arise, therefore, are: (i) whether the Government of India as such can be said to have a location in a particular place, viz., New Delhi, irrespective of the fact that its authority extends over all the States and its officers function throughout India, and (ii) whether there is any scope for introducing the concept of cause of action as the basis of exercise of jurisdiction under article 226. Before, however, we deal with these two main questions, we would like to clear the ground with respect to two subsidiary matters which have been urged on behalf of the appellant. The first argument is that the word "authority" used in article 226 cannot and does not include Government. We are not impressed by this argument. In interpreting the word "authority" we must have regard to the clause immediately following it. article 226 provides for "the issue to any person or authority including in appropriate cases any Government" within those territories. It is clear that the clause "including in appropriate cases any Government" goes with the preceding word "authority", and on a plain and reasonable construction it means that the word " authority" in the context may include any Government in an appropriate case. The suggestion that the said clause is intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government seems to us clearly unsustainable. 839 To connect this clause with the issuance of a writ or order and to suggest that in dealing with cases against Government the High Court has to decide whether the case is appropriate for the issue of the order is plainly not justified by the rules of grammar. We have no hesitation in holding that the said clause goes with the word "authority" and that its effect is that the authority against whom jurisdiction is conferred on the High Court to issue a writ or appropriate order may in certain cases include a Government. Appro priate cases in the context means cases in which orders passed by a Government or their subordinates are challenged, and the clause therefore means that where such orders are challenged the High Court may issue a writ against the Government. The position, therefore, is that under article 226 power is conferred on the High Court to issue to any person or authority or in a. given case to any Government, writs or orders there specified for enforcement of any of the rights conferred by Part III and for any other purpose. Having thus dealt with the two subsidiary points raised before us, we may now proceed to consider the two main contentions which arise for our decision in the present appeal. This brings us to the first question, namely, whether the Government of India as such can be said to be located at one place, namely, New Delhi. The main argument in this connection is that the Government of India is all pervasive and is functioning throughout the territory of India 'and therefore every High Court has power to issue a writ against it, as it must be presumed to be located within the territorial jurisdiction of all State High Courts. This argument in our opinion confuses the concept of location of 'a Government with the concept of its functioning ' A Government may be functioning all over a State or all over India; but it certainly is not located all over the State or all over India. It is true that the Constitution has not provided that the seat of the Government, of India will be at New Delhi. That, however, does not mean ' that the Government of India as such has no seat where it is located. It is common knowledge that the seat of the 840 Government of India is in New Delhi 'and the Government as such is located in New Delhi. The absence of a provision in the Constitution can make no difference to this fact. What we have to see, therefore, is whether the words of article 226 mean that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ? The relevant words of article 226 are these "Every High Court shall have power to issue to any person or authority within those territories. ". So far as a natural person is concerned, there can be no doubt that he can be within those territories only if he resides therein either permanently or temporarily. So far as an authority is concerned, there can be no doubt that if its office is located therein it must be within the territory. But do these words mean with respect to an authority that even though its office is not located within those territories it will be within those territories because its order may affect persons living in those territories? Now it is clear that the jurisdiction conferred on the High Court by article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us therefore that it is not permissible to read in article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence: or location of the person affected can have no relevance on the question of the High Court 's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in article 226 the concept of the place where the order 841 passed has effect in order to determine the jurisdiction of the High Court which can give relief under article 226. The introduction of such a concept may give a rise to confusion and conflict of jurisdictions. Take , for example, the case of an order passed by an authority in Calcutta, which affects six brothers living, say , in Bombay, Madras, Allahabad, Jabalpur, Jodhpur and Chandigarh. The order passed by the authority in Calcutta has thus affected persons in six States. Can it be said that article 226 contemplates that all the six High Courts have jurisdiction in the matter of giving relief under it? The answer must obviously be 'No ', if one is to avoid confusion and conflict of jurisdiction. As we read the relevant words of article 226 (quoted above) there can be no doubt that the jurisdiction conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the order and there can be no question of introducing the concept of the place where the order is to have effect in order to determine which High Court can give relief under it. It is true that this Court will give such meaning to the words used in the Constitution as would help towards its working smoothly. If we were to introduce in article 226 the concept of the place where the order is to have effect we would not be advancing the purposes for which article 226 has been enacted. On the other hand, we would be producing conflict of jurisdiction between various High Courts as already shown by the illustration given above. Therefore, the effect of an order by whomsoever it is passed can have no relevance in determining the jurisdiction of the High Court which can take action under article 226. Now, functioning of a Government is really nothing other than giving effect to the orders passed by it. Therefore it would not be right to introduce in article 226 the concept of the functioning of Government when determining the meaning of the words "any person or authority within those territories". By introducting the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in 842 article 226. There can, therefore, be no escape from the conclusion that these words in article 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located. So far therefore as a natural person is concerned, he is within those territories if he resides there permanently or temporarily. So far. as an authority (other than a Government) is concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories. The seat of a Government is sometimes mentioned in the Constitutions of various countries but many a time the seat is not so mentioned. But whether the seat of a Government is mentioned in the Constitution or not, there is undoubtedly a seat from which the Government as 'such functions as a fact. What article 226 requires is residence or location as a fact and if therefore there is a seat from which the Government functions as a fact even though that seat is not mentioned in the Constitution the High Court within whose territories that seat is located will be the High Court having jurisdiction under AA. 226 so far as the orders of the Government as such are concerned. Therefore, the view taken in Election Commission, India vs Saka Venkata Subba Rao (1) and K.S. Rashid and Son vs The Income tax Investigation Commission (2) that there is two fold limitation on the power of the High Court to issue writs etc. under article 226, namely, (i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction ', that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction, and (ii) the person or authority to whom the High Court is empowered to issue such writs must be "within those territories" which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories, is the correct one. This brings us to the second point, namely, whether (1) ; (2) ; 843 it is possible to introduce the concept of cause of action in article 226 so that the High Court in whose jurisdiction the cause of action arose would be the proper one to pass an order thereunder. Reliance in this connection has been placed on the judgment of the Privy Council in Ryots of Garabandho vs Zamindar of Parlakimedi (1). In that case the Privy Council held that even though the impugned order was passed by the Board of Revenue which was located in Madras, the High Court would have no jurisdiction to issue a writ quashing that order, as it had no jurisdiction to issue a writ beyond the limits of the city of Madras except in certain cases, and that particular matter was not within the exceptions. This decision of the Privy Council does appa rently introduce an element of the place where the cause of action arose in considering the jurisdiction of the High Court, to issue a writ. The basis of the at decision, however, was the peculiar history of the issue of writs by the three Presidency High Courts as successors of the Supreme Courts, though on the literal construction of cl. 8 of the Charter of 1800 conferring jurisdiction on, the Supreme Court of Madras, there could be little doubt that the Supreme Court would have the same jurisdiction as the Justices of the Court of King 's Bench Division in England for the territories which then were or thereafter might be subject to or depend upon the Government of Madras. It will therefore not be correct to put too much stress on the decision in that case. The question whether the concept of cause of action could be introduced in article 226 was also considered in Saka Venkata Subba Rao 's case ( 2 ) and was repelled in these words: "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories ' in relation to which the High Court exercises jurisdiction. " Article 226 as it stands does not refer anywhere to (1) (1943) L.R. 70 I.A. 129. (2) ; 844 the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction. Proceedings under article 226 are not suits; they provide for extraordinary remedies by a special procedure and give powers of correction to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them. These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises juris diction. Is it possible then to overlook this constitu tional limitation and say that the High Court can issue a writ against a person or authority even though it may not be within its territories simply because the cause of action has arisen within those territories? It seems to us that it would be going in the face of the express provision in article 226 and doing away with an express limitation contained therein if the concept of cause of action were to be introduced in it. Nor do we think that it is right to say that because article 300 specifically provides for suits by and against the Government of India, the proceedings under article 226 are also covered by article 300. It seems to us that article 300 which is on the same line as section L76 of the Government of India Act, 1935, dealt with suits as such and proceedings analogous to or consequent upon suits and has no reference to the extraordinary remedies provided by article 226 of the Constitution. The concept of cause of action cannot in our opinion be introduced in article 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from Now Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suit. able constitutional amendment in article 226. But the argument of inconvenience, in our opinion,. cannot 845 affect the plain language of article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it. We have given our earnest consideration to the language of article 226 and the two decisions of this Court referred to above. We are of opinion that unless there are clear and compelling reasons, which cannot be denied, we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Court, unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong. This Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue. In this case our reconsideration of the matter has confirmed the view that there is no place for the introduction of the concept of the place where the impugned order has effect or of the concept of functioning of a Government, apart from the location of its office concerned with the case, or even of the concept of the place where the cause of action arises in article 226 and that the language of that Article is plain enough to lead to the conclusion at which the two cases of this Court referred to above arrived. 'If any inconvenience is felt on account of this interpretation of article 226 the remedy seems to be a constitutional amendment. There is no scope for avoiding the inconvenience by an interpretation which we cannot reasonably, on the language of the Article, adopt and which the language of the Article does not bear. In this view of the matter the appeal fails and is hereby dismissed with costs. SUBBARAO, J. I have had the advantage of perusing the judgment prepared by my Lord the Chief Justice. I regret my inability to agree. I would not have ventured to differ from his weighty opinion but for the fact that the acceptance of the contention of 107 846 the respondents would practically deprive the majority of citizens of our country of the benefit of cheap, expeditious and effective remedy given to them under article 226 of the Constitution against illegal acts of the Union Government. If the relevant provisions are clear and unambiguous, the said contention must prevail however deleterious the effect may be to public interest. But if the words of the Article are capable of two or more interpretations, one that will carry out the intention of the Constituent Assembly and the other that would defeat it, the former interpretation must necessarily be accepted. We must also bear in mind that the provisions of the Constitution are not " mathematical formulae which have their essence in mere form". It being an organic statute, its provisions must be construed broadly and not in a pedantic way, but without doing violence to the language used. The facts have been fully stated in the judgment of my Lord the Chief Justice and it would be redundant to restate them. It would be enough if I formulate the point of law raised and express my opinion thereon. The question is whether the appellant, who is a citizen of India and is residing in the State of Kashmir, can enforce his fundamental right under Art 32(2A) of the Constitution by filing an appropriate writ petition in the High Court of Jammu & Kashmir, if his right is infringed by an order of the Union Government. The Constitution of India has been made applicable to the State of Jammu & Kashmir by the Constitution (Application to Jammu & Kashmir) Order, 1954 (Order No. 48 dated May 14, 1954) with certain exceptions and modifications. By the said Order, cl. (3) of article 32 of the Constitution was deleted, and a new clause (2A) was inserted after cl. The question falls to be decided on a true construction of the said el. (2A) which reads: "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in rotation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within these territories, directions or orders or writs, 847 including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part. " The operative part of this clause is in pari materia with article 226 of the Constitution with the difference that the words "for any other purpose" found in the latter Article are omitted in the former. Though the power of the High Court of Jammu & Kashmir is limited to that extent, in other respects it is as extensive as that of the other High Courts under article 226. The object of the amendment is self evident; it was enacted to enable the said High Court to protect the fundamental rights of the citizens of India in that part of the country. The learned Solicitor General broadly contends that this Court has construed the analogous provisons of article 226 of the Constitution and held that the writs under that Article do not run beyond the territories in relation to which a High Court exercises jurisdiction and that a High Court cannot issue a writ thereunder unless the person or authority against whom the writ is sought is physically resident or located within the territorial jurisdiction of that High Court; and that, therefore, on the same parity of reasoning, the High Court of Jammu & Kashmir cannot issue a writ to run beyond the territories of that State against the Union Government functioning through its officers in New Delhi. Learned counsel for the appellant contends, on the other hand, that neither article 32(2A) nor article 226 bears any such limited construction and that on a liberal and true construction of the said constitutional provisions it must be held that 'the High Court can issue a writ against any Government, including the Union Government, exercising the functions within the territories of a State, if it infringes the right of a person in that State. Before I attempt to construe the provisions of el. (2A) of article 32, I think it would be convenient to trace briefly the history of article 226, for it throws a flood of light on the legislative intention expressed in 848 article 32(2A). In pre independence India the High Courts, other than the High Courts in the presidency towns of Bombay, Calcutta and Madras, had no power to issue prerogative writs; even in the case of the said presidency High Courts the power to issue writs was very much circumscribed; their jurisdiction to issue the said writs was confined only to the limits of their original jurisdiction and the Governments were excluded from its scope. But the framers of our Constitution with the background of centuries of servility, with the awareness of the important role played by the High Court of England in protecting the rights of its citizens when they were infringed by executive action, with the knowledge of the effective and impartial part played by the High Courts in pre independence India within the narrow limits of their jurisdiction to protect the rights of the citizens of our country, with a vision to prevent autocracy raising its ugly head in the future, declared the fundamental rights in Part III of the Constitution, conferred powers on the High Courts to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs for the enforcement of the fundamental rights or for any other purpose. In short, any person of India can approach an appropriate High Court to protect his rights against any person, authority or any Government if his fundamental right or any other right is infringed by the said person, authority or Government. If the contention of the respondents be accepted, whenever the Union Government infringes the right of a person in any remote part of the country. , he must come all the way to New Delhi to enforce his right by filing a writ petition in the Circuit Bench of the Punjab High Court. If a common man residing in Kanyakumari, the southern most part of India, his illegally detained in prison, or deprived of his property otherwise than by law, by an order of the Union Government, it would be a travesty of fundamental rights to expect him to come to New Delhi to seek the protection of the High Court of Punjab. This construction of the provisions of article 226 would attribute to the framers 849 of the Constitution an intention to confer the right on a person and to withhold from him for all practical purposes the remedy to enforce his right against the Union Government. Obviously it could not have been the intention of the Constituent Assembly to bring about such an anomalous result in respect of what they conceived to be a cherished right conferred upon the citizens of this country. In that event, the right conferred turns out to be an empty one and the object of the framers of the Constitution is literally defeated. The scope of article 226 vis a vis the reach of the High Courts ' power has been considered in two decisions of this Court, namely, Election Commission, India vs Saka Venkata Rao (1) and K. section Rashid and Son vs The Income tax Investigation Commission (2). As this Bench of seven Judges is constituted to enable this Court to approach the problem with a fresh mind unhampered by precedents, I propose to scrutinize the provisions of article 32(2A) free from the curbs imposed by the earlier decisions. The core of the Article is discernible in the following clause and phrases: "throughout the territories in relation to which it exercises its jurisdiction", "any Government", "within those territories", "directions or orders or writs, including writs in the nature of habeas corpus, etc. " The wore "throughout the territories, etc." delimit the territorial jurisdiction of the High Courts in the matter of issuing directions or writs. A High Court exercises jurisdiction throughout the State in which it is located. Its writs run only through. out the State and not beyond its territorial limits. The main object of the powers to keep the authorities or tribunals within their bounds and to prevent them from infringing the fundamental or other rights of citizens. At the instance of an aggrieved person it can issue one or other of the writs or orders or directions against the offending authority in respect of an act done or omitted tot be done by it. It is implicit in the, limitation that the impugned act must affect a person or property amenable to its territorial jurisdiction. (1) ; (2) ; 850 This question, in a different context, has been considered by the Judicial Committee of the Privy Council in Ryots of Garabandho vs Zemindar of Parlaki medi (1). There the Board of Revenue situated in the State of Madras under section 172 of the Madras Estates Land Act, 1908, enhanced the rents payable by the ryots in three villages, including Parlakimedi village, in the district of Ganjam in the Northern Circars. The question was whether the Madras High Court had power to issue a writ to quash the order of the Board. of Revenue, as the parties to that litigation were not subject to the original jurisdiction of the Madras High Court. The Judicial Committee held that the Madras High Court had no jurisdiction to issue a writ of certiorari to run beyond the territorial limits of that High Court. When it was contended that, as the Revenue Board was in Madras, the High Court had jurisdiction to quash its order, the Judicial Committee repelled that contention with the follow ing remarks at p. 164: "The Board of Revenue has always had its offices in the Presidency Town, and in the present case the Collective Board, which made the order complained of, issued this order in the town. On the other hand, the parties are not subject to the original jurisdiction of the High Court, and the estate of Parlakimedi ties in the north of the province. . . Their Lordships think that the question of jurisdiction must be regarded as one of substance, and that it would not have been within the competence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of settlement of rents for ryoti holdings in Ganjam between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance." This decision in clear terms lays emphasis on the substance of the matter and holds that mere physical (1) (1943) L.R. 70 I.A. 129. 851 presence of an authority within the jurisdiction of a High Court does not enable that Court to issue writs against the said authority in respect of an order made in a dispute between persons residing outside the territorial jurisdiction of the said High Court. Therefore, a High Court 's jurisdiction to issue an appropriate writ depends on the co existence of two conditions, namely, (i) the cause of action has accrued within the territories in relation to which it has jurisdiction, and (ii) the said authority is "within" the said territories. This interpretation may give rise to a criticism; it may be asked, which High Court could give the relief if the cause of action accrues within the territorial jurisdiction of one High Court and the authority concerned is located within that of another High Court? There may. be statutory authorities with all India jurisdiction, but for convenience located in a particular State. In exercise of the powers conferred under statutes, they may make orders affecting the rights of parties residing in different States. I am prima facie of the view that the said authorities, in so far as their orders operate in a particular territory, will be "within" those territories and the High Court, which exercises its jurisdiction throughout that territory, can issue a suitable writ against the said authorities. This interpretation avoids the anomaly of one High Court issuing a writ against an authority located "within" its territorial jurisdiction in respect of a cause of action accruing in another State or territory over which it has no jurisdiction. But this question does not arise in this case, for we re mainly concerned with the Union Government. Article 226 of the Constitution is expressed in wide and most comprehensive terms. There is no difficulty about. the words "person or authority", but the phrase "including any Government" gives rise to a conflict of opinion. If the framers of the Constitution intended to extend simply the power of the High Court to issue writs only against the Government of the State, they could have stated "or the Government of the State", instead they designedly used the words "any Government" which at first sight appear rather involved but on a deeper scrutiny reveal that the words 852 "any Government" cannot mean only the Government of the State. The word "any" clearly presupposes the existence of more than one Government functioning in a State. Under the Constitution two Governments function in each State. Under article 1, India shall be a Union of States and the territory of India shall comprise, inter alia, the territories of the States. Part 11 provides for one class of citizens, that is, citizens of India. In whatever State a person with the requisite qualifications of a citizen may reside, he is a citizen of India and not of that particular State. All the three departments of the Union as well as the State function in the State; both Parliament and the Legislature of the State make laws which govern the State in respect of matters allotted to them respectively. Both the Union and the State executive powers extend to the. State, and the former is exercised in regard to matters with respect to which Parliament has power to make laws and the latter in regard to matters with respect to which the Legislature of the State has power to make laws: see articles 73 and 162. The Judiciary consists of an hierarchy of courts and all the courts from the lowest to the Supreme Court exercise jurisdiction in respect of a cause of action arising in that State. The demarcation between the Union Government and the State Government is, therefore, not territorial but only : subjectwise and both the Governments function within the State. With this background it is easy to perceive that "any Government" must include the Union Government, for two State Governments cannot administer the same State, though for convenience or as a temporary arrangement, the offices of one State may be located in another State. Then it is asked why the Article confers power to issue writs against any Government only in appropriate cases. There are two answers to this question. Till the Constitution was framed there was no power in a High Court to issue a writ even against the Provincial Government. The Constitution conferred for the first time a power on the High Court to issue a writ not only against the State Government but also the Union Government. As the 853 Union Government has sway over not only the State in question but beyond it, it became necessary to administer a caution that a writ can only be issued in appropriate cases. The High Court 's jurisdiction is limited in the matter of issuing writs against the Union Government, for it cannot issue writs against it in respect of a cause of action beyond its territorial jurisdiction. There may also be a case where the secretariat of one of the State Governments is located in another State temporarily. In such a case also the High Court of the latter State cannot issue writs against that State Government as it is not appropriate to issue such writs, for the cause of action accrues ' within the former State. I have, therefore, no doubt that the words "any Government" must necessarily take in the Union Government. Much of the argument turns upon the words "within those territories". It is said that the Union Government is not within the territories of the State, for its headquarters are in Delhi. The Article does not use the word "headquarters", "resident" or "location". The dictionary meaning of the word "within" is "inside of, not out of or beyond". The connotation of the words takes colour from the context in which they are used. A person may be said to be within a territory if he resides therein. He may also be within a territory if he temporarily enters the said territory or is in the course of passing through the territory. Any authority may be in a territory if its office is located therein. It may also be said to be within a territory if it exercises its powers therein and if it can make orders to bind persons for properties therein. So too a Government may be within a State if it has a legal situs in that State. It may also be said to be within a State if it administers the State, though for convenience some of its executive authorities are residing outside the territory. We must give such meaning to these words as would help the working of the Constitution rather than retard it. To put it differently, can it be said that the Union Government 108 854 is within a particular State? Union Government in the present context means the executive branch of the Government. Where is it located? To answer this question it is necessary to consider what is "Union Government". The Constitution in Part V under the heading. "The Union" deals with separate subjects, namely, the executive, the Parliament and the Union judiciary. Under article 53, the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 74 provides for a council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. By article 77, all executive action of the Government of India shall be expressed to be taken in the name of the President; and el. (3) thereof authorizes the President to make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. Article 73 says that subject to the provisions of the Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any; treaty or agreement. The Constitution nowhere fixes the seat of the Union Government or even that of the President. Shortly stated, the Union Government is the President acting on the advise of the Ministers directly or through officers subordinate to him in accordance with the Constitution and the jurisdiction of the said Government extends, so far as is relevant to the present purpose, to matters in respect of which Parliament has power to make laws. The question that immediately arises is, what is the situs of such a Government? There is no statutory situs. For convenience of administration, the officers of such Government may stay at one place,, or they may be distributed in different places; the President may. reside in one place, the Prime Minister in another, the 855 Ministers in a third place and the officers through whom the President exercises his powers in a place different from the rest. What happens when the Secretariat remains in New Delhi and the President resides for some months in a year in, say,, Hyderabad? Contrary wise, what would be the position if the President stays in New Delhi and the entire or part of the Secretariat or some of the Ministers stay in Hyderabad? It is, therefore, not possible to apply 'the test of residence or location in the absence of any statutory situs. The Union Government has no fixed legal abode; it is present throughout the territories over which it exercises jurisdiction and in respect whereof it can make effective and binding orders in the field allotted to it by the Constitution. The constitutional situs of the Union Government is the entire territories of the Union and it is "within" the territories of India and,, therefore, within the territories of every State. Let us look at the problem from another standpoint. Under article 300 of the Constitution, the Government of India may sue or be sued by the name of the Union of India. The word "sued" is used in a general sense and cannot be narrowly construed in the Constitution as to comprehend only action by way of filing a suit in a civil court. According to Webster, it means to seek justice or right by legal process. Generally speaking, it includes any action taken in a court. The practice followed in the various High Courts and the Supreme Court is also consistent with the wide meaning attributed to it, for writs are filed against the Government of India only in the name of the Union of India. Union of India is a juristic person and it is impossible to predicate its residence in a particular place in the Union. Its presence Synchronizes with the limits of the Union territories. That is the reason why that Order XXVII, rule 3, Code of Civil Procedure, says that in suits by or against the Government instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79 Section 79 of the 856 Civil Procedure Code is in terms analogous to article 300 of the Constitution, and under that section, "In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be (a). in the case of a suit by or against the Central Government, the Union of India, and (b). in the case of a suit by or against a State Government, the State." As the Union of India has no statutory situs, Order XXVII, rule 3, Code of Civil Procedure, exempts its place of residence being given in the plaint or the written statement, as the case may be. The suit by or against the Union Government shall be filed in a court which has jurisdiction to entertain such a suit, having regard to the provisions of sections 15 to 20 of the said Code. On the same analogy, it may be held that the Union of India has no legal situs in a particular place and a writ petition can be filed against it in a place within the jurisdiction of the High Court wherein the cause of action accrues. It is said that the limits of the power to issue a writ are implicit in the nature of a particular writ. What is the nature of the principal writs, namely, habeas corpus, mandamus, prohibition, quo warranto and certiorari? The writ of habeas corpus "is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody". The writ of mandamus "is, in form, a command directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty." An order of prohibition is an order directed to an inferior tribunal forbidding it to; continue with the proceedings pending therein. An information in the nature of a quo warranto lies against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim. A certiorari is directed to an authority "requiring the record of the proceedings in some cause or matter to 857 be transmitted into the High Court to be dealt with there. " (See Halsbury 's Laws of England, Vol. II, 3rd edition). It was asked how could the liberty of a subject be secured, the command be issued, the proceedings of an inquiry be prohibited, the credentials of a person to hold office be questioned, the records of a proceeding be directed to be transmitted to the High Court, if the authority concerned wag located, or the person directed resided, outside. the territorial jurisdiction of the High Court? It was also asked how, if the said authority, or person, disobeyed the order of the High Court, it could be enforced against the said authority or person. On the parity of the same reasoning the argument proceeded that, as the officers acting for the Government of India reside in Delhi, a writ which would become brutum fulmen could not be issued by the High Court. The questions so posed are based on a misapprehension of the relevant provisions of the Constitution. They also mix up the nature of the writs with the procedure in dealing with the writs or enforcing the orders made therein. As I have already indicated, the Article confers a power on the High Court to issue writs against the Union Government. If the said Government is "within the State", is it an answer to it that an officer of the Government dealing with a particular paper or papers is residing outside the territorial jurisdiction of the High Court? If the Union Government is bound by the order of the High Court, the question of service of notice on a particular officer acting for the Government or to enforce an order against him is a matter pertaining to the realm of procedure and appropriate rules calf be framed by the High Court or the requisite law made by the Parliament. If the Union Government disobeys the order it would certainly be liable for contempt of court under the . Even if the con temner happens to be an officer of the said Government residing outside the territorial limits of the High Court, the High Court has ample power to reach him under section 5 of the said Act. 858 The analogy drawn from English law is rather misleading. England is comparatively a small country and it has only one Government functioning throughout the State. The problem that has arisen now could not have arisen in England, for the jurisdiction of the Queen 's Bench Division of the High Court extends throughout England. In England the manner of the exercise of the jurisdiction was also regulated by a procedure brimming with technicalities, but later on simplified by statute. The framers of our Constitution therefore designedly used the words "in the nature of" indicating that they were not incorporating in the Constitution the entire procedure followed in England, for the procedure will have to be evolved having regard to the federal structure of our Government. How can the procedural law of England in the matter of writs be bodily lifted and implanted in India? This Court shall have to put a reasonable construction on the words without being unduly weighed down by the historical background of these writs and construe the Article in such a way, if legally permissible, to carry out the intention of the Constitution makers. That apart, Article 226 of the Constitution is not confined to the prerogative writs in vogue in England. The Article enables the appropriate High Court to issue also directions or orders, and there is no reason why the High Court could not, in an appropriate case, give a suitable direction to, or make a proper order on, the Union Government. Such directions or orders are certainly free from the procedural technicalities of the said writs. I shall now notice briefly the decisions cited at the Bar. The first is the decision of this Court in Election Commission, India vs Saka Venkata Rao(1). There the Governor of Madras referred to the Election Commission, which had its offices permanently located in New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly. The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission (1) [1953] S.C.R. lI44. 859 from enquiring into his alleged disqualification for membership of the Assembly. This Court held that the power of the High Court to issue writs under article 226 of the Constitution was subject to the two fold limitation: (i) that such writs cannot run beyond the territories subject to its jurisdiction; and (ii) that the person or authority to whom the High, Court is empowered to issue writs must be amenable to the jurisdiction of the High Court either by residence or location within the territories subject to its jurisdiction. On that basis the writ petition was dismissed. At the outset it may be noticed that there is one obvious difference between that case and the present one. In that case the respondent was not the Union of India but an authority which could have and had its location in a place outside the Madras State. The present case satisfies both the conditions: the writ does not run beyond the territorial jurisdiction of the High Court, as the Union Government must be deemed to be "within" the said territories; the second condition is also satisfied, as the Union Government, being within the State, is also amenable to its jurisdiction. The next case relied upon by the learned Solicitor General is a converse one. It is the decision of this Court in K. section Rashid & Son vs The Income tax Investigation Commission (1). In that case the Income tax Investigation Commission located in Delhi was investigating the case of the petitioners under section 5 of the Taxation on Income (Investigation Commission) Act 1947, although the petitioners were assessees belonging to Uttar Pradesh and their original assessments were made by the Income tax authorities of that State. It was contended that the Punjab High Court had no jurisdiction to issue a writ under article 226 of the Constitution to the said Commission. This Court, after restating the two limitations on the power of the High Court to issue a writ, held that the Commission was amenable to the jurisdiction of the Punjab High Court and, therefore, the Punjab High Court had jurisdiction to issue the writ. This decision also (1) ; 860 deals with a case of statutory authority located in Delhi and it has no application to the case of the Union Government. The question whether the principles that apply to the Government of India would equally apply to statutory authorities situate in one State but exercising jurisdiction in another, does not arise for consideration in this case; though, as I have already expressed, I am prima facie of the view that there is no reason why they should not. Now coming to the decision of the High Courts, there is a clear enunciation of the relevant principles in Maqbul Un Nissa vs Union of India(1). The Full Bench of the Allahabad High Court directly decided the point now raised before us. The importance of the decision lies in the fact that the learned Judges approached the problem without being oppressed by the decision of this Court in Saka Venkata Rao 's case (2), which was decided only subsequent to that decision. After considering the relevant Articles of the Constitution ' Sapru, J., speaking for the Full Bench, observed at pp. 293 294 thus: "The analogy between a government and a corporation or a joint stock company which has its domicile in the place where its head office is situate is misleading. To hold that the jurisdiction of this Court does not extend to the Union Government as it has its capital at Delhi and must be deemed to have its domicile at Delhi would be to place the Union Government not only in respect of the rights conceded in Part III but for any other purpose also beyond the jurisdiction of all State High Courts except the Punjab High Court. " The learned Judge proceeded to state at p. 294 "In our opinion, the jurisdiction of this Court to intervene under Article 226 depends not upon where the Headquarters or the Capital of, the Government is situate but upon the fact of the effect of the act done by Government, whether Union or State being within the territorial limits of this Court., Adverting to the words "any Government" in article 226, the learned Judge observed at p. 292 thus: (1) I.L.R. (2) ; 861 "They indicate that the founding fathers knew that more than one government would function within the same territory.)) I entirely agree with the observations of the learned Judge, for they not only correctly construe the provisions of article 226 but also give effect to the intention of the Constitution makers. After the decision of this Court in Saka Yenkata Rao 's case (1) the High Court of Madhya Pradesh considered the question in Surajmal vs State of M. P. (2). There, the Central Government rejected an application for a mining lease and the order rejecting the application was communicated to the applicant who was residing in the State of Madhya Pradesh. It was held by the High Court that the writ asked for could not be issued so as to bind the Central Government because, "(a) the Central Government could not be deemed to be permanently located or normally carrying on its business within the jurisdiction of the High Court; (b) the record of the case which the Central Government decided was not before the High Court and could not be made available from any legal custody within the State; (c) the order of the State Government must be deemed to have merged in that of the Central Government; (d) the order of the State Government could not be touched unless the order of the Central Government could be brought before the High Court and quashed. " We are concerned here with the first and second grounds. The learned Chief Justice, who delivered the judgment on behalf of the Full Bench, applied the principle of the decision of this Court in Saka Venkata Rao 's(1) to the Union Government; and for the reasons already mentioned I am of opinion that the decision Is not applicable to the case of the Union Government. The second reason in effect places the procedure 'on a higher pedestal than the substantive law. It is true that in a writ of certiorari the records would be called for; but, if once it is held that the Union Government is within the State within the meaning of article 226 of the Constitution, I do not think why the High Court in exercise (1) ; (2) A.I.R. 1958 M.P. 103, 862 of its constitutional power cannot direct the Union Government to bring the records wherever its officers might have kept them. This second ground is really corollary to the first, viz., that the Union Government is not within the territorial jurisdiction of the High Court concerned. The Bombay High Court in Radheshyam Makhanlal vs The Union of India (1) also held that a writ cannot issue against the Union Government whose office is located outside the territorial jurisdiction of the High Court. Shah, J., applying the principle of the decision in Saka Venkata Rao 's case (2 ) to the Union Government hold that as the office of the Union Government was not located within the State of Bombay, the Bombay High Court could not issue a writ to the Union Government. But section T. Desai, J.,, was not willing to go so far, and he based his conclusion on a narrower ground, namely, that even if the writ was issued it could not be enforced. I have already pointed out that both the grounds are not tenable. The Union Government is within the State of Bombay in so far as it exercises its powers in that State and the High Court has got a constitutional power to issue writes to the Union Government and, therefore, their enforceability does not depend upon its officers residing in a particular place. The foregoing discussion may be summed up in the following propositions: (1) The power of the High Court under article 226 of the Constitution is of the widest amplitude and it is not confined only to issuing of writs in the nature of habeas corpus, etc., for it can also issue directions or orders against any person or authority, including in appropriate cases any Government. (2) The intention of the framers of the Constitution is clear, and they used in the Article words "any Government" which in their ordinary significance must include the Union Government. (3) The High Court can issue a writ to run throughout the territories in relation to which it exercises jurisdiction. and to the person or authority or Government within the said territories. (4) The Union Government has (1) A.I.R. 1960 Bom. (2) ; 863 no constitutional situs in a particular place, but it exercises its executive powers in respect of matters to which Parliament has power to make laws and the power in this regard is exercisable throughout India; the Union Government must, therefore, be deemed in law to have functional existence throughout India. (5) When by exercise of its powers the Union Government makes an order infringing the legal right or interest of a person residing within the territories in relation to which a particular High Court exercises jurisdiction, that High Court can issue a writ to the Union Government, for in law it must be deemed to be "within" that State also. (6) The High Court by issuing a writ against the Union Government is not travelling beyond its territorial jurisdiction, as the order is issued against the said Government "within" the State. (7) The fact that for the sake of convenience a particular officer of the said Government issuing an order stays outside the territorial limits of the High Court is not of any relevance, for it is the Union Government that will have to produce the record or carry out the order, as the case may be. (8) The orders issued by the High Court can certainly be enforced against the Union Government, as it is amenable to its jurisdiction, and if they are disobeyed it will be liable to contempt. (9) Even if the Officers physically reside outside its territorial jurisdiction, the High Court can always reach them under the , if they choose to disobey the orders validly passed against the Union Government which cannot easily by visualized or ordinarily be expected. (10) The difficulties in communicating the orders pertain to the rules of procedure and adequate and appropriate rules can be male for communicating the same to the Central Government or its officers. For the aforesaid reasons, I hold that article 32(2A) of the Constitution enables the High Court of Jammu & Kashmir to issue the writ to ' the Union Government in respect of the act done by it infringing the fundamental rights of the parties in that State. In the result,, I allow the appeal, set aside the order of the High Court and direct ' it to dispose of the 864 matter in accordance with law. The appellant will have his costs. DAS GUPTA, J. I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and Mr. Justice Subba Rao. I agree with the conclusions reached by the Chief Justice 'that the appeal should be dismissed. As, however, I have reached that conclusion by a slightly different process of reasoning I propose to indicate those reasons briefly. The facts have been fully stated in the judgment of My Lord the Chief Justice and it is not necessary to repeat them. It is sufficient to state that the appellant filed an application to the High Court of Jam mu & Kashmir under Article 32(2A) of the Constitution for the issue of an appropriate writ, order or directions restraining the Union of India and the State of Jammu & Kashmir from enforcing an order conveyed in the Government of India 's letter dated July 31, 1954, whereby the Government of India ordered the premature compulsory retirement of the appellant with effect from August 12, 1954. A preliminary objection was raised on behalf of the respondents that Government of India is not a Government within the territorial limits of the jurisdiction of the Jammu and Kashmir High Court and so the application was not maintainable. The High Court accepted this objection as valid and dismissed the application. The sole question in controversy in appeal is whether the High Court had jurisdiction, on the 'facts and circumstances of this case, to issue a writ to the Government of India under article 32(2A) of the Constitution. Article 32(2A) of the Constitution under which the appellant asked the High Court for relief is in the following words: "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government within the territories, directions or orders or writs, 865 including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part. " Except for the fact that "the High Court" in this Article means only the High Court of the State of Jammu & Kashmir, while article 226 of the Constitution refers to all other High Courts and the further fact that power granted by this Article is for the enforcement only of the rights conferred by Part III of the Constitution while article 226 gives power to the High Courts in the Union for the enforcement not only of the rights conferred by Part III but for any other purpose, the provisions of the two articles are exactly the same. Power is given to the High Court to give relief in certain matters by issuing appropriate writs and orders to (1) any person; (2) any authority other than the Government and (3) any Government. The exercise of this power is subject to the existence of the condition precedent that the person or the Government or the authority other than the Government must be "within the territories in relation to which the High Court exercises jurisdiction". A special limitation in respect of the issue of writs or orders to a Government is introduced by the words "in appropriate cases" before the words "any Government". Leaving for later consideration the effect of the words "in appropriate cases" we have first to examine the question: when is a Government within the territories under the jurisdiction of a particular High Court ? On behalf of the first respondent, the Union of India, it is urged that to be within the terri tories under the jurisdiction of a High Court the Government must be located within those territories. It is pointed out that "any person" ' to be within any specified territories has to be present within those territories; an authority other then Government has also, before it can be said to be within any particular territories, a physical existence within those territories by having its office therein. The same requirement of location within the particular territories, it is argued, should apply to the case of Governments. The 866 argument is no doubt attractive and at first sight even plausible. On closer examination however it becomes evident that this argument oversimplifies the problem by slurring over the fallacious assumption that a, Government has a location in the same way as any person or any authority other than Government. Has the Government any location in a similar sense in the same way as a person has a location at any point of time by being present at a particular place or an authority other than the Government can be said to be located at the place where its office is situated ? There is no doubt that when we think of a Government, whether of the States or of the Union we are thinking of the executive organ of the State. The executive power of the Union is under article 53 vested in the President and is to be exercised by him. The executive power of the States is vested in the Governors of the States and has to be exercised by them. Does it follow however that the Government of India is located at the place where the President resides and similarly the Government of each State is located at the place where the Governor resides ? It has to be noticed that while the Constitution contains specific provisions in article 130 as to where the Supreme Court shall sit, no such provision is made as to where the President of India shall reside or exercise his executive power vested in him. article 231 of the Constitution speaks of a principal seat for the High Court of each State. We search in vain however for any mention of any principal seat "for the President of India or the Governors of the States". The fact that the President of India has a special place of residence, the Rashtrapati Bhawan in Delhi and the Governors of States have also special places of residence at some places in the State known as Rai Bhavan is apt to make us forget that the Constitution does not provide for any place 'of residence for the President or Governors. There is nothing to prevent the President of India from having more than one permanent place of residence within the Union. If this happens and places of residence are provided for the President of India in, say, Bombay, Calcutta and 867 Madras in addition to the residence at Delhi, can it be said that the Government of India is located in Delhi when the President of India resides in Delhi, it goes to Calcutta when he resides in Calcutta, it goes to Bombay when the President resides in Bombay and to Madras when the President goes and resides in Madras? This may seem at first sight a fantastic illustration; but when we remember that in fact in the days of British rule, the Viceroy had a permanent place of residence at Simla for part of the year and another permanent place of residence at Calcutta for part of the year before 1911 and after 1911 one permanent place of residence in Delhi and another in Simla, it is easy to see that what has been said above by way of illustration is by no means improbable. If therefore a Government is to be held to be located at the place where the head of the State the President of India in the case of the Government of India and the Governor in the case of each State resides, it may well become impossible to speak of any particular place as the place where the Government is located throughout the year. This may not affect the question of any State Government being within the territories of the High Court of the State. For whatever place the Governor may have for his residence is bound to be within the territories of the State. The position will however become wholly uncertain and difficult as regards the Government of India being within the territorial jurisdiction of any particular High Court. For part of the year it may be, if the residence of the President be the criterion for ascertaining the location of the Government, that the Government of India will be within the territories of one High Court and for other parts of the year in another High Court. It will be wholly unreasonable therefore to accept the test of residence of the President of India for deciding where the Government of India is located. Finding the test of the President 's residence illusory, one may try to say that the Government of India or of a State is situated at the place *here the offices of the Ministry are situated. Under article 77, the President allocated the business of the. Government of India 868 among the Ministers while under article 166 the Governor of a State allocates the business of the Government of a State except business with respect to which the Governor is required to act in his discretion among the Ministers of the State. If therefore it was correct to say that all the Ministers of the Government of India had to perform their functions in respect of the business allocated to them at one particular place, it might be reasonable to say that the Government of India is located at that place. Similarly if all the Ministers of a State had to perform their functions in respect of the business allocated to them at one particular place the Government of the State might well be said to be located at that place. The Constitution however contains no provision that all the Ministers of a State shall perform their functions at one particular place in the State nor that the Ministers of the Union will perform their functions at one particular place in the State. Situations may arise not only in an emergency, but even in normal times, when some Ministers of the Government may find it necessary and desirable to dispose of the business allocated to them at places different from where the rest of the Ministers are doing so. The rehabilitation of refugees from Pakistan is part of the business of the Government of India and for the proper performance of this business there is a Ministry of Rehabilitation for Refugees. It is well known that the Minister in this Ministry has to perform a great portion of his business at Calcutta 'in West Bengal and stays there for a considerable part of the year. Many of the offices of this Ministry are situated in Calcutta. What is true of this Ministry, may happen as regards other Ministries also. Special circumstances may require that some portion of the business of the Minis. try of Commerce be performed at places like Bombay, Calcutta or Madras in preference to Delhi, and if this happens the Minister to whom the business of Government of India in respect of commerce has been allocated will be transacting his business at these places instead of at Delhi. If public interest requires that the greater portion of the business of the Ministry of 869 Defence should for reasons of security or other reasons be carried on at some place away from Delhi the Defence Minister will have to transact its business at that place. It is clear therefore that while at any particular point of time it may be possible to speak of any Ministry of the Government of India being located at a particular place, the Government of India as a whole may not necessarily be located at that place. In my opinion, it is therefore neither correct nor appropriate to speak of location of any Government. Nor is it possible to find any other satisfactory test for ascertaining the location of the Government of India. In Election Commission vs Saka Venkata Subba Rao (1) this Court held that before a writ under article 226 could issue to an authority, the authority must be located within the territories under the jurisdiction of the High Court. There however the Court was not concerned with the case of any Government, and had no occasion to consider whether a Government could be said to have a location. The decision in that case and in the later case of K. section Rashid and Son vs The Income tax Investigation Commission, etc., (2) does not therefore bind us to hold that a Government has a location in the same way as an authority like an Election Commission or an Income tax Investigation Commission. It appear,% reasonable therefore to hold that all that is required to satisfy the condition of a Government being within the territories under the jurisdiction of a High Court is that the Government must be functioning within those territories. The Government of India functions throughout the territory of India. The conclusion cannot therefore be resisted that the Government of India is within the territories under the jurisdiction of every High Court including the High Court of Jammu and Kashmir. The use of the words "any Government" appears to me to be an additional reason for thinking that the Government of India is within the territories under the jurisdiction of the Jammu & Kashmir High Court. "Any Government" in the context cannot but mean (1)[1953] S.C.R. 1144. (2) ; 870 every Government. If the location test were to be applied the only Government within the territories of the State of Jammu and Kashmir would be the Government of Jammu and Kashmir. It would be meaningless then to give the High Court the power to give relief against "any Government" within its territories. These words "any Government" were used because the Constitution makers intended that the High Court shall have power to give relief against the Government of India also. But, contends the respondent, that will produce an intolerable position which the Constitution makers could not have contemplated. The result of the Government of India being within the territories of every High Court in India will, it is said, be that the Government of India would be subjected to writs and orders of every High Court in India. A person seeking relief against the Government of India will naturally choose the High Court which is most convenient to him and so the Government of India may have to face applications for relief as against the same order affecting a number of persons in all the different High Courts in India. If a position of such inconvenience to the Government of India ' though of great convenience to the persons seeking relief, did in fact result from the words used by the Constitution makers, I for one, would refuse to shrink from the proper interpretation of the words merely to help the Government. I do not however think that that result follows. For, on a proper reading of the words "in appropriate cases", it seems to me that there will be, for every act or omission in respect of which relief can be claimed, only one High Court that can exercise jurisdiction. It has first to be noticed that the limitation introduced by the use of these words "in appropriate cases ' has not been placed in respect of issue of writs to persons and to authorities other than government. It has been suggested that the effect of these words is that in issuing writs against any Government the High Court has not got the same freedom as it has when issuing writs against any person or authority other than 871 Government and that when relief is asked against a Government the High Court has to take special care to see that writs are not issued indiscriminately but only in proper cases. I have no hesitation in rejecting this suggestion. It cannot be seriously contemplated for a moment that the Constitution makers intended to lay down different standards for the courts when the relief is asked for against the Government from when the relief is asked for against other authorities. In every case where relief under article 226 is sought the High Court has the duty to exercise its discretion whether relief should be given or not. It is equally clear that in exercising such discretion the High Court will give relief only in proper cases and not in cases where the relief should not be granted. Why then were these words "in appropriate cases" used at all? It seems to me that the Constitution makers being conscious of the difficulties that would arise if all the High Courts in the country were given jurisdiction to issue writs against the Central Government on the ground that the Central Government was functioning within its territories wanted to give such jurisdiction only to that High Court where the act or omission in respect of which relief was sought had taken ' place. In every case where relief is sought under article 226 it would be possible to ascertain the place where the act complained of was performed or when the relief is sought against an omission, the place where the act ought to have been performed. Once this place is ascertained the High Court which exercises jurisdiction over that place is the only High Court which has jurisdiction to give relief under article 226. That, in my view, is the necessary result of the words "in appropriate cases". On behalf of the appellant it Was contended on the authority of the decision of the Privy Council in Ryots of Garabandho vs Zemindar of Parlakimedi (1) that all that is necessary to give, jurisdiction to a High Court to act under article 226 is that a part of the cause of action has arisen within the ';territories in relation to which it exercises jurisdiction. The question whether the cause of action attracts jurisdiction for relief (1) (1943) L.R. 70 I.A. 129. 872 under article 226 of the Constitution as in the case of suits was considered by this Court in Saka Venkata Subba Rao 's Case (1) and the answer given was in the negative. Referring to the decision of the Privy Council in Parlakimedi 's Case (2) this Court pointed out that the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article. Delivering the judgment of the Court Patanjali Sastri C. J. also observed: "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories ' in relation to which the High Court exercises jurisdiction. " This decision is binding on us, and I may respectfully add that I find no reason to doubt its correctness. It is true that in that case the Court had to consider the question of jurisdiction in respect of an authority other than Government. It is difficult to see however why if cause of action could not attract jurisdiction against persons and authorities other than Government it would attract jurisdiction as against a Government. It seems to me clear that the principle of basing jurisdiction on cause of action has not been introduced in the Constitution under article 226 or article 32(2A) of the Constitution. It may seem at first sight that to hold that the High Court within whose jurisdiction the action or omission, complained of took place will have jurisdiction, is in effect to accept the accrual of cause of action as the basis of jurisdiction. This however is not correct. The High Court within. the jurisdiction of which the act or omission takes place, has jurisdiction, not because a part of the: cause of action arose there, but in consequence of the use of the words "in appropriate cases". (1) ; (1) (1943) L.R. 70 I.A. 129. 873 The several cases in the High Court in which the question now before us has been considered have been referred to in the majority judgment and also in the judgment of Mr. Justice Subba Rao and no useful purpose would be served in discussing them over again. For the reasons discussed above I have reached the conclusion that while the Government of India is within the territories of every High Court in India the only High Court which has jurisdiction to issue a writ or order or directions under article 226 or article 32 (2A) against it is the one within the territories under which the act or omission against which relief was sought took place. In the present case the act against which the relief has been sought was clearly performed at Delhi which is within the territories under the jurisdiction of the Punjab High Court and the Jammu and Kashmir High Court cannot therefore exercise its jurisdiction under article 226. In the result, I agree with my Lord the Chief Justice that the appeal should be dismissed with costs. BY COURT. In accordance with the opinion of the majority of the Court, this appeal is dismissed with costs. Appeal dismissed.

The object with which the appellant company was formed was to promote and regulate the business in shares, stocks and securities etc., and to establish and conduct a Stock Exchange in order to facilitate the transaction of such business. Its capital was divided into shares on which dividend could be earned. it provided a building wherein business was to be transacted under its supervision and control. It made rules for the conduct of business of sale and purchase of shares in the Exchange premises. During the assessment year in question the company 's receipts consisted of certain amounts received as admission fee from Members and Authorised Assistants and the question stated to the High Court for its opinion was whether these fees in the hands of the appellant were taxable income. The High Court answered the question in the affirmative. It held that the appellant was not a mutual society, that dividends could be earned on its share capital, that any person could become a share holder but every share holder was not a member unless he paid the admission fee and the real object of the company was to carry on business of exchange of stocks and earn profits. The case of the appellant, inter alia, was that as the amount received as membership fee was shown as capital in the books of the company and there was no periodicity, it should be treated as capital receipt exempt from assessment. 799 Held, that the High Court was right in its decision and the appeals must be dismissed. It was wholly immaterial how the appellant treated the amounts in question. It is the nature of the receipt and not how the assessee treated it that must determine its taxability. AS: Since the fee received on account of Authorised Assisstants fall within the decision of this Court in Commissioner of Income tax vs Calcutta Stock Exchange Association Ltd., , it must be held to be taxable income. The question as to whether the Members ' admission fee was taxable income was to be determined by the nature of the business of the company, its profits and the distribution thereof as disclosed by its Memorandum and Articles of Association and the rules made for the conduct of business. They showed that the income of the company was distributable amongst its shareholders ;is in any other joint stock company, and the body of trading members who paid the entrance fees and share holders were not identical. The element of mutuality was, therefore, lacking. Liverpool Corn Trade Association vs Monks, (1926) 2 K. B. 110, applied. Commissioner of Income tax, Bombay City vs Royal Western India Turf Club Ltd., ; and Styles vs New York Life Insurance Co., ; , referred to.

ORIGINAL JURISDICTION: Civil Appeal No. 900 of 1963. Appeal by special leave from the judgment and order dated April 21, 1961 of the Andhra Pradesh High Court in C.M.P. No. 239 of 1950. WITH Writ Petition No. 146 of 1961. Petition under article 32 of the Constitution of India for the enforcement of the fundamental rights. AND Civil Miscellaneous Petition No. 186 of 1962. Appeal against the order of the Registrar dated November 21, 1961 refusing to receive the petitioner 's application for refund of Court fees. The appellant appeared in person. K.R. Chaudhuri and B.R.G.K. Achar, for the respondent (in C.A. No. 900/63 and W.P. No. 146/1961). 746 The Judgment of Subba Rao, Wanchoo, Hidayatullah and Sikri, JJ. was delivered by Hidayatullah, J. Shah, J. delivered a separate Opinion. Hidayatullah, J. On January 11, 1960, the Advocate General applied to the High Court of Andhra Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under section 2 of the Vexatious Litigation (Prevention) Act 1949 (Madras Act VIII of 1949), on the allegation that Mawle had been "habitually" and without any reasonable ground instituting "vexatious proceedings" in the courts within the cities of Hyderabad and Secunderabad and also in the High Court and appearing in the cases in person; that he was responsible for a considerable amount of litigation or, in other words, that he was a vexatious and habitual litigant. In support of the petition for the invocation of the punitive provisions of the Act, the Advocate General referred to the following cases: (1) In C.R.P. No. 176.5/58 Mawle described the judgment of the lower court as: " . . . shocking to the sense of justice, a grave dereliction of duty, flagrant abuse of fundamental principles of law and the natural justice, full with errors patent on the face, showing a gross manifest injustice done through the tyrannical arbitrary acts. " It was stated that Mawle apologised to the High Court to escape proceedings for contempt of court. (ii) He filed a writ petition No. 1369/18 after the above Civil Revision Petition was dismissed and then preferred an appeal CCCA 42/59. ' (iii) He filed a stay petition against an intended execution before steps were taken and when the petition was dismissed he filed an appeal C.M.A. 86/59 and obtained stay. (iv) He filed an appeal against the dismissal of the writ petition 1369/58. He was thus said to have asked for five remedies in one suit (O.S. 200 of 1958). (v) In an appeal filed on 3 6 1959 he did not pay court fee of Rs. 995 as stamps were not available undertaking to pay the balance which he did not pay. (vi) In S.R. 38516 and S.C.C.M.P. Mawle stated that as he had appeared in person "without any weightage to his submissions though of law, for in the ends of justice, as against the professional privileges claimed by both these veteran advocates (Mr. O.V. Subbanayadu and 747 Mr. Hari Narayanalal) even though they had taken the role of a party, sole witnesses, swearing false affidavits . . ". (vii) In S.R. 12409/59 against decree in O.S. 109/1958, though himself the sole defendant, Mawle caused to be preferred an appeal in forma pauperis by his wife and children, getting the judgments under appeal privately printed and certifying them as true. (viii) C.R.P. No. 1094/59 against the judgment in suit No. 198/2 dismissed against his tenant he filed a revision petition which was dismissed in limini. (ix) C.R.P. No. 988/1959 filed against I.A. 230/58 in O.S. 99/2 of 1957 of the City Civil Court, Hyderabad was dismissed in limini. (x) He has filed S.R. 31845/59 as L.P.A. against an order refusing to review C.R.P. against a Small Cause Suit and S.R. No. 27605/59 as a L.P.A. against an order in a petition refusing to condone the delay in filing a review petition in a C.R.P. (xi) C.R.P. 954/1959 filed against an order in L.R. petition in a Small Cause Suit, originally attempted to be filed as an appeal, C.M.P. 55 18 filed and stay ordered on condition that Mawle should deposit the decretal amount. He then withdrew the C.M.P. (xii) Several criminal matters in High Court. Complaint in Cr. 406/58 and Crl. R.C. 506/59. (xiii) C.M.P. 1858/57 for taking action against the respondent for alleged contempt of court. (xiv) S.R. No. 43198/59, a L.P. Appeal. The Advocate General claimed that though the Act was not extended to the area covered by the former Hyderabad State, it must be treated as the law in force there by reason of the . Mawle was heard on notice and, as was to be expected from a litigant of his sort, flied a fairly long statement in reply denying each accusation and explaining his conduct. He questioned the jurisdiction of the High Court of Andhra Pradesh to take action under the Act as its provisions were not extended to the area comprised in the former State of Hyderabad. He challenged the Act as ultra vires and unconstitutional on the ground that it abridged the right of citizens to seek redress in a court of law. He stated that he was a businessman and a landlord and owned considerable properties in the city of Hyderabad and other cities in the District and the State. He produced a certificate from the District Magistrate. He explained that owing to unpleasant experience he had L/P(D)5SCI 9 748 to take away his work from advocates and since 1952 he had started conducting his own cases. He alleged that he had to recover a couple of lakhs of rupees from his clients/tenants etc. and had, therefore to file a large number of cases. He attempted an explanation of the cases to which the Advocate General had referred in his petition. The High Court by its judgment dated April 21, 1961, now under appeal, held that the Act was both constitutional and intra vires, that the High Court had jurisdiction to make the order and that action under the Act was called for. The High Court ordered that no proceeding, civil or criminal, should be instituted by Mawle in the City of Hyderabad without the leave of the High Court, in the city of Secunderabad, without the leave of the Chief City Civil Judge and elsewhere without the leave of the District and Sessions Judge concerned. A copy of the order of the High Court was published in the Gazette of Andhra Pradesh as required by the Act. Mawle sought a certificate under Articles 132, 133, or 134 of the Constitution but the certificate was refused on the ground that no substantial question of law as to the interpretation of the Constitution or otherwise was involved. The petitioner then applied for and obtained special leave from this Court and filed the present appeal. The Act with which we are concerned, though a copy substantially of 16 and 17 Vict. 30 (now replaced by section 51 of the Supreme Court of Judicature Consolidation Act, 1925:15 & 16 Geo V c. 49) is perhaps the only one of its kind in India. Its provisions are extremely brief and they may be read here: "1. Short title, extent and commencement. (1) This Act may be called the Vexatious Litigation (Prevention) Act, 1949. (2) It extends to the whole of the State of Madras. (3) It shall come into force at once. Leave of court necessary for vexatious litigant to institute proceedings. (1) If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, the High Court may, after giving that person an opportunity of being heard. order that no proceedings, civil or criminal, shall be instituted by him in any Court (i) in the Presidency town, without the leave of the High Court; and (ii) elsewhere, without the leave of the District and Sessions Judge. 749 (2) If it appears to the High Court that the person against whom an application is made under subsection (1) is unable, on account of poverty, to engage a pleader, the High Court may engage a pleader to appear for him. Explanation For the purpose of this section 'pleader ' has the same meaning as in section 2, clause (15) of the Code of Civil Procedure, 1908. Leave to be granted only if prima facie ground exits The leave referred to in section 2, sub sect=on (1), shall not be given in respect of any proceedings unless the High Court or, as the case may be, the District and Sessions Judge, is satisfied that there is prima facie ground for such proceedings. Proceedings instituted without leave to be dismissed. Any proceedings instituted by a person against whom an order under section 2, sub section (IL has been made, without obtaining the leave referred to in that sub section shall be dismissed: Provided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave. (5) Publication of orders. A copy of every order made under section 2, sub section (1) shall be published in the Fort St. George Gazette. " The High Court of Andhra Pradesh has held that it enjoys all the jurisdiction of the former High Court of Madras and thus the provisions of the Act create a jurisdiction in the High Court capable of being exercised in Telangana area even though the Act as such, 'has not been extended to this part of the territory of the State. The High Court also holds that the Act is perfectly valid. In this appeal in addition to questioning the order on the above ground and also merits the appellant contends that the Madras Act itself was invalid inasmuch as it was not covered by any Entry in List II or III of the Government of India Act, 1935 and had not received the assent of the Governor General. This argument is without substance. The Act had received the assent of the Governor General and the subject of the legislation was covered by Entries 2 of List II and 2 and 4 of List III of the Government of India Act, 1935. The next argument of the appellant be fore us is that this Act is unconstitutional because it prevents some citizens from approaching the court and obtaining relief to which everyone is entitled in a State governed by Rule of Law. This argument really invokes article 19 and article 14. The latter Article is invoked because the Act, according to the appellant, seeks to create an unreasonable distinction between litigant and litigant. This argument is also not acceptable to us because the litigants who are to 750 be prevented from approaching the court, without the sanction of the High Court etc., are in a class by themselves. They are described in the Act as persons who 'habitually ' and 'without reasonable cause ' file vexatious actions, civil or criminal. The Act is not intended to deprive such a person of his right to go to a court. It only creates a check so that the court may examine the bona fides of any claim before the opposite party is harassed. A similar Act, passed in England, has been applied in several cases to prevent an abuse of the process of court. In its object the Act promotes public good because it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control, either legislative or administrative. The Act subserves public interest and the restraint which it creates, is designed to promote public good. The Act does not prevent a person declared to be habitual litigant from bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either article 19 or article 14. The next contention of the appellant is that the Act has not been extended to the area of the former State of Hyderabad and the High Court cannot exercise jurisdiction in that area. This contention merits close scrutiny. The High Court has given a history of the evolution of the State and of the High Court of Andhra Pradesh. It is common knowledge that the High Court of Madras was rounded by Letters Patent of 1865 and exercised all original, appellate and other jurisdictions conferred by that Letters Patent. The Act, which was passed by the Madras Provincial Legislature in 1949 conferred jurisdiction upon the Madras High Court to deal with cases of habitual litigants who were persistently filing vexatious actions and were guilty of an abuse of the process of court. This jurisdiction belonged to the High Court of Madras by virtue of the Act and was not an inherent jurisdiction whether as a Court of Record or otherwise. When the State of Andhra was formed in 1953 by the Andhra State Act of 1953, the High Court of Madras ceased to exercise jurisdiction over the territory of the State of Andhra. This jurisdiction was then to be exercised by the High Court of Andhra from a date to be appointed by the President. The jurisdiction of the Andhra High Court was to be the ' same as that of the Madras High Court. Section 30 of the Andhra State Act read as follows: "30. Jurisdiction of Andhra High Court. The High Court of Andhra shall have, in respect of the territories for the time being included in the State of Andhra, all such original, appellate and other jurisdiction as, under the law in force immediately before the prescribed day, is exercisable in respect of the said territories or any part thereof by the High Court at Madras." 751 By virtue of this section the new High Court possessed the same powers and jurisdiction as the original Madras High Court in its territory. But by section 53 of the Andhra Act no change was effected in the territorial extent of the laws and references in all laws to the State of Madras were to be adapted to refer to the new State in its application to the new State of Andhra. In other words, the Act continued to be an Act in force in the Andhra State and the Andhra High Court possessed the same jurisdiction as the former Madras High Court. So far no difficulty can be seen, but it is obvious that the original jurisdiction of the High Court of Madras in the Presidency Town could not be exercised at Guntur and did not follow the High Court. The next change came in 1956 by the . By that Act certain territories were amalgamated with the State of Andhra and prominent among those territories was the former Hyderabad State which for convenience may be referred to here as 'the Telangana Area '. The city of Hyderabad and the city of Secunderabad are in that area. The contained a special provision to limit the territorial extent of the laws in force in the different areas which were combined to form the State of Andhra Pradesh. Section 119 of the provided as follows: " 119. Territorial extent of laws. The provisions of shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies. and territorial reference in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. " The appellant relies upon this provision to state that the area of operation of the Act can only be the former territories of the State of Andhra and the Act is not applicable in the territory comprised in the Telangana Area. The other side contends that by virtue of section 65 the High Court of Andhra Pradesh acquires all the jurisdiction of the High Court of the State of Andhra and therefore it acquires the jurisdiction invested by the Act in the former Andhra High Court. Section 65 of the reads as follows: "65. High Court of Andhra Pradesh. (1) As from the appointed day, (a) the jurisdiction of the High Court of the existing State of Andhra. shall extend to the whole of the territories transferred to that State from the existing State of Hyderabad; 752 (b) the said High Court shall be known as the High Court of Andhra Pradesh; and The question that arises is whether the application of the Act in the Telangana area is made impossible by section 119 of the Act of 1956 or depends upon section 65 of that Act. If the Act under which action is purported to be taken can be said to have operated territorially then it is obvious that the extent of territory in which it was to apply was not only not enlarged by the but under section 119 was kept rigid by limiting it to the territory of the former Andhra State. If, however, that Act created a jurisdiction in the High Court to deal with a particular class of litigants, who were habitually bringing vexatious suits it may be then possible to contend that jurisdiction continues to vest in the High Court of Andhra Pradesh. The High Court has viewed this matter from the latter angle and come to the conclusion that section 65 and not section 119 controls the matter. The argument of the High Court is that the Act controls litigation and creates a new procedure in respect of persons who indulge habitually in vexatious litigation. The Act confers a jurisdiction to put such persons under a procedural restraint and this jurisdiction, the High Court holds. inhered in the former Madras High Court and later in the Madras and the Andhra High Courts separately and now it inheres in the Andhra Pradesh High Court. In the opinion of the High Court, the jurisdiction can be exercised within all the territories subject to the Andhra Pradesh High Court including the Telangana Area, Mr. K.R. Choudhury in supplementing this reasoning points out that the High Court of Madras could take action against any person who acted in a manner to attract the provisions of the Act, irrespective of where the person came from. He contends that a vexatious litigant from Bengal or Bombay could be visited with the punitive provisions of the Act and submits that there is no reason why the Andhra Pradesh High Court cannot control the practice and procedure in the courts of the Telangana area in the same way. According to him, the Act must be treated as extended to the Telangana area as the Andhra Pradesh High Court continues to possess all the jurisdiction of the former Madras High Court. This was also the original plea of the Advocate General in his petition in the High Court, though not apparently accepted by the High Court. We do not accept the argument of Mr. Choudhury. The Madras Act was applied by the legislature only to the Madras Presidency. Suppose it had been applied to one district only. Could the High Court have said that notwithstanding the limited application, it would take action in the other districts of the Madras Presidency? If it could not have extended the territorial limits of the 753 application of the Act in Madras Presidency, the position is not any different now, in view of the provisions of section 119 of the which clearly lay down that no law of one of the amalgamating States is to be extended to the area of the other amalgamating States except by a competent legislative or other competent authority and further that the law shall be construed as restricted to the territories within each State immediately before the Reorganisation. The territorial area is thus not only not enlarged but is frozen. We may now consider whether section 65 of the makes any difference to this position. The Act was designed to control vexatious litigation and it created for the purpose, a new procedure which applied to persons whose visits to courts, as litigants, were not only frequent but were also habitually vexatious. The Act enabled the Advocate General to apply to the High Court and the High Court on being satisfied that a person had been acting in this manner, could make an order that no proceeding there forward was to be filed by that person in the Presidency town without the leave of the High Court and elsewhere without the leave of the District & Sessions Judge. The Act was intended to apply in the whole of the Presidency of Madras including the area carved away from the Presidency of Madras and made into the State of Andhra in 1953 and which is now a part of the State of Andhra Pradesh after 1956. The Act was intended to operate territorially as indeed the clause dealing with the extent of application of the Act itself shows. In its operative part also the order was to be made with a territorial distinction between the Presidency Town and the rest of the Presidency of Madras. The order to be passed under the Act contemplated leave of the High Court before a suit was filed in the Presidency Town and the leave of the District & Sessions Judge elsewhere. It is plain that on its terms the Act cannot apply in the State of Andhra Pradesh atleast in so far as the Presidency Town mentioned in section 2(1)(i) is concerned. That Presidency Town was the city of Madras and therefore section 2(1)(i) of the Act cannot apply in Andhra Pradesh, because there is no Presidency Town in Andhra Pradesh to which section 2(1)(i) can now refer. The distinction between the city of Hyderabad and other parts of the State of Andhra Pradesh has been artificially brought into existence by the High Court by making the order in respect of the city of Hyderabad as if it was a Presidency Town. This is legislation pure and simple and it cannot be undertaken by the High Court. Section 2(1)(i) of the Act can no longer apply without a proper amendment. It may, however, be contended that section 2(1)(ii) can apply and the whole of the new State of Andhra Pradesh may be taken to be governed by sub cl. It would, however, be somewhat strange to make the District & Sessions Judge decide whether a particular litigant should be allowed to move the High Court in appeal, revision or in an original proceeding. The Act is unworkable in the State of Andhra Pradesh without substantial modifications to it. 754 This is not a question merely of procedural jurisdiction as the High Court has reasoned. No doubt the Act as it stood, vested a jurisdiction in the High Court to deal with a particular type of litigant but the Act made the High Court to deal with the matter territorially. It ,is because the territory has changed that the question arises whether the old jurisdiction of the High Court can now ' take in new territory. All laws are intended to operate territorially and no Provincial Legislature in India possessed extra territorial jurisdiction. That the Madras Legislature enacted was to operate in its own territory and it said so in the Act. If new territories are to be governed by the Act it must be extended to the new territories and till it is extended the Act can only operate within the old territories and this is the obvious result of section 119 of the . Thus there are two difficulties in the way of holding that this Act is operative in the TeIangana area of the new State of Andhra Pradesh. To begin with it has not been extended to the area known as the TeIangana area and, till extended, section 119 of the expressly prohibits an extension to the Telangana area by judicial construction. Secondly, there being no Presidency Town as such in the new State of Andhra Pradesh, section 2(1)(i) cannot now be made applicable to the new State of Andhra Pradesh, until some other town is substituted by the Legislature in its place. The mention of the Presidency Town in section 2(1)(i) was not with a view to indicate the seat of the High Court but was so made because the High Court possessed original jurisdiction in that area. The words 'Presidency Town ' might, of course, have been amended to read Hyderabad, the seat of the Andhra Pradesh High Court, but this has not been done. No doubt the court under section 121 of the possesses a power to construe laws by adapting them in such a manner as to facilitate their application to the newly formed State, but the power which is exercisable is only a power of simple adaptation and not a power of legislation. An increase in the territories in which an Act is to apply is dependent on legislation such as is contemplated by section 119 of the . What the High Court has done is more than an adaptation. It has not only substituted the city of Hyderabad for the Presidency town but it has also made the law applicable to Telangana courts contrary to the intendment of section 119 of the . Formerly the seat of the High Court was different and the Act must, on the same reasoning have applied there, so that the words 'Presidency Town ' must have read as Guntur at first and now they read Hyderabad. In our opinion, the High Court was in error in holding that the Act merely created a procedural jurisdiction in the High Court of Madras which on its division into two High Courts, inhered in both the High Courts and continues to inhere in the High Court of Andhra Pradesh even for purposes of areas to which the Act has not been extended. In this 755 view of the matter the order made by the High Court cannot be sustained and it must be discharged. We have not gone into the merits and there is much that justified action against Mawle. He has filed dozens of cases and has flooded courts with litigation often by way of repeated petitions on the same matter. As we find that the Act is not available against him we say nothing more. We may place on record that Mawle expressed his willingness before us to be restrained in his litigation and we hope that he will now make amends for his past conduct. We expect him to behave properly in future. The appeal is allowed but in the circumstances of the case we make no order about costs. Shah, J. The Provincial Legislature of Madras exercising power under the Government of India Act, 1935 enacted the Vexatious Litigation (Prevention) Act 8 of 1949, The material provisions of the Act are: "2. (1) If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings civil or criminal, in any Court or Courts, the High Court may, after giving that person an opportunity of being heard, order that no proceedings, civil or criminal, shall be instituted by him in any Court (i) in the Presidency town, without the leave of the High Court; and (ii) elsewhere, without the leave of the District and Sessions Judge. (2) * * * 3. The leave referred to in section 2, sub section (1), shall not be given in respect of any proceedings unless the High Court or, as the case may be, the District and Sessions Judge, is satisfied that there is prima facie ground for such proceedings. Any proceedings instituted by a person against whom an order under section 2, sub section (1), has been made, without obtaining the leave referred to in that subsection shall be dismissed: Provided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave. A copy of every order made under section 2, subsection (1), shall be published in the Fort St. George Gazette. " 756 By this Act the High Court of Madras was invested with power to place restrictions upon vexatious litigants. The principle of this legislation, it appears, was borrowed from statute 16 & 17 Vict. 30 enacted by the British Parliament. By article 225 of the Constitution, the jurisdiction of the High Court of Madras, subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature remained the same as immediately before the commencement of the Constitution. On September 14. 1953 the State of Andhra was carved out of the territories of the State of Madras by the Andhra State Act 30 of 1953. Section 28 of that Act provided: "(1) As from the 1st day of January, 1956, or such earlier date as may be appointed under sub section (2) there shall be a separate High Court for the State of Andhra." The High Court of Andhra which was constituted by a notification issued by the President had by section 30, in respect of the territories included in the State of Andhra, all such original, appellate and other jurisdiction as under the law in force immediately before the prescribed day was exercisable in respect of the territories or any part thereof by the High Court at Madras. The Andhra High Court was therefore a successor of the High Court of Madras and exercised all the powers and administered the same law which the Madras High Court exercised in the territories comprised in the Andhra State. By section 2(1) of Act 8 of 1949 the High Court of Madras was competent to issue an order against any person that no proceedings, civil or criminal, shall be instituted by him in any Court (i) in the Presidency town without the leave of the High Court, and (ii) elsewhere, without the leave of the D:strict and Sessions Judge; and this power, by virtue of section 30 of Act 30 of 1953 became exercisable by the Andhra High Court. The expression "Presidency town" means by the (section 3(44)). the local limits of ordinary original jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay ,as the case may be, and there was no Presidency town within the area of the Andhra State as constituted by Act 30 of 1953. The Parliament had. however, with a view to meet anomalies of the present nature expressly provided by section 55 that "Notwithstanding that no provision or insufficient provision had been made under section 54 for the adaptation of a law made before the appointed day, any court, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Andhra. * * construe the law with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the court * *. " The expression "Presidency town" must in the context of the constitution of a separate High Court for Andhra, after the State of Andhra was formed, mean 757 the Capital town of the State in which the High Court was located Such an adaptation does not affect the substance of the Act, and it would facilitate application thereof to the changed circumstances. The new State of Andhra Pradesh was constituted under the 37 of 1956 by incorporating certain areas specified in section 3 to the territory of the old State of Andhra. By section 65(1)(a) from the appointed day i,e. November 1, 1956 'the jurisdiction of the High Court of the existing State of Andhra was,, it was declared, to extend to the whole of the territories transferred to that State from the existing State of Hyderabad, the High Court was to be known as the High Court of Andhra Pradesh, and the principal seat of ' the High Court was to be at Hyderabad. The jurisdiction of the High Court of Andhra was by the express provision made in section 65(1)(a) exercisable over the whole of the territory transferred to that State from the existing State of Hyderabad. The phraseology used by the Legislature, in my judgment, authorises the new High Court of Andhra Pradesh to exercise all jurisdiction which the High Court of Andhra could exercise before the appointed day. The High Court of Andhra Pradesh made an order against the appellant on April 21, 1961 that no proceedings, civil or criminal shall be instituted by the appellant in the city of Hyderabad without the leave of the High Court; in the city of Secunderabad without the leave of the Chief City Civil Judge; and elsewhere without the leave of the District and Sessions Judge concerned. This was manifestly a personal direction 'which imposed restrictions upon the appellant. The power to impose a ban under section 2, it may be noticed, vests only in the High Court: the power to remove the ban in specific cases is exercisable by the High Court, or a Judge of the District and Sessions Court according as the proceeding is to be instituted in a Court in the capital of the State where the High Court is located, or in any Court in the mofussil. There can therefore be no question of conflict of jurisdiction between the High Court and the District Court. Once the High Court pronounces an order under section 2, it may be removed in appropriate cases only by the High Court where the proceeding is to be instituted in any Court in the Capital town in which the High Court is located and elsewhere by order of the District and Sessions COurt. The Act confers jurisdiction upon the High Court and does not as a condition of its exercise require that the person to be restrained must be residing or have a domicile in any area within the jurisdiction of the Court invested with jurisdiction. Nor has the order contemplated to be passed any direct territorial operation: it is issued against a person individually and restrains him from instituting proceedings without leave of the Court specified in that behalf. A person wherever residing or domiciled may ' therefore be restrained ,by an order under section 2. 758 But it is said that notwithstanding the comprehensive phraseology used by the Legislature in section 65, because of section 119 of the 37 of 1956 a somewhat anomalous situation has resulted. It is claimed that the power with which the High Court is invested to prevent a litigant from instituting proceedings which are vexatious may be exercised in respect of proceedings to be instituted in courts within the limits of the former State of Andhra or which arise from proceedings decided by Courts in that area. The upshot of the argument is that a litigant may be treated as vexatious only in respect of proceedings to be instituted by him in the Courts of the Districts within the former State of Andhra and in respect of proceedings sought to be brought before the High Court in exercise of its appellate, revisional or superintending jurisdiction from orders made by Courts within the territory of the former State of Andhra: he 'may therefore be subjected to a disability in respect of proceedings to be instituted in some districts in the State and also in respect of proceedings reaching the High Court from cases instituted in those districts, and not in respect of the rest. What the effect of such a view may be upon the exercise of the High Court 's jurisdiction under articles 226 and 227 of the Constitution. or the original jurisdiction, for instance, under the Companies Act or the Banking Companies Act, the appellant who has argued his case personally did not attempt to tackle. Section 119 of the provides: "The provisions of shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. " By that section the territorial extent of the laws in operation prior to the appointed day, until amended by a competent Legislature or other competent authority, continues. But section 119 must be read harmoniously with section 65(1)(a). The latter clause declares in unambiguous terms that the jurisdiction of the High Court of the existing State of Andhra shall extend to the whole of the territories transferred to that State from the existing State of Hyderabad. If it be granted that the High Court of the State of Andhra had jurisdiction to pass orders under the Vexatious Litigation (Prevention) Act, it would be difficult to hold that section 119 of Act 37 of 1956 still restricts the exercise of the power by the High Court to prevent a vexatious litigant from instituting proceedings in certain areas in the mofussil and not in others or from instituting proceedings by way of appeals or revisions from orders and decrees in proceedings instituted in the Courts in the area within the former State of Andhra and not elsewhere. The Parliament having by Act 30 of 1953 invested the 759 High Court of Andhra with authority to exercise all jurisdiction which the High Court of Madras possessed within the territories of the State of Andhra as constituted and thereafter having by section 65(1)(a) of Act 37 of 1956 extended the exercise of that authority over the entire territory of Andhra Pradesh, and in my judgment, it would be impossible to accept the argument that in respect of the jurisdiction conferred by the Vexatious Litigation (Prevent;on), Act 8 of 1949 the High Court was incompetent to pass the order which it did against the appellant. I need not add anything to what Hidayatullah, J., has said in upholding the constitutionality of the provisions of the Act, for 1 agree with him that the Act is not unconstitutional as offending either article 19 or article 14 of the Constitution. On the merits, however, I am of the opinion that the cases which the appellant had instituted in the various Courts did not justify a drastic order of the nature passed against him. The appellant claims that he is the owner of a large estate in the city of Hyderabad, and that is not denied: he also carries on an extensive business and in the course of carrying on his business and managing his estate, he has often to seek recourse to courts of law. The appellant says that because of certain reasons (which need not be set out) he conducts his litigation before the Courts without any professional assistance. Assuming that the appellant has in instituting and prosecuting cases which he had instituted shown less objectivity and more enthusiasm than a lawyer may in similar cases show, and had attempted to obtain benefit of what he thought were lacunas in the law, imposition of a blanket restriction against him of the nature imposed by the High Court may not seem to be warranted. I am unable to agree having carefully considered the nature of the Various cases filed by the appellant or from the general progress of those cases as set out in the list of cases filed in this Court and the orders passed therein that those proceedings are vexatious or frivolous. I would therefore allow the appeal, but not on the grounds which are set out by Hidayatullah, J. Appeal allowed.

Indian section 10 Transfer of Funds from Life Insurance Fund to General Department of composite insurer Permissibility. The appellants were directors of an insurance company which was a composite insurer i.e. one carrying on other classes of life insurance business besides life insurance. Under section 10(1) of the Indian Life , a composite insurer had to keep separate accounts in respect of the different classes of business, and its receipts in respect of life insurance business had to go into a fund called the Life Insurance Fund which could be applied only for the put the Life Insurance business and had always to be sufficient to meet the net liabilities of the Life Insurance business. By resolution dated December 18, 1948, a sum of Rs. 1,10,000 was transferred from the General Department of the company to the Life Department to be added to the Life Fund; if this had not been done the said fund would have shown a deficit in the actuarial valuation report dated July 18, 1949. In the profit appropriation account of the company for the latter year a sum of Rs. 60,000 out of the above sum was written off so that the sum advanced was reduced to Rs. 50,000. A further sum of Rs. 32,000 was again similarly transferred from the General to the Life Department by resolution passed in August 1953. with retrospective effect from December 31, 1952, in order to strengthen the position of the Life Fund which again would have shown a deficit if this had not been done. The advances thus made on both occasions were according to the relevant resolutions repayable only out of the 'valuation surplus ', if any, ' in the life department. On January 8, 1956, the Board of Directors of the company transferred a sum of Rs. 82,000 from the Life Department to the General Department. by way of repayment of the above loans. On January 19, 1956, by Ordinance No. 1 of 1956 the management of the life insurance business of all insurers in the country passed to the Central Government. On September 1. 1956, the Life Insurance Corporation of India came into being under the , and the assets and liabilities of the life insurance business carried on by all insurers became vested in it. The corporation filed an application under section 15 of the said Act before the Tribunal constituted under the Act alleging that transfer of Rs. 82,000 from the Life Department to the General Department of the aforesaid company was without consideration and not for any 665 666 necessity of the life insurance business and prayed for a decree against appellants and the company jointly and severally for the said amount. The Tribunal overruled the defendants ' objections as to its jurisdiction and granted a decree to the Corporation as prayed. The company did not appeal but the appellants came to this Court by special leave. The following contentions were raised on behalf of the appellants; (1) The tribunal had no jurisdiction to proceed with the proceedings on the petition presented by the Corporation without the leave of the High Court in view of section 446 of the , the Company having been ordered to be wound up the High Court on November 9, 1959; (2) In view of section 44(a) of the L.I.C. Act none of the provisions of the Act applied to the company and therefore the Tribunal could not proceed on the application of the Corporation subsequent to the company being wound up; (3) The transfer of Rs. 82,000 from the Life Fund to the General Department of the company was for consideration and was necessary for the life insurance business. HELD: (i) The provisions of section 446 of the did not affect the proceedings before the Tribunal. It is in view of the exclusive jurisdiction conferred upon the company court in sub section (2) of section 446 of the to entertain and dispose of any suit or proceeding by or against a company which is being wound up that provision has been made in subs. (1) of that section that no suit or proceeding shall be filed, or if pending, proceeded with against such a company without permission having been taken from the Court. In view of the provision in section 41 of the L.I.C. Act the company court has no jurisdiction to try matters which a Tribunal under the is empowered to entertain and decide. It could not be disputed that the Tribunal was empowered to try the Corporation 's application under section 15 and the Company Court therefore had no jurisdiction to entertain or decide it. It must follow that the consequential provision of sub section (1) of section 446 would not operate on the proceedings before the Tribunal. [673E G] Further, the provisions of the Special Act i.e. the L.I.C. Act will over ride the provisions of the general Act viz. the which is an Act relating to companies in general. [673H] (ii) The company could not take advantage of the provisions of section 44(a) of the L.I.C. Act. [674D E] Section 44(a) provides that the provisions of the Act will not apply to an insurer whose business is being wound up under orders of court. But the question of the applicability of the Act to a particular insurer is to be considered in relation to facts existing at the time when the Act came into force i.e. July 1, 1956 or on the appointed day, i.e. September 1, 1956, when the assets and liabilities of the controlled insurer of the company stood transferred and vested in the Corporation. The company was not being wound up under orders of Court on the above dates. The L.I.C. Act and therefore section 41 thereof did apply to the company. It could not cease to apply merely because subsequently the company was ordered to be wound up. [673H 674B] Section 44(a) was not applicable to the company for the further reason that when it was ordered to be wound up in 1959 it was not an 'insurer ' within the meaning of that word in section 2(6) since it was not carrying on life insurance business on that date. the said busi 667 ness having been taken over by the Corporation on the 'appointed day ' [674C D] (iii) The Tribunal rightly passed a decree in favour of the Corporation. No question of lending money by one department of the company to the other can ordinarily be contemplated. The assets of the company really constitute one entity even though the company maintains separate accounts with respect to its various insurance businesses. From the facts it was clear that the amounts of Rs. 1,10,000 and Rs. 32,000 had been transferred from the General Department to the Life Fund to meet the deficit in the Life Fund which was likely to occur on both occasions. The circumstances showed that the sum of Its. 82,000 was transferred back to the General Department in a hurry in anticipation of some law depriving the company of its life insurance business. It was moreover a condition of the alleged 'loans ' that they would be repaid only when there. was a 'valuation surplus ' in the Life Fund. There was no such surplus in the Life Fund at the time when the sum was transferred from it the General Department. [674G]

Appeal No. 228 of 1953. Appeal by special leave from the Judgment and Decree dated September 6,1951, of the Bombay High Court in Appeal No. 496 of 1950 from the Judgment and Decree dated March 31, 1950, of the Civil Judge, Senior Division, Kolhapur in Civil Suit No. 23 of 1949. section C. Isaacs, section N. Andley, Rameshwar Nath and J. B. Dadachanji, for the appellant. Achhru Ram, G. A. Desai and Naunit Lal, for respondents Nos. 1 and 2. 1957. February 7. The Judgment of the Court was delivered by section K. DAS J. This is an appeal by special leave from the judgment and decree of the High Court of Bombay dates September 6, 1951, by which the said High Court set aside on appeal the decree passed by the Civil Judge (Senior Division) Kolhapur, in Civil Suit No. 23/49 and allowed an amendment of the plaint at the appellate stage, subject to certain conditions, in the circumstances stated below. The appellant before us was defendant No. 1 in the suit. Respondents 1 and 2 are the heirs of the original plaintiff and respondent No. 3 was defendant No. 2 in the action. In 1942 the original plaintiff filed a suit against respondent No. 3 for possession of the suit properties and obtained a decree in ejectment on March 28, 1944. This decree was confirmed in appeal on July 9, 1945. On a further appeal, the then Supreme Court of Kolhapur affirmed the decree on April 2, 1946. In the meantime, the original plaintiff made an application for execution of the decree but was resisted or 597 obstructed by the present appellant in obtaining possession of the said properties. He then made an application under XXI, r. 97 of the Code of Civil Procedure, complaining of such resistance or obstruction. This application was heard and dismissed under 0.XXI, r. 99 of the Code of Civil Procedure, on April 12, 1947. On March 12, 1948, the original plaintiff instituted the suit (out of which this appeal has arisen) under 0.XXI, r. 103 of the Code of Civil Procedure, for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as the first defendant. Prior to its amendment, the plaint stated: "Defendant No. 2 in collusion with defendant No. 1 caused objection to be submitted against the said execution. The plaintiff had conducted misc.Suit No. 5/1946 for getting possession of the suit properties, getting the objection removed. However, that miscellaneous proceeding has been decided against the plaintiff. Therefore, the plaintiff has filed the present suit for getting declared that the plaintiff has right to take possession of the suit property against defendants Nos.I and 2. " Apart from the decree obtained in the earlier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his title, to the properties in suit as against the appellant. An application was made on behalf of the present appellant on November 20, 1948, in which it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present appellant was not a party. It was then stated: " As the defendant is not a party in the said decree, the plaintiff will not acquire any ownership whatever against the defendant from the said decree. And the plaintiff has not given even the slightest explanation as to how he has ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership". A copy of this application was made over to the learned pleader for the plaintiff who noted thereon as follows: "The plaintiff 's suit is under 0.XXI, r. 103 of the Code of Civil Procedure. Hence relief which can be 598 granted as per this provision may be granted. " An objection was also taken with regard to the description of the suit properties in the schedule. This objection was however met by making the necessary amendment. On December 20, 1949) the present appellant filed his written statement and, inter alia, took the objection that the, suit was not maintainable against him as the plaint disclosed no cause of action so far as he was concerned. A preliminary issue was then struck on January 19, 1950, which raised ' the question whether the suit as framed was tenable against the appellant. When the trial of this issue began, an application was made on March 29, 1950, on behalf of the original plaintiff for permission to give further and better particulars of the claim made in the plaint, and for that purpose the plaintiff wanted to insert a new paragraph as para 1(a) in the plaint and a few sentences in para 3. It is necessary to quote these here, because these were the amendments subsequently allowed by the learned Judges of the High Court of Bombay by their order dated September 6, 1951. The new paragraph was in these terms: " In the Ichalkaranji village there are two independent Patil families 'taxima, viz., Mulki (Revenue) Patil and Police Patil. The suit properties are the Inam lands in the Police, Patil family. A woman by name Bhagirathibai, wife of Shivagonda Patil, was the Navwali 'warchi Vatandar ' (representative Vatandar) of the Police Patil family. This woman died in the year 1936. Due to the death of the woman the plaintiff acquired heirship ownership over the suit property as the near heir. The suit properties were in the possession and under the vahiwat of defendant No. 2 without right. Therefore, the plaintiff filed Suit No. 3/1942 for getting declared his ownership of the suit property and for getting the possession thereof. In Appeal No. 9/44 and Supreme Appeal No. 5/46 preferred therefrom the plaintiff was unanimously declared to be the heir and the owner and the possession of the suit properties had been granted to the plaintiff. " The sentences to be added to paragraph 3 were: " Defendant No. 1 is from the Mulki 599 (Revenue) Patil family. He has nothing to do with the suit property in the Police Patil family. " By his order dated March 31, 1950, the learned Civil Judge rejected the application and on the same day he dismissed the suit on the ground that the plaint made out no case of title against defendant No. 1, appellant before us, who was not a Party to the earlier suit in ejectment in which the plaintiff had obtained a decree against defendant No. 2. From this judgment and decree of the learned Civil Judge an appeal was taken to the High Court of Bombay and the learned Judges of the High Court allowed an amendment of the plaint after putting the plaintiff on terms as to costs, etc. While allowing the amendment the learned Judges observed: " We realise that by doing what we propose to do we may deprive the first defendant of a very valuable right which he claims he has acquired, namely, that of pleading a bar of limitation against the amended plaint, but we are guided more in this matter by regard to the principles of substantial justice and we think that if we can make sufficient compensation to the first defendant by making drastic orders of costs in his favour and against the plaintiff, we shall not be doing any injustice to him. This is, after all, a question of title to the property and we would be justified in making this observation that when the suit in ejectment was filed by Shidgonda against Pirgonda Annappa in the year 1942 he based it on his title to the suit property and it was only against Pirgonda Annappa that he had obtained the decree. When this decree which he had obtained against Pirgonda Annappa, the second defendant, was mentioned as a starting point in the plaint as it came to be filed, it would not be stretching too much of a point in favour of the plaintiff to observe that the decree which he had obtained against the second defendant, having been obtained on the strength of his title to the suit property, was really one of his documents of title. . . . So far as the first defendant was concerned, the averment necessary under 0 XXI, r. 103, of the Code of Civil Procedure, was that the, first defendant was wrongfully obstructing 600 the plaintiff from obtaining possession of the suit property in execution of the decree which he had obtained against the 2nd defendant in a suit regularly constituted in that behalf. This being the position, we think we are not doing any injustice to the first defendant if we allow the plaintiff to amend his plaint even at this late stage by putting in the paragraphs in the plaint as suggested by him in his application for further and better particulars filed in March 1950." The appellant then obtained special leave from this Court, and filed the present appeal. The main point which has been argued before us on behalf of the appellant is that in the circumstances of this case the learned Judges of the High Court were wrong in allowing an amendment of the plaint at such a late stage. It may be stated here that learned counsel for the appellant did not argue that the appellate Court had no jurisdiction or power to allow the amendment. His submission was that even though the appellate Court had such power or ' jurisdiction, that power should not have been exercised in the circumstances of the present case. Two such circumstances were greatly emphasised before us. One was that the period of limitation for a suit under 0.XXI, r. 103, of the Code of Civil Procedure, had already expired before March 29, 1950, on which date the application for amendment or for giving further and better particulars was made. The second circumstance which learned counsel for the appellant emphasised was that the attention of the plaintiff to the defect in the original plaint had been drawn by the application filed on behalf of the appellant on November 20, 1948, and in spite of that application, no amendment war, asked for till March 29, 1950. Both these circumstances were fully considered by the learned Judges of the High Court. It is worthy of note that the period of limitation for a suit under 0.XXI, r. 103 of the Code of Civil Procedure, namely, one year from the date of the adverse order made under r. 99 of 0.XXI, bad expired some time before November 20,1948, on which date the appellant made 601 his first application pointing out the defect in the plaint, the adverse order under 0.XXI, r. 99, having been made on April 12, 1947. The application which the appellant made on November 20, 1948, had not the merit of such beneficent purpose as is now sought to be made out by learned counsel for the appellant. When the application was made, the period of limitation had already expired, and the appellant very clearly said that no permission should be given to the plaintiff to make an amendment thereafter. We do not therefore think that the appellant can make much capital out of the application made on his behalf on November 20, 1948. Recently, we have had occasion to consider a similar prayer for amendment in L. J. Leach & Co. vs Jardine Skinner & Co. (1) where, in allowing an amendment of the plaint in an appeal before us, we said: " It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice." ", These observations were made in a case where damages were, originally claimed on the footing of conversion of goods. We held, in agreement with the learned Judges of the High Court, that on the evidence the claim for damages on the footing of conversion must fail. The plaintiffs then applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non delivery of the goods. The application was resisted by the respondents and one of the grounds of resistance was that the period of limitation had expired. We accepted as correct the decision in Charan Das vs Amir Khan (2) which laid down that " though there was full power to make the amendment, such a power should not, as a rule be exercised where the effect was to take away from a defendant, a legal right which had accrued to him by (1) ; , (2) [1920] L.R. 47 I.A. 255. 602 lapse of time; yet there were cases where such consi derations were outweighed by the special circumstances of the case ". As pointed out in Charan Das ' case (1), the power exercised was undoubtedly one within the discretion of the learned Judges. All that can be urged is that the discretion was exercised on a wrong principle. We do not think that it was so exercised in the present case The facts of the present case are very similar to those of the case before their Lordships of the Privy Council. In the latter, the respondents sued for a declaration of their right of pre emption over certain land, a form of suit which would not lie having regard to the proviso to section 42 of the Specific Relief Act (I of 1877). The trial Judge and the first appellate Court refused to allow the plaint to be amended by claiming possession on pre emption, since the time had expired for bringing a suit to enforce the right. Upon a second appeal the Court allowed the amendment to be made, there being no ground for suspecting that the plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the plaint , and the trial Judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under 0.XXI, r. 103, of the Code of Civil Procedure, had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. Learned counsel for the appellant referred us to the decision in Kisandas Bupchand vs Rachappa Vithoba and placed great reliance on the observations of Beaman J. at P. 655: " In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment ? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs ? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed. " He contended that the first test laid down in the aforesaid observations was not fulfilled in the present case. We do not agree with this contention. First, it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula. Second , we do not think that the " quantity of relief," an expression somewhat difficult of appreciation or application in all circumstances, was in any way affected by the amendments allowed to be made in this case. What happened in the present case was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for; that defect was removed by the amendments. The quality and quantity of the reliefs sought remained the same; whether the reliefs should be granted or not is a different matter as to which we are not called upon to express any opinion at this stage. We think that the correct principles were enunciated by Batchelor J. in his judgment in the same Case, ViZ., Kisandas Rupchand 's case(1), when he said at pp.649 650: "All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. . but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side,, or can it not?" Batchelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of, a partnership agreement they had delivered Rs. 4,001 worth of cloth to, the defendants. The Subordinate Judge found that the plaintiffs did, deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiffs; abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the. recovery of Rs. 4,001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation. For these reasons, we see no I merit in the appeal, which is accordingly dismissed with costs. Appeal dismissed.

Sub r. (1) of r. 1 of O. XVI, Code of Civil Procedure, 1908 casts an obligation on every party to a proceeding to present a list of witnesses whom it proposes to call and to obtain summonses to such persons for their attendance in court; sub r. (2) requires that the party seeking such assistance from the court must make an application stating the purpose for which the witness is proposed to be summoned; and sub r. (3) confers a discretion on the court to permit a party to summon through court or otherwise any witness other than those whose names appear in the list submitted under sub r. (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A of O. XVI enables a party to bring in any witness without applying for summons under r. 1 but this enabling provision is ' subject to sub r. (3) of r. 1. Rule 22 of the "Rules of Procedure and Guidance in the matter of trial of Election Petition under Part Vl of the Representation of the People Act, 1951" of the Punjab and Haryana High Court merely re enacts sub rs. (1) and (2) of r. 1 of o, XVI, C.P.C. Sub section (1) of section 87 of the Representation of the People Act, 1951 makes O. XVI, c. applicable to the trial of election petitions and the proviso thereto gives the High Court the discretion to refuse to examine any witness if it is of the opinion that the evidence of such witness is not material or that the party tendering such witness is doing so on frivolous grounds or with a view to delay the proceedings. The appellant, who was the petitioner in an election petition, had filed an application seeking permission to produce and examine witnesses whose names were set out in the application and the court had passed appropriate orders thereon. When the court was recording the evidence of the appellant he submitted another list of witnesses whom/he had kept present in the court for being examined, but the court rejected the same for two reasons. (i) that the appellant had not mentioned their names in the application made by him earlier; and (ii) that there was no mention of the purpose for which they were being offered for examination. The appellant challenged the validity of the Court 's order. 526 Allowing the appeal, ^ HELD: It is obligatory on the party to a proceeding to file the list of witnesses with the gist of evidence and to make an application for issue of summons as provided in sub rs. (1) and (2) of r. 1, O. XVI only where the party wants the assistance of the court to procure the presence of witnesses; but where the party is in a position to produce its witnesses without the assistance of the court, it can do so under r. 1A irrespective of the fact whether the names of such witnesses are mentioned in the list or not and the court cannot decline to examine them unless it proposes to act under the proviso to sub section (1) of section 87 of the Representation of the People Act, 1951. [531 G H, 532 A] (i) The obligation to file a list of witnesses with the gist of evidence of each witness within the time prescribed under sub r. (1) of r. 1, O. XVI is in respect of those witnesses to procure whose presence the assistance of the court is necessary. And, this ought to be so because the court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the court. If mere omission to mention the name of a witness in the list envisaged by sub r. (1) of r. 1 would enable the court lo decline to examine such a witness, r. 1A would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub r. (1) of r. 1 and who can be produced without the assistance of the court. The marginal note of r 1A reads: "Production of witnesses without summons" and the rule proceeds to enable a party to bring any witness to give evidence or produce documents without applying for summons under r. 1. If it was implicit in r. 1A that it enables the party to examine only those witnesses whose names are mentioned in the list filed under sub r. (1) of r. 1 whom the patty would produce before the court without the assistance of the court, it was not necessary to provide in r. 1A that the party may bring any witness without applying for summons under r. 1. [533 B H] (ii) The contention that r 1A is subject to sub r. (3) of r. 1 and therefore the court must ascertain how far sub r (3) would carve out an exception to the enabling provision contained in r. 1A cannot be accepted. Sub r. (3) of r. 1 and r. 1A operate in two different areas and cater to two different situations. Sub r. (3) of r. 1 confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet is unable to produce him on its own under r. 1A and seeks the assistance of the court under sub r. (3) of r. 1 to procure the presenee of the witness. [534 C E] (ii) Failure to comply with the summons served on a person entails certain consequences in law as provided in r. 10 of O. XVI: the court may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place named therein, or issue a warrant for his arrest with or without bail, or impose a fine on him, or order his property to be attached and sold. In view of these legal consequences ensuing from the issuance of a summons by the court and failure to comply with the same, the scheme of rs. 1 and 1A of O. XVI and r. 22 of the Rules framed by the High 527 Court envisaged the filing of a List only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the court. The advance filling of list is necessary because summoning of witnesses by court is a time consuming process. [532 D H]

l Appeals Nos. 1133 and 11 34 of 1965. Appeal by special leave from the judgment and order dated November 18, 1964 of the Mysore High Court in T. R. C. No. 4 of 11964. R. Venkataram and R. Gopalakrishnan, for the appellant. S.V. Gupte, Solicitor General, R. Ganapathy Iyer, R. H. Dhebar and R. N. Sachthey, for the respondent. The Judgment Of WANCHOO and SIKRI JJ. was delivered by SIKRI J. SHAH J. delivered a dissenting Opinion. Sikri, J. These appeals by special leave are directed against the judgment of the Mysore High Court in a reference under section 27(1) of the Wealth Tax Act (27 of 1957) hereinafter referred to as the Act answering the question "whether the sums of 421 Rs. 4,30,684 and Rs. 4,13,353 being the value of the shares transferred by the assessee to the Sandur Ruler 's Family (Second) Trust could be included in the net wealth of the assessee for the assessment years 1958 59 and 1959 60 under the provisions of Section 4(1)(a) (iii) of the Wealth Tax Act" in favour of the Revenue. The question arose in the following circumstances: The ap pellant. His Highness Yeshwant Rao Ghorpade, hereinafter referred to as the assessee, held 12,750 shares in Sandur Manganese & Iron Ores Ltd. on March 31, 1957. On August 24, 1957, he created two Trusts, one may be called the Charitable Trust and the other the Sandur Rulers Family (Second) Trust may hereinafter be referred to as the Second Trust. The assessee transferred some shares to the Second Trust under conditions contained in the Trust Deed. The Wealth Tax Officer and the Appellate Assistant Commissioner, in computing the net wealth of the assessee on March 31, 1958, and March 31, 1959, the valuation dates respectively for the assessment years 1958 59 and 1959 60, included the value of these shares held by the Trustees under the Second Trust. On appeal, the Appellate Tribunal reversed the decisions of the authorities below and came to the conclusion that the value of the shares could not be taken into consideration in computing the net wealth of the assessee. The Tribunal, however, at the instance of the Department referred the question of law already set out above for the opinion of the High Court. The High Court, as mentioned earlier, answered the question against the assessee. The assessee having obtained special leave, the appeals are now before us. The short question that arises is whether the shares in question held by the Trustees under the Second Trust are held for the benefit of the three minor children mentioned in the Second Trust deed. The answer to this question depends, first, on the interpretation of the words "for the benefit of. . minor child" in section 4(1) (a)(iii) of the Act, and secondly, on whether on the true interpretation of the Second Trust, these assets are held for the benefit of the minor children. Section 4(1)(a)(iii) reads as follows: "4. (1) In computing the net wealth of an individual, there shall be included, as belonging to him. (a)the value of assets which on the valuation date Eire held. (iii)by a person or association of persons to whom such assets have been transferred by the individual otherwise than for adequate consideration for the benefit of the individual or his wife or minor child or". The learned Solicitor General, Mr. Gupte, on behalf of the Revenue, contends that the word "benefit" in this section means A the immediate or deferred benefit. He says that the amendment of the section made by the Wealth Tax (Amendment) Act, 1964 (46 of 1964), which came into force on April 1, 1965, is in 422 effect declaratory. Section 4 of the Amending Act substituted a new clause for the clause set out above. The new clause is: "(iii) by a person or association of persons to whom such assets have been transferred by the individual otherwise than for adequate consideration for the immediate or deferred benefit of the individual, his or her spouse or minor child (not being a married daughter ) or both, or". We are unable to regard the new amendment as declaratory. The amendment makes a deliberate change and the addition of the words "the immediate or deferred benefit" before the words "of the individual", apart from other changes, cannot be called a mere declaratory legislation, and we must construe the word 'benefit ' apart from the amendments made by Act 46 of 1964. It seems to us that the word 'benefit ' in the context means for the immediate benefit of the individual or his wife or minor child. If a property is transferred to Trustees to hold in trust for the life of A and then for B. we cannot hold that the property is held for the benefit of B, during the life time of A. As will appear later, under the Second Trust, the Trustees hold the trust property for the benefit of the Charitable Trust for a number of years before they start holding it for the benefit of the minor children. It is difficult to say that while the property is being held for the benefit of the Charitable Trust, it is also being held for the benefit of the minor children. Coming to the second point, namely, whether the trust pro perty is held for the benefit of the minor children within section 4(1)(a) (iii), it is necessary to carefully consider the terms of the Second Trust Deed, because the High Court has differed from the interpretation placed upon it by the Income Tax Appellate Tribunal. It is common ground that the Trust Deed must be considered as a whole. The preamble to the deed reads as follows: "This Deed of Settlement and Trust is made this 24th day of August 1957 between His Highness Maharaj Shri Yeshwant Rao Hindu Rao Ghorpade, Ruler of Sandur, now residing at Sandur House, Palace Road, Bangalore, hereinafter called the SETTLOR, of the one part, and His Highness Maharaj Shri Yeshwant Rao Hindu Rao Ghorpade, Ruler of Sandur, and Captain Sardar Dattaji Rao Chander Rao Ranavare, both of whom are hereinafter collectively called the TRUSTEES, of the other part: Whereas the SETTLOR is absolutely entitled to the shares, set out and described in Schedules A, B and C hereto as sole and absolute owner thereof; Whereas the SETTLOR had been and is desirous of making a settlement on his two minor sons namely, 423 Rajkumar Shri Shivarao Yeshwantrao Ghorpade, aged 16 years and Rajkumar Shri Venkatrao Yeshwantrao Ghorpade, aged 6 years hereinafter referred to as the First and the Second Beneficiary and on his minor daughter Rajkumari Shri Vijayadevi Yeshwantrao Ghor pade, aged 10 years, hereinafter referred to as the Third Beneficiary, out of natural love and affection towards them of the shares set out in Schedules A, B and C hereto respectively, and with a view to make provision for them; Whereas the SETTLOR intends and desires to give to his aforesaid minor sons and minor daughter, from time to time, further shares or other assets, with the intention that such further shares or other assets be given, should be held in Trust for the said minor sons and minor daughter in the manner in which they have respectively taken the shares set out and described in Schedules A, B and C hereto, as if the further shares or other assets had formed part of the said Schedules. " It is not necessary to set out the last para in the preamble. The learned Solicitor General attaches importance to the recitals in the preamble, but, in our view, the recitals do not assist us in any manner. There is no doubt that the intention of the settlor was to make a settlement on his minor children, but the whole question which arises in this case is whether the settlement made by him is for the benefit of the minor children within section 4(1)(a)(iii). The word "settlement ' is neutral, and the question is what has been settled on the minor children. But there is no doubt that the assessee out of natural love and affection for his minor children created the Trust in question, and that the minor children are the beneficiaries under the Trust. Clauses 1, 2 and 3 of the Trust Deed grant, transfer and convey the shares mentioned in the Schedules. A, B and C to the Trustees. Clause 1 deals with the shares settled for the ultimate benefit of the first beneficiary; clause 2 deals with the shares settled for the ultimate benefit of the second beneficiary, and clause 3 deals with the shares settled for the ultimate benefit of the third beneficiary. These clauses are couched in the same language and it is only necessary to set out clause 1, which is in the following terms: The Settlor doth hereby grant, transfer and convey upto the Trustees the shares set out and described in Schedule A hereto, to have and to hold the same in Trust, both as to the corpus and income therefrom, for a period of two years from the date of this Indenture for the benefit of Shri Yeshwantrao Maharaj Charitable Trust and on the expiry of the said period of two years, to have and to hold the shares set out and described in Schedule A 424 nereto in Trust both as to the corpus and income received after the expiry of the aforesaid period of two years from the date of this Indenture, for the benefit of Rajkumar Shri Shivarao Yeshwantrao Ghorpade, the First Beneficiary herein, as the full absolute and beneficial owner thereof, but subject to the terms and conditions hereinafter set forth. Clause I thus purports to vest the shares in the Trustees and directs, first, that they shall hold the same in trust, both as to corpus and income therefrom, for a period of two years from August 24, 1957, for the benefit of the Charitable Trust, and secondly, that on the expiry of the said period of two years to hold the shares in trust, both as to corpus and income received after the expiry of the aforesaid period of two years from August 24, 1957 for the benefit of the first beneficiary. It seems to us clear from reading this clause in isolation from the other clauses. which will be referred to later, that for the first two years the beneficiary is the Charitable Trust and not the RaJkumar, the first beneficiary. For the first two years there is an express direction that the corpus and the income should be held for the benefit of the Charitable Trust. There was some discussion as to why both the corpus and income are mentioned. The word "income" has been defined in clause 31 of the Deed as follows: "In these presents, the expression 'income ' with reference to any Beneficiary shall mean the income derived from the shares set out and described in the Schedule appropriate to such beneficiary and any income that may be derived from the investment of such income including any income that may be derived from any further shares or other assets that may be transferred either by the Settlor or by any other persons for the benefit of any such beneficiary, including bonus shares, if any. " It appears to us that in view of this definition it was perhaps necessary to mention the word "income" in Clause 1 because the idea of the settlor was that income accruing in the first year should be invested and further returns secured from it. But it is manifest that the Rajkumar, the first beneficiary, had no interest whatsoever in the income accruing during the first two years from the trust properties. It is true that clause I does not direct that the income during the first two years should be handed over to the charitable Trust, but this is made clear in clause 21, which we shall presently consider. The next relevant clause is clause 9 which reads as under: "This Settlement and Trust is hereby declared to be irrevocable and shall take effect immediately and all trusts, settlements and interests granted or created by these presents shall vest in the respective Beneficiaries immediately." 425 Mr. Gupte relied on this clause to show that the interest of the minor children was a vested interest and not a contingent interest. Assuming that it is so, it still does not assist us in answering the question which we have posed above. Assuming the interest to be vested we still have to consider whether the Trustees hold the shares for the benefit of the minor children as on the valuation dates, i.e., March 31, 1958 and March 31, 1959. Clause 21 to which reference was made a short while ago, and the provisos thereto, are as follows. We may mention that the High Court thought that the provisos were irrelevant but in our view they throw a great deal of light on the question before US. The Trustees may, in their absolute discretion, accumulate the income accruing under this settlement to the benefit of Shri Yeshwantrao Maharaj Charitable Trust for a period of two years from the date of this Indenture as respects the shares set out and described in Schedule A hereto and for a period of twelve years from the date of this Indenture as respects the shares set out and 'des cribed in Schedule B hereto and for a period of eight years from the date of this Indenture as respects the shares set out and described in Schedule C hereto. Provided that: (a)The Trustees may, at any time and from time to time, during the aforesaid period of two years from the date of this Indenture, pay to the Trustees of, Shri Yeshwantrao Maharaj Charitable Trust the whole or any part of the income accruing under this settlement in res pect of shares set out and described in Schedule A hereto, during the said period of two years as the Trustees may, from time to time, deem fit and on the expiry of the said period of two years, the Trustees shall pay over to the Trustees of the said Shri Yeshwantrao Maharaj Charitable Trust t he whole or the balance of the said in come as the case may be, and thereupon the Trustees shall stand discharged of all their obligations to the aforesaid Charitable Trust and thereafter the said Chantable ' Trust shall. have no right or claim whatsoever either to the income or the corpus of the said shares set out and described in Schedule A hereto. " Provisos (b) and (c) are in similar terms and deal with the shares set out in Schedule B and Schedule C, respectively, the only difference being about the period during which the income accruing could be paid to the Charitable Trust and the period after which the Trustees 'were under an obligation to pay to the Charitable Trust the whole or the balance of the said income. It seems to us quite clear from clause 21 that the intention of the settlor was that the income from the shares mentioned in 426 Schedule A should be either paid over to the Charitable Trust during the period of two years, or if it is not paid over during the two years, it should be paid over to the Charitable Trust on the expiry of the said two years. Now reading clause 1 and clause 21 with proviso (a) it seems to us that it is the charitable trust which is entitled to the income of the shares in Schedule A during the first two years. Reading clause 2 and clause 21 with proviso (b) it is equally clear that it is the charitable trust which is entitled to the income from the shares set out in Schedule B for a period of 12 years. Further it is manifest that reading clause 3 and clause 21 with proviso (c) it is the charitable trust which is entitled to the income from the shares set out in Schedule C during the first eight years. During these periods the first, second and third beneficiary had no interest whatsoever in that income. The learned Solicitor General says that this may be so if we only consider clauses upto 21, but if we consider clauses 22, 23. 24, 25 and 26, they override the intention manifested until now. Clauses 22, 23 and 24 enable the Trustees to accumulate the income accruing under the settlement to the first, second and the third beneficiary respectively till July 31, 1975. We may only set out clause 22 which deals with the first beneficiary. Clause 22 reads as follows: "The Trustees may in their absolute discretion accumulate the income accruing under this Settlement and Trust to the First Beneficiary herein until the 31st July 1975 and on the aforesaid date shall make over to him all the Trust funds in the possession of the Trustees as may belong to the said Beneficiary. " In our view, clause 22 enables the Trustees to accumulate only the income accruing to the first beneficiary, does not say what income accrues to the first beneficiary. For that we have to look to the other clauses. It is only under the latter part of clause 1 of the Trust Deed that income accrues to the first beneficiary. Clause 25 deals with the eventuality of the first, second or the third beneficiary dying before July 31. It does not really throw much light on the question. The next clause 26, Is important, and Mr. Gupte strongly relies on this clause. This clause reads as follows: "Notwithstanding anything contained in clause 21 to 25 supra, the Trustees shall have full power during the currency of this Settlement and Trust to expend from out of the income accruing under this Settlement to each of the Beneficiaries herein such amount as the Trustees may in their discretion deem fit for, the maintenance, education. health, marriage and advancement of each of the Beneficiaries herein. " 427 Mr. Gupte says that this clause shows that all the previous clauses are a smoke screen to enable the Trustees to spend the money for the benefit of the beneficiaries even during the aforementioned periods of 2, 12 and 8 years, and he says that the non obstante clause overrides everything contained in clauses 21 to 25. There is no doubt that clause 21 is mentioned in the non obstante clause, but we agree with Mr. Venkataraman, the learned counsel for the assessee, that the mention of clause 21 seems to be a typographical mistake, for the meaning of the clause is quite clear that the Trustees cannot under this clause expend from out of the income accruing under the settlement to the charitable trust for their power to spend is limited to the income accruing under the settlement to each of the beneficiaries, and as we have mentioned before while dealing with clause 21, the only income that accrues to the three beneficiaries under the settlement is after it ceases to be accumulated for or given to the Charitable Trust. If we were to accept Mr. Gupte 's argument we would have to omit the words "to each of the Beneficiaries herein" occurring in the clause. Mr. Gupte contends that the word 'beneficiary ' would include the Charitable Trust. We are unable to agree because the latter portion of the clause deals with education, marriage, etc., and these can have reference only to the first, second and the third beneficiary, ie., his minor children. Mr. Gupte urges that it would be natural on the part of the settlor to provide for the maintenance, education, health, marriage and advancement of each of the beneficiaries during their minority, and it would be unnatural to attribute intention to him to leave them without any means of sustenance during their minority. There is no force in this contention. The settlor may well have thought that he would look after the minor children during ,heir minority, and what he wanted to provide was for their expenses after they had attained the age of about 18. It would be recalled that the effect of the earlier provisions is that income starts accruing under the settlement to each of the minor children when they reached the age of about 18. We are accordingly of the opinion that clause 26 does not cut down the interest which had been settled on the Charitable Trust. We may mention that in this connection Mr. Venkataraman drew our attention to the rule of construction laid down by this Court in Sahabzada Mohammed Kamgar Shah vs Jagdish Chandra Deo Dhabal Deo (1) and Ramkishore Lal vs Kamal Narain. (2) In the latter case Das Gupta, J., speaking for the Court, observed as follows: "Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non testamentary instruments, that there is a clear conflict between what is said in one part of the docu ment and in another. A familiar instance of this is where in an earlier part of the document some property is given (1) ; ,611. (2) [1963] Supp. 2 section C.R. 417, 425. 423 absolutely to one person but later on other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahabzada Mohd. Kamgar Shah vs Jagdish Chandra Deo Dhabal Deo(1) It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void. " In our opinion these observations would apply to the facts of this case if it is held that there is conflict between clauses 1 and 21 on the one hand and clause 26 on the other. But, in our view, all these clauses can be read harmoniously by holding that the mention of clause 21 in clause 26 is a typographical mistake, and clause 26 deals only with the income which accrues to the first, second and third beneficiary after the interest of the Charitable Trust has ceased. In conclusion we hold that considering the document as a whole the shares were not held for the benefit of the three minor children as on March 31, 1958 and March 31, 1959. Accordingly the answer to the question referred by the Appellate Tribunal and set out above must be against the Revenue. The appeals are accordingly allowed, judgment of the High Court set aside and the question referred to the High Court answered in the negative. The assessee will be entitled to costs here and in the High Court. One hearing fee. Shah, J. The High Court of Mysore answered the following question referred under section 27(1) of the Wealth Tax Act 27 of 1957 in the affirmative: "Whether the sums of Rs. 4,30,684 and Rs. 4,13,353 being the value of the shares transferred by the assessee to the Sandur. Ruler 's Family (Second) Trust could be in cluded in the net wealth of the assessee for the assessment years 1958 59 and 1959 60 under the provisions of section 4(1)(a)(iii) of the Wealth Tax Act?" The Wealth Tax Bill was moved before the Parliament on May 15, 1957, and was enacted as law after receiving the assent of the President. on September 12, 1957. The two trust deeds which fall to be construed in these appeals were executed on August 24, 1957. The object of the settlor of the two deeds of trust was to (1) ; ,611. 429 evade the charge of wealth tax on the properties covered thereby. It was so found by the High Court, and that was not denied before us. But it is open to a taxpayer to so order his affairs that incidence of tax may lawfully be avoided. Attempts at evading incidence of taxation though not commendable are not illegal. In each case the Court must take the taxing statute as it stands, subject to all its imperfections: If a transaction does not fairly fall within the letter of the law, the Court will not 'Seek to put a strained construction to bring it within the law. The Court will not also stretch a point in favour of the taxpayer to enable him to get by his astuteness the benefit which other taxpayers do not obtain. The two trust deeds were executed on August 24, 1957. One is a trust deed styed "Shri Yeshwant Rao Maharaj Charitable Trust" hereinafter called 'the Charitable Trust ' and the other is styled "The Sandur Ruler 's Family (Second) Trust" hereinafter called 'the Family Trust '. Of both these Trusts, Yeshwant Rao Ghorpade, Ruler of Sandur, is the settlor and the trustees are the settlor and Captain Sardar Dattaji Rao Chender Rao Ranavare. Under the Charitable Trust the income and all the assets of the Trust funds are liable to be utilised for advancement of knowledge, education, health, safety or any other object of general public utility or beneficial to mankind. The settlor is to be the Chairman of the Board of Trustees during his lifetime and he has power to fill up the vacancy in the office of a trustee. In case of his death, the Ruler of Sandur for the time being, is entitled to fill the vacancy of the office of trustee. Under this deed no property is settled for the Trust. By cl. 3 the assets and the funds of the Trust are to be such sums as the Founder Trustees may contribute or in any manner provide to the Trust, such sums or assets as may be contributed, gifted or donated by any person or company to the Trust, all interest or income arising out of the said sums and assets, all assets, that may be purchased or acquired from out of the said funds or otherwise acquired for. the Trust, all investments and realisations therefrom out of the said funds, and assets, and all sums and assets which have by any means become the property of the Trust. By cl. 4 the trustees are authorised to accept any donation or other sums of money or other assets from any person or company subject to any special conditions as may be agreed upon, but not so as to be inconsistent with the intent and purposes of the Trust. Simultaneously with the Charitable Trust, the Family Trust was executed. Initially the settlement was to operate in respect of 30 ordinary shares of the Sandur Manganese and Iron Ores (Private) Ltd., ten shares described in Sch. A to be held in trust for the benefit of Rajkumar Shivarao, the First Beneficiary, ten shares described in Sch. B to be held in trust for the benefit of Rajkumar Venkatrao, the Second Beneficiary and the remaining ten shares described in Sch. C to be held in trust for the benefit of Rajkumari Vijayadevi, the Third Beneficiary. By paragraph 2 of the preamble it is declared that the settlor was desirous of making a settlement "on his 430 two minor sons, namely Rajkumar Shri Shivarao Yeshwantrao Ghorpade, aged 16 years, and Rajkumar Shri Venkatrao Yeshwantrao Ghorpade, aged 6 years and on his minor daughter Rajkumari Shri Vijayadevi Yeshwantrao Ghorpade, aged 10 years out of natural love and affection towards them and with a view to make provision for them", and by the third paragraph of the preamble it was declared that the settlor intended and desired to give to his minor sons and daughter from time to time further shares or other assets, with the intention that such further shares or other assets should be held in trust for the minor sons and daughter to be taken by them as set out and described in Schedules A, B & C. as if such shares or other assets had formed part of the said Schedules. The primary intention disclosed by the preamble of the deed of trust was that the settlor settled properties described in Schedules A, B & C and declared his intention to settle other properties in future with the object of making provision for his three named children. The quantum of the estate settled must undoubtedly be determined by the habendum clause, but the preamble may in case of ambiguity be resorted to for ascertaining the object of the deed and the intention of the executant. By the first clause the settlor conveyed to the trustees the shares described in Sch. A, and to hold the same in trust "both as to the corpus and income therefrom for a period of two years from the date of this Indenture for the benefit of" the Charitable Trust "and con the expiry of the said period of two years, to have and to hold the shares set out and described in Sche dule A in Trust both as to the corpus and income received after the expiry of the period of two years for the benefit of" the First Beneficiary "as the full, absolute and beneficial owner thereof, but subject to the terms and conditions hereinafter setforth". Similarly the shares described in Sch. B were conveyed for twelve years for the benefit of the Charitable Trust and thereafter for the benefit of the Second Beneficiary, and by cl. 3 the settlor conveyed the shares described in Sch. C for a period of eight years for thebenefit of the Charitable Trust and thereafter to the Third Beneficiary By cl. 4 it is declared that other shares or assets given to all or any of the beneficiaries and transferred to the trustees will be held in trust for all or any of the beneficiaries as may in accordance with the settlement and trust be specified, and subject to the same limitations, interests and conditions as relate to the shares specified in Schedules A, B & C, as if those other shares or assets so transferred had formed part of the Schedule A, B & C as may be specified by the settlor or such other person. Clause 31 of the deed of trust dens tie expression "income" with reference to any beneficiary as meaning income derived from the shares set but and described in the Schedule appropriate to such beneficiary and any income that may be derived from the investment of such income including any income that may be derived from any further shares or other assets that may be transferred for the benefit of any such beneficiary. 431 The scheme of cls. 1, 2, 3 & 4 of the Family Trust may first be examined. The shares initially settled and any other shares or assets subsequently settled for the benefit of the beneficiaries or any of them are by cl. 4 to be dealt with as if they formed part of the three Schedules. The Charitable Trust is to obtain the benefit of the property in Schs. A, B & C both as to the corpus and income,, approximately for the periods during which the three beneficiaries do not attain their respective ages of eighteen years, and income therefrom is to be held for the benefit of the Charitable Trust and on the expiry of the periods mentioned, the shares and the assets are to be held in trust both as to the corpus and income therefrom for the benefit of the First, Second or the Third Beneficiary. The scheme devised by the settlor is that during the minority of each beneficiary the property in Schedules A, B & C qua each beneficiary is to remain vested in the trustees for the benefit of the Charitable Trust, and after expiry of the period specified the corpus and income is to be held for the full, absolute and beneficial ownership of the respective beneficiaries. By cls. 6, 7 & 8 provision is made for appointment of trustees. It may suffice to mention that the settlor during his lifetime is to be the trustee and has in case of vacancy power to appoint new trustee by writing or by will, and by cl. 10 the custody of the Trust assets and every portion thereof is to remain with the settlor and the trustees have full power to alter the investments in their absolute discretion. Clause 9 reads as follows: "This Settlement and Trust is hereby declared to be irrevocable and shall take effect immediately and all trusts, settlements and interests granted or created by these presents shall vest in the respective beneficiaries immediately. " It is not clear whether in cl. 9 the charity is intended to be designated as a beneficiary. From the Schedules and cls. 1, 2 & 3 it appears that the beneficiaries were to be the three children of the settlor. Even granting that charity was intended to be a beneficiary within the meaning of cl. 9, the instrument vests the interests granted or created in the respective beneficiaries immediately on execution, and therefore the interest which endures to the three children of the settlor under the instrument vests in them immediately. By cl. 21 it is directed that the trustees may, in their absolute discretion. accumulate the income accruing under the settlement for the benefit of the Charitable Trust for a period of two years from the date of the indenture as respects the shares set out and described in Sch. A, for a period of twelve years as respects the shares set out and described in Sch. B and for a period of eight years as respects the shares set out and described in Sch. The direction is not obligatory, but permissive. By the first proviso the trustees are authorised to pay at any time, and from time to time, during the period of two years, to the trustees of the charity the whole or any part of the income accruing under the settlement in respect of shares 432 set out in Sch. A. and on the expiry of the said period the trustees are enjoined to pay over to the trustees of the charity the whole or the balance of the income as the case may be, and thereupon the trustees stand discharged of all their obligations to the charity. Similar provision is made by provisos (b) & (c) with regard to payment of income from the shares during the period (A twelve years in respect of shares set out in Sch. B and during the period of eight years in respect of shares described in Sch. C. Prima facie this may indicate that the income to be received from the shares is to be applied for the benefit of charity in respect of the shares set out in Schedules A, B & C during the specified periods and that the children of the settlor are not to have any interest in that income. By cls. 22, 23 and 24 an absolute discretion is conferred upon the trustees to accumulate the income until July 31, 1975 in respect of the shares mentioned in each of the Schedules and on the expiry of that period to make over to the Trust funds as may belong to the beneficiaries. This is clearly intended to maintain the control of the settlor over the properties settled in trust till July 31, 1975. By cl. 25 it is directed that the trustees shall have control over the trust funds and the income, even if any of the beneficiary dies before July 31, 1975. Clause 26 provides: "Nothwithstanding anything contained in clauses 21 to 25, supra, the Trustees shall have full power during the currency of this Settlement and Trust to expend from out of the income accruing under this Settlement to each of the Beneficiaries herein such amount as the Trustees may in their discretion deem fit for the maintenance, education, health, marriage and advancement of each of the Beneficiaries herein. " Clause 26 confers upon the trustees full power during the currency of the settlement and trust to expend the income accruing under the settlement to each of the beneficiaries therein for the maintenance, education, health, marriage and advancement of the beneficiaries. This power is exercisable notwithstanding any provision to the contrary made in cls. 21 to 25. It may be recalled that cl. 21 confers upon the trustees power either to use the income accruing under the trust for the benefit of Trust during the period prescribed, or to accumulate the income and deliver it on the expiry of the periods specified to the trustees of the Charitable Trust. But by cl. 26 the trustees under this trust are competent to expend the income not for charity, nor to pay it over to the trustees of the Charitable Trust, but for maintenance, education, health, marriage and advancement of the beneficiaries. The relevant provisions of the Wealth Tax Act may now be surmmarised. By section 3 wealth tax is charged for every financial year commencing on and from April 1, 1957, on the net wealth on the 433 corresponding valuation date, on every individual, Hindu undivided family. and company. By section 4, net wealth is to include certain assets. Clause (1)(a)(iii) of section 4 provides that: "In computing the net wealth of an individual, there shall be included, as belonging to him (a) the value of assets which on the valuation date are held. (iii)by a person or association of persons to whom such assets have been transferred by the individual otherwise than for adequate consideration for the benefit of the individual or his wife or his minor child. " Section 5 provides for exemptions of certain assets in the computation of net wealth. It provides insofar as it is material that: "Wealth tax shall not be payable by an assessee in respect of the following assets and such assets shall not be included in the net wealth of the assessee (i)any property held by him under trust or other legal obligation for any public purpose of a charitable or religious nature in India." Under the instrument of Family Trust the assets included in the Schedules A, B & C were on the valuation date held by an association of persons and those assets were transferred by the settlor otherwise than for adequate consideration ' But says the settlor, on the valuation date the assets were not held for the benefit of himself, his wife or minor children, since, they were held both as to corpus and income for the benefit of charity during the minority of his children. If on a true interpretation of the deed this plea be correct, the assets are not liable to be included in the net wealth of the settlor for the levy of wealth tax. I agree with counsel for the settlor that the amendment made in section 4(1) (a) (iii) by Act 46 of 1964 which sought to include in the computation of net wealth, assets transferred for "the immediate or deferred benefit of the individual, his or her spouse, or minor child" is not declaratory of preexisting law. Under the clause as originally enacted, assets transferred for the immediate benefit of the individual, his wife or minor children alone may be included in the net wealth of the individual, and the liability of the settlor must be determined under the provision as it stood enacted in 1957. The question then is: Are the assets transferred by the settlor under the Family Trust instrument for the immediate benefit of his minor children? That question can only be answered on a determination of the total effect of the instrument in the light of the diverse clauses. By the Family Trust the primary intention of the settlor as disclosed in the preamble is to make provision for his children, and 434 for that purpose property is set apart by the Schedules read with cls. 1, 2 & 3. By cl. 4 it is contemplated that other property will also be settled for the benefit of the children of the settlor. By cl. 9 the interest created under the deed vests immediately in the beneficiaries and by cl. 26 notwithstanding the provisions made in cls. 21 to 25 directing application of the income from property set out in Schedules A, B & C for limited periods in favour of charity, the trustees have the power during the currency of the settlement to expend from out of the income accruing under the settlement to each of the beneficiaries such amount as the trustees may in their discretion deem fit for their maintenance, education, health, marriage and advancement of each of the beneficiaries therein. If by this clause power is conferred upon the trustees to direct the income of the property in Schdules A, B & C for the benefit of the children even during the periods specified in cls. 1, 2 & 3 the assets are unquestionably transferred for the immediate benefit of the children. But it was urged that the inclusion of figure "21" in cl 26 is the result of a typographical error and it should have read as cl. 22. But even cl. 25 refers to the application of the income for limited periods in the event of death of any of the beneficiaries and thereafter for the heirs of the beneficiary, and that is not said to be an efforts typographical or otherwise. Again the argument that reference to cl. 21 was due to an error was never raised before the High Court: if there was any substance in that agreement, the settlor would have executed a deed of rectification correcting the error after setting out the circumstances in which that error came to be made. It was urged that the power which the trustees could exercise is to expend the income accruing under the settlement for each of the beneficiaries under the Trust, and since no income accrued to the beneficiaries during the periods for which the income was to be applied or accumulated for the benefit of charity, reference to cl. 21 in cl. 26 had no meaning. It is implicit in this submission that the settlor intended that the income arising from the Trust property was to be utilized after the children attained the age of majority for their maintenance, education, health, marriage and advancement and not during their minority. The children stood in greater need of provision for maintenance, education, health and advancement during their minority than after they attain their majority, but it is said contrary to the plain terms of cl. 26 that the interest was intended to be given to them after they attained the age of majority, and not during their minority. In the deed of settlement charity is not directly mentioned as one of the beneficiaries, and the income is directed to be given for limited periods to charity and thereafter to the beneficiaries named therein. Clause 26 in terms confers power upon the trustees to expend from out of the income accruing under the settlement to each of the beneficiaries, such amounts for the maintenance, education, health, marriage and advancement of the beneficiaries or any of 435 them as the Trustees deem fit, and there is nothing in that clause which implies that this power is to be exercised after expiry of the periods specified in cls. 1, 2 & 3. The expression "beneficiary" in cl. 26 clearly refers not to charity, but to the three children of the settler, because the trustees are invested with power to expend from out of the income accruing under the settlement for the maintenance. education, health, marriage and advancement of each of the beneficiaries therein. Reading cls. 9 & 26 together it appears that the settlor intended that the trustees shall have power, notwithstanding other provisions in the deed of Trust, that the income of the property settled may be applied during the currency of the settlement for the benefit of the beneficiaries named therein, and in the event of death of any of the beneficiaries, for the benefit of his or her heirs. There was therefore a vested interest immediately arising on the execution of the instrument, and the children of the settlor were the real beneficiaries. In seeking to evade the application of the Wealth Tax Act, clumsy and inconsistent directions are made in the Family Trust: the trustees are initially directed to apply the income accruing from the shares for certain specified periods to charity, and if the income is not so applied during the periods the accumulated income is directed to be handed over to charity, but the direction is immediately followed by the clause that the trustees may apply the income, notwithstanding the provision relating to the application of the income in favour of charity, for the benefit of the minor children of the settlor. The High Court has held that the case fell clearly within section 4(1) (a) (iii) of the Wealth Tax Act and during the periods specified in cls. 1, 2 & 3 the property mentioned in Schedules A, B & C was liable to be included in the computation of wealth tax of the appellant, and in my view the High Court is right in so holding. The appeals fail and are dismissed with costs. ORDER In accordance with the opinion of the majority, the appeals are allowed with costs here and in the High Court. One hearing fee.

The plaintiff tendered in evidence a plaint in an earlier suit and relied on an admission made by the defendants with regard to a fact in issue in the later suit. The High Court ruled that the plaint was not admissible in evidence on two grounds, viz., (i) the plaintiff could not rely on a state ment in the plaint as an admission, as she was not prepared to accept the correctness of the other statements in the plaint and (ii) an admission in a pleading could be used only for the purposes of the suit in which the pleading was filed. On appeal to this Court. HELD : (1) All the statements in the plaint are admissible in evidence. The plaintiff can rely upon a statement in the plaint with regard to a matter in issue as an admission, though she is not prepared to accept the correctness of the other statements in the plaint. Nor is the Court bound to accept all the statements as correct. The court may accept some of the statements as correct and reject the rest. [3 F] (2) Section 17 of the makes no distinction between a admission made by a party in a pleading and other admissions. An admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true. [4 D] D. section Mohite, vs section I. Mohite, A.I.R. 1960 Bom. 153, Marianski vs Cairns, and Ramabai Shriniwas vs Bombay Government,A.I.R. , referred to,

Appeal No. 484 of 1961. Appeal by special leave from the judgment and decree dated March 28, 1958 of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil First Appeal No. 64 of 1951. Sarjoo Prasad and Harbans Singh, for the appellants. B. P. Sinha and Naunit Lal, for the respondents. May 8, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J. This appeal by special leave arises out of a redemption suit filed by the respondent Dev Karan against the appellant Murarilal. The mortgage sought to be redeemed was executed on the 19th March, 1919 for a sum of Rs. 6,500. The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee after the execution of the mortgage deed. The mortgage deed had provided that the amount due under the mortgage should be repaid to the mortgagee within 15 years, whereupon the property would be redeemed. It had also stipulated that if the payment was not made within 15 years, the mortgagee would become the owner of the property. The mortgagor was Mangal 241 Ram who died and the respondent claims to be the heir and legal representative of the said deceased mortgagor. In the plaint filed by the respondent, it was averred that the transaction was, in substance, a mortgage and the mortgagor 's right to redeem was alive even though the stipulated period of 15 years for the repayment of the loan had passed. On these allegations, the respondent claimed a decree for redemption of the suit mortgage on payment of Rs. 6,500. It appears that the original mortgagee Gangadhar had also died before the institution of the suit, and so, the appellant Murarilal was impleaded as the defendant on the basis that he was the only heir and legal representative of the deceased mortgagee Gangadhar. The claim for redemption thus made by the respondent was resisted by the appellant on several grounds. It was alleged that after the expiry of the stipulated period of 15 years, the property had become the absolute property of the mortgagee and it was urged that the original transaction was, in substance, and in reality, not a mortgage but a sale. Several other pleas were also raised by the appellant in resisting the respondent 's claim, but it is unnecessary to refer to them. The learned trial Judge framed appropriate issues which arose on the pleading of the parties. In substance, he field that the claim for redemption made long after the 15 years ' period had expired could not be sustained. Findings were made on other issues also and they were against the respondent. In the result, the respondent 's suit was dismissed. The respondent then took the matter in appeal before the Rajasthan High Court. He urged that the view taken by the trial Court that the stipulation as to the mortgagor 's liability to re pay the loan within 15 years did not bar his present suit for redemption, because the said stipulation amounted to a clog on the equity of redemption and as such, could not affect the mortgagor 's right to redeem, and he added that the transaction, in substance, was a mortgage and not a sale, and so, his right to redeem was alive and could be effectively enforced by the present suit. The High Court has upheld his first contention that the relevant 51 S.C. 16. 242 provision as to the period within which the mortgage amount had to be repaid amounted to a clog on the equity of redemption and could not be pleaded as a bar to the present suit. But on the question about the character of the origi nal transaction itself, the High Court appears to have been inclined to take the view that the relevant clause on which the plea about the bar was raised did not really support the said plea, because it was by no means clear that even after the expiration of 15 years, the mortgagee was intended to be the absolute owner of the property. On these findings, the decree passed by the trial Court dismissing the respondent 's suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law. It is against this order that the appellant has come to this Court by special leave. Pending the appeal before this Court, both the appellant and the respondent have died, and their respective heirs have been brought on the record. The first question which calls for our decision is whether the relevant clause on which the appellant relies makes the mortgagee the owner of the property at the end of the sti pulated period of 15 years. The mortgage provides, inter alia, that after the house which was the mortgage property was delivered over to the mortgagee, it was open to him either to live in it, or to let it out to tenants. The mortgagee was further given liberty to spend up to Rs. 35 for repairing the house and if more expenses were intended to be incurred, the &aid expenditure would be incurred through the mortgagor. On the expenditure thus incurred the mortgagor was liable to pay interest at the rate of As. 0 6 0 per cent per month. Then the document proceeded to add that the mortgagor would get the property redeemed on payment of the mortgage amount as well as the cost of Patta which may have been incurred by the mortgagee and the repairing expenses within a period of 15 years. Then, occurs the relevant clause: "After the expiry of the stipulated period of 15 years, this shop would be deemed as an absolute transfer "Mala Kalam" for this very amount. Till the mortgage money is paid, I shall have no concern with the shop. " The High Court appears to have taken the view that the words "Mala Kalam" which occur at 243 the end of the relevant clause do not necessarily import the notion that the mortgage property would be the absolute property of the mortgagee. According to the High Court, the said words literally mean "where there is no scope for having any say". If that is the meaning of the relevant words, it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period. When the document says that there would be no scope for the mortgagor to say anything, it necessarily means, in the context, that the mortgagor would, in that case, have lost his title to the property, and that means the mortgagee would become the absolute owner of the property. Therefore, we feel no difficulty in holding that if the terms of the document were to prevail, the appel lant 's contention that the present suit for redemption is barred, must succeed. It is common ground that the amount due under the mortgage deed was not paid by the mortgagor or his heir within the stipulated period and that would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property. But the question is whether such a stipulation can be allowed to be pleaded as a bar to the respondent 's claim for redemption. Just as it is common ground that if the terms of the document were to prevail, the suit would be barred, it is also common ground that if the doctrine that the clog on the equity of redemption cannot be enforced is to prevail in the present proceedings, the respondent 's action for redemption must succeed. The fact that a stipulation of the kind with which we are concerned in the present case amounts to a clog on the equity of redemption, is not and cannot be disputed. Therefore, the main question which arises in the present appeal is: does the equitable doctrine ensuring the mortgagor 's equity of redemption in spite of a clog created on such equity by stipulations in the mortgage deed apply to the present case? This question arises in this form, because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years ' stipulated period expired. 244 Mr. Sarjoo Prasad for the appellant contends that the High Court was in error in applying the equitable principle, because the said principle cannot be invoked in cases where the Transfer of Property Act does not apply. In support of this argument, he has very strongly relied on an early decision of the Privy Council pronounced in 1870, in the case of Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken(1). In that case, the Privy Council was dealing with a Bye bil wuffa, or mortgage and conditional sale usufructuary executed in 1806 under which the mortgagees were put in possession. The deed contained a condition that if the mortgagor failed to redeem within five years, the conditional sale was to be absolute. The mortgagor failed to redeem within the stipulated period, and the mortgagee, without foreclosing the mortgage, sold the mortgaged pro perty. Thereafter, the mortgagor 's representative sued to redeem the mortgage under section 8 of the Madras Regulation XXXIV of 1802. The Privy Council held that the interest of the mortgagee after the expiry of the stipulated period had become absolute. In dealing with this question, Lord Chelmsford who delivered the opinion of the Board observed that the form of security with which the Board was concerned had long been common in India, and he added that the sti pulations in such contracts were recognised and enforced according to their letter by the ancient Hindu law as well as under Mohammedan law; and in support of this statement, reference was made to certain passages from Colebrooke 's Digest on Hindu Law and Baillie 's introduction to his book on Mohammedan Law of Sale. If the ancient law of the country, observed Lord Chelmsford, has been modified by any later rule, having the force of law, that rule must be founded either on positive legislation, or on established practice; and since neither any specific statutory provision had been cited before the Board, nor established practice in that behalf had been proved, the Privy Council upheld the mortgagee 's plea that he became the absolute owner of the property at the expiration of the stipulated period. While pronouncing this decision, Lord Chelmsford, however, took the precaution of adding that while the Board was allowing (1) [1890] 13 Moore 's I.A. 560 245 the appeal, "it must not be supposed that their Lordships design to disturb any rule of property established by judicial decisions so as to form part of the Law of the Forum wherever such may prevail, or to affect any title founded thereon. " As we will presently point out, the appeal of Pattabhiramier was pending before the Privy Council for as many as 10 years. Meanwhile, Indian High Courts were enforcing the equitable principle that stipulations contained in mortgage deeds which amounted to clog on the equity of redemption could not be enforced. In other words, the jurisdiction which courts of equity exercised in England by refusing to enforce clogs on the equity of redemption, was being exercised by High Courts in India. However, before we refer to those decisions, it would be convenient to cite another decision of the Privy Council pronounced in Thumbusawmy Moodelly vs Hossain Rowthen & Ors(1). In that case, the Privy Council held that the con tract of mortgage by conditional sale is a form of security known throughout India, and by the ancient law of India, it must be taken to prevail in every part of India, where it has not been modified by actual legislation or established practice, and so, must be enforced according to its letter. In this case, Sir James W. Colvile who delivered the opinion of the Board, referred to the earlier decision of the Privy Council in Pattabhiramiers case(1), noticed the trend of judicial pronouncements made by the High Courts in India while Pattabhiramier 's case was pending before the Privy Council, and strongly reiterated the view that the said decisions of the High Courts were radically unsound. He referred to the fact that unfortunately, Pattabhiramier 's case " slept for nine years, and that in the interval the Sudar Court, and afterwards the High Court which succeeded it, continued the course of decision which the former had given in 1858". Then he mentioned the relevant decisions of the Madras and the Bombay High Courts and expressed the opinion that in trying to enforce principles of equity in dealing with stipulations contained in mortgage documents, the High Courts were really assuming the functions of Legislature. So, it is clear that the Privy Council emphatically (1) I.L.R. (2) [1870] 13 M.I.A. 246 declared in 1875 that unless there is a legislative enactment or established practice to the contrary, terms in the contract of mortgage by conditional sale must be taken to prevail in every part of India and must be strictly enforced according to their letter. Mr. Sarjoo Prasad naturally relies on these decisions and contends that so far as the State of Alwar is concerned, there is no legislative enactment to the contrary, nor is there any established practice on which the equitable doctrine could be pleaded by the respondent in support of his case that though 15 years have elapsed, his right to redeem still survives. There are two other decisions of the Privy Council to which we may refer at this stage. In Kader Moideen V. Nepean(1), the Privy Council was dealing with a case from Burma, and it observed that the Burmese Courts are directed, in the absence of any statutory law applicable to accounts against a mortgagee in possession, to follow the guidance of justice, equity, and good conscience. Acting on this principle, the Privy Council accepted Mr. Haldane 's contention that there was no rule of abstract justice in taking the accounts of a mortgagee in possession, and that the Indian rule, which was embodied in section 76 of the Transfer of Property Act, should, though the Act had not been extended to Burma, be followed there in preference to the English practice. It would thus be seen that the equitable principle underlying the provisions of section 76 was extended to the case on the specific ground that the Burmese Courts had been directed by the relevant statutory provision to follow the guidance of justice, equity and good conscience in the absence of any statutory law applicable to accounts against a mortgagee in possession. This decision, therefore, is in line with the two earlier decisions of the Privy Council. Similarly, in Mehrban Khan vs Makhna(2), where the Privy Council was dealing with the provisions in a mortgage deed conferring on the mortgagee upon redemption an interest in the mortgaged property, it was held that the said provisions amounted to a clog or fetter on the equity of redemption and as such, were void not only against the mortgagor, but also against the purchaser of his interest, (1) 25 I.A. 241 (2) 57 I.A. 168 247 since they were inconsistent with the very nature and essence of a mortgage. In this case, again, section 28 of Regulation No. VII which was applicable to the North West Frontier Province, had expressly provided that in cases not otherwise specially provided for, the Judges shall decide according, to justice, equity and good conscience; and so, recourse to the equitable doctrine was permissible because there was the statutory mandate requiring the Judges to apply the said doctrine where there was no specific legislative provision in relation to the matter with which they were dealing. Though the position of the Privy Council decisions is thus clear and consistent, the trend of the decisions of the High Courts in India continued to conform to the same pattern which was set up by the decision of the Madras High Court in the case of Venkata Reddi vs Parvati Ammal(1) and adopted by the Bombay High Court in Ramji bin Tukaram vs Chinto Sakharam (2). The question was elaborately argued on several occasions before the said High Courts and the two earlier decisions of the Privy Council in the case of Pattabhiramier(3) as well as in the case of Thumbuswamy Moodelly(4) were cited and yet, the High Courts have con sistently adhered to the view that in dealing with mortgage transactions which contain unfair, unjust or oppressive stipulations unreasonably restricting the mortgagor 's right to redeem, the Court would be justified in refusing to enforce such stipulations and recognising the paramount character of the equity of redemption. In Bapuji Apaji vs Sonavaraji Marvati(5), Westropp, C.J., has elaborately considered the relevant aspects of this question. He referred to the two Privy Council 's decisions and observed that the doctrine of Ramji vs Chinto(2) had been uniformly followed in the Bombay Presidency in a multitude of cases, and he saw no reason to depart from that decision. In expressing his firm adherence to the pattern of the law prescribed by the decision of the Bombay High Court in Ramji vs Chinto, the learned Chief Justice elaborately considered all the precedents on the point, trend of authorities bearing on the question, the opinion of scholars, and held that he was inclined (1)1 Mad. H.C. Rep. 460 (2) 1 Bom. H.C.Rep. 199 [1864] (3) [1870] 13 M.I.A. 560 (4) I.L.R. (5) I.L.R. 248 to take the law to be that which was settled in Ramji vs Chinto(1) and gave effect to it. So far as the Bombay High Court is concerned, the practice consistently had been to follow the decision of Westropp, C.J. till the Transfer of Property Act was extended to Bombay. In Madras, we find that same position. In Ramasami Sastrigal vs Samivappanayakan(2), the majority view of the Full Bench was that in the Madras Presidency, where con tracts of mortgage by way of conditional sale have been entered into subsequent to the year 1858, redemption after the expiry of the term limited by the contract must be allowed. The, point with which we are dealing in the present appeal was elaborately argued before the Madras High Court; the opinion expressed emphatically by the Privy Council was cited, but Turner, C.J., with whose opinion Muttusami Ayyar, J., agreed made a very significant observation after elaborately examining the merits of the questions "For these reasons," said the learned C.J., "we conceive that we shall not be wanting in due respect for the distinguished tribunal by whose decisions we are bound, if we follow the course they have pronounced there were strong reasons for adopting and apply the rules introduced, however erroneously, by judicial decisions in these provinces. " That view has prevailed in the Madras High Court ever since. These decisions show that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice, equity and good conscience, it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transactions which ' appear to them to be unreasonable, oppresive or unjust. It is true that according to the strict letter of the ancient Hindu Law, a stipulation that the mortgagor shall pay the amount advanced to him by the mortgage within a specified period, was intended to be enforced. The ancient Hindu law texts use the word "Adhi" to denote pledge of a movable or mortgage of immovable property. IV 124 divides Adhi into two sorts, viz., one that is to be redeemed within (1) 1 Bom. H.C. Rep. 199 Mad. 179 at P. 190 249 a certain time fixed (by agreement at the time of contracting the debt) or to be retained till the debt is paid off. In regard to the first category of mortgages, if the money is not paid at the time fixed, the thing pledged or mortgaged would belong to the creditor (vide Yaj. 58 and as explained by Mitakshara) (1). It also appears that if the mortgage is not redeemed even when the debt has grown to double of the principal by non payment of the interest agreed upon, the mortgagor lost his title over the mortgaged property; so that it must be conceded that under the strict letter of the Hindu law texts, if a mortgage deed contains a stipulation for the repayment of the mortgage amount within a specified period, at the expiration of the said period the mortgagor may lose his title over the mortgaged property. The principle underlying this provision appears to be that Hindu law as enunciated by the ancient texts, attached considerable importance to a person keeping his promise. Though that is so, we ought also to add that according to Sir R. B. Ghose, ordinarily, time was not of the essence of the contract of mortgage in Hindu law(1), and in support of this opinion the learned author quotes with approval Colebrooke 's opinion. Basing himself on this position of the Hindu law, Mr. Sarjoo Prasad contends that we ought to assume that Hindu Law which was applicable to Alwar recognised the importance of compelling the mortgagor to perform his promise that he would repay the debt within a specified time and if he tailed to do so, he would lose his title over the mortgaged property. He urged that the dispute between the parties in the present appeal should be decided in the light of this position of the Hindu law as well as the principles enunciated by the Privy Council in the cases of Pattabhiramier(3) and Thumbusawmy Moodelly (4). In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been con sistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which un reasonably restrain or restrict the mortgagor 's right to (1) Dr. Kane 's History of Dharmasastra Vol. ,128 (1) Ghose on 'The Law of Mortgage in India ' Tagore Law Lectures 1875 6, 5th Ed. I. p. 56. (3) [1870] 13 M.I.A. 560 (4) I.L.R. 250 redeem. We may, in this connection, refer to some of the statutes which were in force in India. The old Bengal Regulation III of 1793 by section 21 directed the Judges of the District and City Courts in cases where no specific rule existed to act according to justice, equity and good con science. Similar provision occurs in section 17 of the Madras Regulation II of 1802. The Bengal Civil Courts Act, 1887, and the Madras Civil Courts Act, 1873, contain similar pro visions in sections 37 and 16 respectively. Likewise, in regard to Courts in the Mufassal of Bombay, Bombay Regulation IV of 1827 by section 26 provides that the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant, and in the absence of specific law and usage, equity `and good conscience. In fact, in Namdeo Lokman Lodhi vs Narmadabai(1), this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions. These observations, in substance, represent the same traditional judicial approach in dealing with oppressive, unjust and unreasonable restric tions imposed by the mortgagees on needy mortgagors when mortgage documents are executed. There is one other circumstance to which we ought to refer. We do not know what the true position of the Hindu law was in the State of Alwar at the relevant time. In fact, we do not know what the provisions of the Contract Act were in the State of Alwar. Even so, we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country, required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them. Whether or not the Hindu law which prevailed in Alwar was similar to that prescribed by ancient Hindu Sanskrit texts, is a point on which no material is produced (1) ; 251 before us. It may well be that just as in Bombay and Madras, notwithstanding the ancient provisions of Hindu Law which seem to entitle the mortgagee to insist upon the performance of a stipulation as to time within which the mortgage debt has to be paid, the High Courts had con sistently refused to enforce such stipulations, the Courts in the State of Alwar also may have adopted the same approach. In the absence of any material on the record on the point, we are reluctant to accept Mr. Sarjoo Prasad 's argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute. In this connection, it is material to refer to the recent decisions pronounced by the Rajasthan High Court in which this position has been upheld either because it was conceded, or because the High Court took the view that the principles of equity were enforceable in dealing with mortgage transactions in Rajasthan. In Amba Lal vs Amba Lal(1), the Rajasthan High Court held that section 60 and its proviso contained a general principle of law applicable to mortgages in this country, which should be applicable even in those places where the Transfer of Property Act may not be in force as such, but where its principles may be in force. The property in question which was the subject matter of the mortgage was situated in the State of Udaipur. Similarly, in the case of Seleh Raj vs Chandan Mal(2) , the Rajasthan High Court held that the principle underlying section 60 may well be regarded to be a salutary one and in accordance with the principles of equity, justice ,and good conscience. Accordingly it took the view that though the Transfer of Property Act may not be in force in the territory in question, it would not be unreasonable to decide a case in accordance with the principles underlying the said section. The property with which the Court was concerned in this case was situated in the State of Jodhpur. The same principle has been applied in Himachal Pradesh (vide Nainu vs Kishan Singh)("). (1) I.L.R. r957 Raj. (2) I.L.R. (3) A.I.R. T957 H.P. 46. 252 Thus, it is clear that the equitable principle of justice, equity and good conscience has been consistently applied by Civil Courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor 's equity of redemption, courts were empowered to ignore that stipulation and enforce the mortgagor 's right to redeem, subject, of course, to the general law of limitation prescribed in that behalf. We are, therefore, satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption. In the result, the appeal fails and is dismissed with costs.

The second appellant, who had executed promissory notes in favour of the respondents was adjudicated an insolvent on a petition by them. The Official Receiver in exercise of the powers under sections 33 and 80 of the Provincial Insolvency Act (5 of 1920) and under directions of the Insolvency Judge, inquired into the claims of the respondents and rejected them. On appeal, the Insolvency Judge directed the inclusion of their names in the schedule of creditors. The appeal to the District Court against the order of the Insolvency Judge was allowed. In second appeal to the High Court, it was held, that the inference drawn by the District Court from its findings was a matter of law and that therefore the High Court had jurisdiction under section 75(1), to interfere with the order of the District Court. Relying upon the presumption in favour of creditors in section 118 of the Negotiable Instruments Act (26 of 1881), the High Court set aside the judgment of the District Court. The Official Receiver and the insolvent appealed to the Supreme Court. HELD : The appeal should be allowed. Since all the findings of the District Court were findings of fact and the question whether a statutory presumption was rebutted by the rest of the evidence was also a question of fact, the High Court had no jurisdiction to set aside the judgment of the District Court. [259A C]. Wali Mohammad V. Mohammad Bakhsh, (1930) L.R. 57 I.A. 86. approved. Section 118 of the Negotiable Instruments Act, enacts a special rule of evidence which operates only between parties to the instrument or persons claiming under them in a suit or proceeding relating to the negotiable instrument. The section does not affect section 114 of the Evidence Act, and in cases not falling within section 118 of the Negotiable Instruments Act the Court may or may not presume that a promissory note was founded on good consideration. Therefore, in a proceeding relating to proof of debts, the question being not one between the insolvent and the proving creditor alone, and since the rights of other creditors of the insolvent have of necessity to be considered, the Court has jurisdiction to investigate whether there is a real debt. Even if for some reason the debtor himself is estopped from denying the debt, there could be no estopped against the Insolvency Court. There is thus no statutory presumption of consideration in favour of the creditors under promissory notes in proceedings under section 33 of the Provincial Insolvency Act for settlement of the schedule of creditors, and the Receiver exercising powers under section 80 of that Act is not bound to admit the debts in the schedule merely because the insolvent or the creditors have failed to displace such a presumption. [261F 262C; 264E G]. Case law reviewed.

N: Special Leave Peti tion (Criminal) No. 216/1977. (From the Judgment and Order dated 28 9 1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl. Appeal No. 17/72). S.J.S. Fernandez, amicus curiae, for the petitioner. The Order of the Court was delivered by KRISHNA IYER, J. A death sentence, with all its dreadful scenario swinging desperately out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu tioner 's rope. Even so, judges must enforce the laws, whatever they be, and decide according to the best of their lights, but the laws, are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice. We are bound by the Penal Code and the Criminal Procedure Code, by the, very oath of our office. Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term. It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Edige Annamma, , AIR). Even so, the discretion is limited and courts can never afford to forget Benjamin ' Cardozo 's wise guidance: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roam ing at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by sys tem, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of dis cretion that remains." (Cardoze: The Nature of the Judicial Proc ess: Wale University Press ( 1921 ) ). We have heard counsel on the merits and.perused the paper book with some care and see no ground to disturb the conviction. The question of 'sentence ' projects sharply before us and what we. have stated above turns our focus on cicumstances justifying the graver sentence. The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence. The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty. When discretion has been exercised by the trial Court and it is difficult to fault that 773 court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demol ish the discretionary exercise of power by the inferior court. So viewed, it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence. We are unable to, grant leave on, this score either. Counsel for the petitioner has urged that the affirma tion by the Judicial Commissioner 's court of Goa, Diu and Daman, of the Death sentence is illegal. According to. him section 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads: "377. In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." This section means, as we understand it, that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them. This provision obviously applies only to situations where the court, at the time of the confirmation of the death sentence. , consists of two or more judges. It is true that section 4 (1) (i) in relation to a Union Territory brings within the definition of the 'High Court ' the highest court of criminal appeal for that area viz. the Judicial Commissioner 's court. It therefore follows that if, at the time the case for confirmation of the death sentence is being heard, the Judicial Commission er 's court consists of more than one judge, at least two judges must attest the confirmation. In the present case it is common ground that when the case was heard and judg ment pronounced there was. only one Judicial Commissioner, although the sanctioned strength was two. So long as one Judicial Commissioner alone functioned in the court, section 377 was not attracted. The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial Commissioner deciding the refer ence. We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law 's grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are. applied. Even so, exceptional situations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law which prevails against the general. On that footing he argues that under Regulation, 8 (1) the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao. According to him, the said Tribunal did not have the powers of confirmation of death sentence, and, 774 therefore, the judicial Commissioner cannot exercise such power. He also argues that under the said provision the Judicial Commissioner ' is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi nal Procedure Code. We see no force in these twin submis sions. A Code is complete and that marks the distinction between a Code and an ordinary enactment. The Criminal Procedure Code, by that canon, is serf contained and com plete. It defines a High Court which takes in a Judicial Commissioner 's Court. (Section 4(1)(i). We need not and indeed may not travel beyond the Code into the territory of the Regulation. Even otherwise, there is nothing in Regulation 8 ( 1 ) which helps the petitioner. It pro vides that the Judicial Commissioner shall be the highest criminal 'Court, Appeal and Revision ' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level. Referral jurisdiction, under section 377, is skin to appeal and revision and we think that Regulation 8(1) does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code: nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences, and, there fore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power. Regulation 8(1) does not limit the jurisdiction of the. Judicial Commission er in the sense counsel wants us to accept. We therefore hold that the Judicial Commissioner 's confirmation of the death sentence is not without jurisdiction. Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis ingly for around six years. May be that such a long spell of torment may be one circumstance in giving the lesser sen tence. Even s0, we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone, without other supplement ing factors or in the face of surrounding beastly circum stances of the crime, judicial clemency can attenuate the sentence. Possibly, Presidential power is wider but judicial power is embanked. We refuse special leave and dismiss the petition. Petition dismissed.

The respondent was the adopted son of the testatrix who made a will in 1935 declaring that her properties were dedicated to a private temple of hers in her house and would remain so for all times to come. In 1938, however, she revoked the earlier will and dedicated a part of the house and certain other items for the benefit of the temple. But she expressly prohibited the respondent from performing her funeral rites and gave certain rights over the property to the appellant and his wife. In 1947 she again revoked the will made in 1938 and bequeathed her properties to the appellant without right of alienation and had also clearly stated that the respondent should have no concern with her estate and should not be allowed to touch her dead body. On her death, though the original will was not found, a draft will which was almost of the same time was discovered. The recitals in the draft were almost the same as in the will of 1947. In the appellant 's petition before the District Judge for grant of letters of administration or probate the respondent contended that the testatrix was not of sound disposing mind at the time of the alleged execution of the will and that the appellant had exercised undue influence over her in the execution of the will. It was further alleged that the will was subsequently revoked and that was the reason why it was not found in the house despite search. The District Judge accepted the respondent 's version and rejected the petition for probate. On appeal a single Judge of the High Court found that the will was genuine and had not been revoked. On further appeal the Division Bench restored the order of the District Judge dismissing the appellant 's application for probate by drawing a presumption that the testatrix had revoked the will by destroying it before her death. In appeal to this Court it was contended on behalf of the appellant that the High Court was in error in drawing a presumption of revocation of the will in view of the express provisions of section 70 of the and in the alternative even if the presumption was available to the respondent the same being a rebuttable one. was sufficiently rebutted by facts and circumstances proved in the case. Allowing the appeal, ^ HELD: The presumption that the will was revoked by the testatrix had been sufficiently rebutted and the respondent had failed to discharge the onus which lay on him to prove that the will was revoked. The will being a product of free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found, despite search, was not 874 sufficient to justify a presumption that the will was revoked. Having regard to the fact that the respondent was interested in destroying the will and had access to the house, the presumption would be that the will was either stolen or misplaced by him or at his instance. [890C E] The correct legal position may be stated thus: (i) Where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people. (ii) Such a presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted. (iii) In view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully. (iv) Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn. (v) In view of the express provision of section 70 of the the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will. (vi) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons. [887B 888A] Anna Maria Welch & Lucy Allen Welch vs Nathaniel Phillips, ; , Padman & Ors. vs Hanwanta & Ors., AIR 1915 P.C. 111; Finch vs Finch, 1 P & D 371; Anil Behari Ghosh vs Smt. Latika Bala Dassi & Ors., ; ; Kaikhushru Jehangir vs Bai Bachubai Jehangir Jullundur vs Dev Raj Vir Bhan & Anr., AIR 1963 Pun. 208; Halsbury 's Laws of England, Third Edition, Vol. 39 at 896; Jarman on Wills; Corpus Juris Secundum Vol. 95; referred to. Babu Lal Singh & Anr. vs Baijnath Singh & Anr., ; Brundaban Chandra vs Ananta Narayan Singh Deo, AIR 1956 Orissa 151; Satya Charan Pal vs Asutosh Pal & Ors., AIR 1953 Cal. 657 at 659 660; Efari Dasya vs Podei Dasya, ILR at 486; Shib Sabitri Prasad & Ors. vs The Collector of Meerut, ILR 1907 All 82 at 87; Anwar Hossein vs Secretary of 875 State for India, at 892, Chouthmal Jivarjee Poddar vs Ramachandra Jivarjjee Poddar, AIR 1955 Nag. 126 at 136 and Pt. Devi Charan vs Durga Porshad Chanu Lal & Ors., AIR 1967 Delhi 128 at 132; approved.

Appeal No. 1817 of 1967. From the judgment and Decree dated the 21st September 1965 of the Andhra Pradesh High Court in A.S. No. 508 of 1959. K. R. Choudhury and Veena Khanna, for the appellants. M. K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI, J. Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind him his widow Narasimham. After Ramamurti 's death a series of litigations started between Venkanna and Narasimham and it is not over yet. Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of waste committed by her of Ramamurti 's estate and was appointed a receiver in that suit. In that suit he got a decree against Narasimham for a sum of Rs.13,539/ as she failed to furnish security as originally decreed by the court. Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O. section No. 34 of 1916. In execution of that decree item 1 of the 'A ' Schedule properties was purchased in court auction. O.S. No. 443 of 1918 was filed on the, foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit. These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this appeal to refer to the third suit. Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the properties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge 's judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court. The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items 1, 2 and 5 had been purchased, relating to *he period before Ramamurti 's death and the period after Ramamurti 's death. After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item 1, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court. Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we shall deal with seriatim. The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judge 's court only to the question of the share, which the appellants ,and the respondent were entitled to, based on the calculation of the 597 interest due on the mortgages before and after the death of Ramamurti. His contention was that as the High Court had merely framed issues and referred them for trial to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII Rule 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for. We think that he is right in this contention. Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs.14,639/ and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance, that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for. We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul vs Sat Narain Shukul (AIR 1923 Allahabad 384) where it was held that: "Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order. " It was also held that: "An order remanding issues under Rule 25 is not a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand. It is quite otherwise with an order of remand passed under order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides. A similar view was taken by the Nagpur High Court in Sultan 598 Beg Al. chunilal (AIR 1918 Nagpur 193). In Abinash Chandra Bidyanidhi Bhattacharjee vs Dasarath Malo (XXXII (1927 28) Calcutta 'Weekly Notes 1233) it was sail: An order of remand made under Or. 41, r. 25 decides nothing. The Court, either the same or as differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous. " We are, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O.S. 14 of 1913 there can be no question of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour. In the Trial Court the plaintiff 's contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal. That Court dismissed the plaintiff 's claim on the ground that there was no proof of his allegations. It was before the High Court apparently that the attempt to split the interest due on the mortgages into two portions, one before Ramamurti 's death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set off. They raised the ,question before the Trial Court when it was considering the appor tionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Court 's order calling for the finding. And the High Court refused to allow the appellants to raise that question, which as we have just held was not correct. The decree in Venkanna 's suit appears to have directed payment of interest to Narasimham [Para III (c) of the plaint and judgment of the High Court, page 102 of the paper book]. We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940. We have also evidence in this case that even When Venkanna died a sum of Rs.4,486/ was due.to him on the foot of the decree he obtained against Narasimham. It is, therefore, highly unlikely that any amount due to Narasimham was not given credit to. We find from the finding submitted by the Trial Court (Page 86 of the paper book) Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from exhibit A 7 it would appear that the claim was allowed. It seems therefore unlikely, taking the direction in the decree and the order evidenced by exhibit A 7 into account, that the interest due to Narasimham, was not 599 one of the items set off. We do not want to express any final opinion on the point but are of opinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal afresh. Out of about 16 acres comprised in item 1, 5 acres had been lost in revenue sale because of Narasimham 's failure to pay the land revenue on those lands. It was urged before the High Court and it has been urged again before us that in allotting to the appellants a share of items 1, 2 and 5 these 5 acre , which were lost to the estate as a result of Narasimham 's negligence should be debited against her share in them. We find ourselves unable to accept this contention just as the High Court, though they gave no reason for their conclusion. Neither on principle nor on authority could the contention on behalf of the appellants be supported. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of willful waste, she ' is answerable to no one. Her estate is not a life estate, because in certain circumstances she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversions. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one. She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole in heritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or sues successions. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained clue to the negligence on the part of the widow he should be compensated from out of the widow 's separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioner 's right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of willful waste if would have been a different matter. It would still have been necessary for the nevermore to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unable to accept this contention 3. Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating 600 items 1, 2 and 5 between the appellants and the respondent. The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/ as the amount due on settlement of account, and it was peon to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point. Lastly, it was argued that Narasimham, the widow, had treated this property as accretion to the husband 's estate and therefore the appellants are entitled to the whole of the property. The facts on the basis of which this contention is urged are : (a) When Narasimham 's life interest in the estate was sold in E.P. No. 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest. (b) In the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate. (c) Life interest in the A Schedule properties was &old in E.P. 28 of 1940 in execution of the decree in O.S. 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest. We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband 's estate. As observed by the Madras High Court in Akkanna vs Venkayya (I.L.R. "the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband 's property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow 's estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and en 601 joyed by her without any distinction, along with properties inherited from her husband, can in no way effect this presumption. She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties. " The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quiet. She was not there by estopped from contending that she had an ' absolute interest in the properties. It should, more over, be remembered that the question that the items 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband 's estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husband 's reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband 's estate as an accretion to that estate. In the result the appeal is allowed and the judgment of the High Court set aside. The High Court will dispose of the appeal afresh. The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court. C.M.P. No. 2016 of 1969 is dismissed. S.C. Appeal allowed.

The appellant was appointed head cashier in one of the branches of the respondent Bank by the Treasurers who were in charge of the Cash Department of the Bank by virtue of an agreement between them. The question arose as to whether the appellant was an employee of the Bank. (i) that the terms of the agreement clearly showed that the Treasurers were servants of the Bank and not independent contractors; and that (ii)as the direction and control of the appellant and of the ministerial staff in charge of the Cash Department of the Bank was entirely vested in the Bank, the appellant was an employee of the Bank. If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be, equally with the employer, servants of the master. The question as to whose employee a particular person is has to be determined with reference to the facts and circumstances of each individual case, and among the many tests by which to ascertain who is the employer, the most satisfactory one is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. (1) (1924] I.L.R. (2) Cal. 297, 1428 Donovan vs Laing, Wharton & Down Construction Syndicate ([1893] and Mersey Docks & Harbour Board vs Coggins & Griffith (Liverpool) Ltd. ([1947] A.C.1), referred to.

N: Criminal Appeal No. 365 of 1974. Appeal by Special Leave from the Judgment and Order dated 24.1.1974 of the Patna High Court at Patna in Criminal Appeal No. 306/1969. U. P. Singh for the Appellants. K. G. Bhagat and U. N. Prasad for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against the judgment of the Patna High Court dated 24.1.1974 and has been preferred by appellants Dayanand Mandal, Bhubneshwar Mandal, Kuldip Mandal, Bhagwat Mandal, Nemo Mandal, and Udin Yadav. The occurrence seems to have arisen out of an irrigation dispute. According to the prosecution case the appellants wanted to irrigate the land and when they were prevented from doing so, Mainu Mandal resisted as a result of which Bhudeo Mandal who is now dead gave a bhala blow to the deceased Mainu Mandal. So far as the other appellants are concerned, they are supposed to have been armed with lathis but they did not cause any injuries either to the witnesses or to the deceased. The Sessions Judge had convicted the accused Bhudeo Mandal under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/149 of the Indian Penal Code and sentenced them to 3 years rigorous imprisonment but affirmed the acquittal of the accused of the individual charges under sections 323 and 325 of the Indian Penal Code by the Sessions Judge. We have gone through the judgment of the High Court which while convicting the appellant under section 326/149 of the Indian Penal Code has given no finding regarding the common object of the unlawful assembly. Even on the prosecution case itself the occurrence took place as a result of an irrigation dispute and the appellants were merely acting under a bona fide claim or belief that they had the right to irrigate the land. There is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common 293 object with which Bhudeo Mandal was inspired. Before the High Court could have upheld the conviction of the appellants under section 326/149 of the Indian Penal Code, it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. In these circumstances we find ourselves in complete agreement with the argument of Mr. U.P. Singh, learned counsel for the appellants that there is no material to support the conviction of the appellants under section 326/149 of the Indian Penal Code. Mr. Bhagat appearing for the State fairly conceded that in the circumstances of this case it would not be possible for him to support the conviction mainly on the ground that since the main accused was convicted under section 304, Part I the other appellants should also have been convicted under section 304/149 and not under section 326 of the Indian Penal Code. We should like to point out that whenever the High Court convicts any person or persons of an offence with the aid of section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the Indian Penal Code, the essential ingredient of section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. In the instant case there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution. In the result the appeal is allowed and the conviction and sentence of the appellants are set aside and the appellants are acquitted of the charge framed against them. The appellants are hereby discharged from their bail bonds and need not surrender. N.K.A. Appeal allowed.

When the appellants wanted to irrigate the land they were prevented from doing so by the deceased as a result of which the 1st appellant who is now dead gave a bhala blow to the deceased. The other appellants were supposed to have been armed with lathis but they did not cause any injuries either to the witnesses or to the deceased. The Sessions Judge convicted the 1st appellant under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/149 of the Indian Penal Code and sentenced them to undergo 3 years ' rigorous imprisonment but affirmed the acquittal of the individual charges under sections 323 and 325 I.P.C. The High Court while convicting the appellant under sections 325/149 of the I.P.C. has given no finding regarding the common object of the unlawful assembly. Accepting the appeal, the Court ^ HELD: In the instant case, there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution. Even on the prosecution case itself the occurrence took place as a result of an irrigation dispute and the appellants were merely acting under a bona fide claim or belief that they had the right to irrigate the land. There is no overt act attributed to any of the appellants in regard to the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common object with which the deceased was inspired. [292 G H] 2. Before the High Court upheld the conviction of the appellants under sections 326/149 I.P.C. it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. [293 A] 3. Whenever the High Court convicts any person or persons of an offence with the aid of section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must 292 show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the I.P.C. the essential ingredients of section 141 of the I.P.C. must be established. [293 D]

ivil Appeal No. 14 of 1953. Appeal by special leave granted by the Supreme Court, by its Order dated the 29th October, 1951, from the Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at Patna (Sinha and Rai JJ.) in appeal from Appellate Decree No. 1152 of 1946 from the Judgment and Decree dated the 24th day of May, 1946, of the Court of the 1st Additional District Judge in section J. Title Appeal No. I of 1946 arising out of the Judgment and Decree dated the 27th November, 1945, of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944. S.C. Issacs (Ganeshwar Prasad and R. C. Prasad, with him) for the appellants. B.K. Saran and M. M. Sinha for respondents Nos. 1 9. 1954. April 14. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This appeal raises a question on the construction of section 11 of the Suits Valuation Act. The appellants instituted the suit out of which this appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih, of which defendants Nos. 12 and 13, forming the second party, are the proprietors. The allegations in the plaint are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1,950 as salami and put into possession of the. lands, and that thereafter, the first party consisting of defendants Nos. 1 to 11 trespassed on them and carried away the crops. The, suit was 119 accordingly laid for ejecting defendants Nos. I to II and for mesne profits, past and future, and it was valued at Rs. 2,950, made up of Rs. 1,950 being the value of the relief for possession and Rs. 1,000, being the past mesne profits claimed. Defendants Nos. I to II contested the suit. They pleaded that they had been in possession of the lands as tenants on batai system, sharing the produce with the landlord., from fasli 1336 and had acquired occupancy rights in the tenements, that the second party had no right to settle them on the plaintiffs, and that the latter acquired ' no rights under the settlement dated 12th April, 1943. Defendants Nos. 12 and 13 remained ex parte. The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A 114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347, that defendants Nos. I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights, and that the settlement dated 12th April, ' 1943, conferred no rights on the plaintiffs. He accordingly dismissed the suit. The plaintiffs preferred an appeal against this decision to the Court of the District Judge. Monghyr, who agreed with the trial Court that the receipts, Exhibits A to A 114 were genuine, and that defendants Nos. I to 11 had acquired occupancy rights, and accordingly dismissed the appeal. The plaintiffs took up the matter in second appeal to the High Court, Patna, S.A. No. 1152 of 1946, and there, for the first time; an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry, the Court determined that the correct valuation of the suit was Rs. 9,980. The plaintiffs paid the additional Court fees required of them, and then raised the contention that on the revised valuation, the appeal from the decree of the Subordinater Judge would lie not to the District Court but to the High Court, and that accordingly section A. No. 1152 of 1946 should be heard as a first appeal, ignoring the judgment of the District Court. The learned Judges held following the decision 120 of a Full Bench of that Court in Ramdeo Singh vs Raj Narain (1), that the appeal to the District Court was competent, and that its decision could be reversed only if the appellants could establish prejudice on the merits, and holding that on a consideration of the evidence no such prejudice had been shown, they dismissed the second appeal. The matter now comes before us on special leave. It will be noticed that the proper Court to try the present action would be the Subordinate Court, Monghyr, whether the valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by the High Court; but it will make a difference in the forum to which the appeal from its judgment would lie, whether the one valuation or the other is to be accepted as the deciding factor. On the plaint valuation, the appeal would lie to the District Court; on the valuation as determined by the High Court, it is that Court that would be competent to entertain the appeal. The contention of the appellants is that as on the valuation of the suit as ultimately determined, the District Court was not competent to entertain the appeal, the decree and judgment passed by that Court must be treated as a nullity, that the High Court should have accordingly heard S.A. No. 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were entitled to a full heating as well on questions of fact as of law. And alternatively, it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act, the appellants had suffered "Prejudice" within the meaning of that section, in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the High Court on the merits, as a first appeal. (1) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278, 121 The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section II of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be ' determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. Section 11 enacts that notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that a Court which had 'no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under valuation, should not be entertained by an appellate Court., except as provided in the section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in and deservedlyfor considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over valuation or under valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over valuation or undervaluation should be dealt with under that section and not otherwise. The reference to section 578, now section 99, of the Civil Procedure Code, in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in 16 122 appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over valuation or undervaluation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over valuation or under valuation shall Dot be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self contained provision complete in itself, and no objection to jurisdiction based on over valuation or under valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits, The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act. On behalf of the appellants Rajlakshmi Dasee V. Katyayani Dasee(1) and Shidappa Venkatrao vs Rachappa Subrao(2) which was affirmed by the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(3) were relied on as supporting the contention (1) I.L.R. (2) I.L.R. 36 Bom, 628. (3) 46 I.A. 24. 123 that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued, a decree passed by it must be treated as a nullity. In Rajlakshmi Dasee vs Katyayani Dasee(1), the facts were that one Katyayani Dasee instituted a suit to recover the estate of her husband Jogendra in the Court of the Subordinate Judge, Alipore, valuing the claim at Rs. 2,100, whereas the estate was worth more than a lakh of rupees. The suit was decreed, and the defendants preferred an appeal to the District Court, which was the proper Court to entertain the appeal on the plaint valuation. There, the parties compromised the matter, and a consent decree was passed, recognising the title of the defendants to portions of the estate. Then, Rajlakshmi Dasee, the daughter of Jogendra, filed a suit for a declaration that the consent decree to which her mother was a party was not binding on the reversioners. One of the grounds urged by her was that the suit of Katyayani was deliberately under valued, that if it had been correctly valued, it was the High Court that would have had the ,competence to entertain the appeal, and that the con,sent decree passed by the District Judge was accordingly a nullity. In agreeing with this contention, the High Court observed that a decree passed by a Court which had no jurisdiction was a nullity, and that even consent of the partes could not cure the defect. In that case, the question was raised by a person who was not a party to the action and in a collateral proceeding, and the Court observed: " We are not now called upon to consider what the effect of such lack of, jurisdiction would be upon the decree, in so far as the parties thereto were concerned. It is manifest that so fir as a stranger to the decree is concerned, who is interested in the property affected by the decree, he can obviously ask for a declaration that the decree is a nullity, because made by a Court which had no jurisdiction over the subject matter of the litigation" On the facts, the question of the effect of section 11 of the Suits Valuation Act did not arise for determination, and was not considered. (1) I.L.R. 124 In Shidappa Venkatrao vs Rachappa Subrao(1) the plaintiffs instituted a suit in the Court of the Subordinate Judge, First Class, for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house. The plaint valued the declaration at Rs. 130 and the injunction at Rs. 5, and the suit was valued for purposes of pleader 's fee at Rs. 69,016 9 0 being the value of the estate. The suit was decreed by the Subordinate Judge, and against his decree the defendant preferred an appeal to the District Court, which allowed the appeal and dismissed the suit. The plaintiff took up the matter in second appeal to the High Court, and contended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court, and that the appeal to the District Court was incompetent. This contention was upheld, and the decree of the District Judge was set aside. It will be seen that the point in dispute was whether on the allegations in the plaint the value for purposes of jurisdiction was Rs. 135 or Rs. 69,016 9 0, and the decision was that it was the latter. No question of over valuation or under valuation arose, ' and no decision on the scope of section 11 of the Suits Valuation Act was given. As a result of its decision, the High Court came to entertain the matter as a first appeal and affirmed the decree of the Subordinate Judge. The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(2), and there, his contention was that, in fact, on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class, and that the District Court was the proper Court to entertain the appeal. The Privy Council held that this objection which was " the most technical of technicalities " was not taken in the Court of first instance, and that the Court would not be justified " in assisting an objection of that type," and that it was also untenable. Before concluding, it observed: " The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his (1) I.L.R. 36 Bom. (2) 46 I.A. 24. 125 opponent but to secure revenue for the benefit of the State. .The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State,but to obstruct, the plaintiff ; he does not contend that the Court wrongly decided to ' the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court. " Far from supporting the contention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity, these observations show that an objection of the kind now put forward being highly technical in character should not be entertained if not raised in the Court of first instance. We are therefore of opinion that the decree and judgment of the District Court, Monghyr, cannot be regarded as a nullity. It is next contended that even treating the matter as governed by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the under valuation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a bearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the appellants ' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under valuation they obtained right to two appeals, one to the District Court and another to the High Court. The complaint of the 126 appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High ,Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 1 1 of the Suits Valuation Act. The question, therefore, is, can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under valuation be set aside on the ground that on a true valuation that Court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan vs Cheriya Parvathi Nethiar (1), Mool Chand vs Ram Kishan (2) and Ramdeo Singh y. Baj Narain (3). In our judgment, the opinion expressed in these decisions is correct. Indeed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words "unless the overvaluation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum. A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing (1) I.L.R. 46 Mad. (2) I.L.R. 55 All. (3) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278. 127 defects of jurisdiction arising by reason of over valuation, or under valuation but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined. It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be Heard as a first appeal. Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh vs Rai Narain (1). There, Sinha J. observed that though the second appeal could not be treated as a first appeal, prejudice could be established by going into the merits of the decision both on questions of fact and of law,, and that that could be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or not, there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under section I I of the Suits Valuation Act itself. Das J., however, declined to express any opinion on this point, as it did not arise at that stage. The complaint of the appellants is that the learned Judges who heard the second appeal, though they purported to follow the decision in Ramdeo Singh vs A. Narain (1) did not, in fact, do so, and that there was no consideration of the evidence bearing on the questions of fact on which the parties were in dispute. That brings us to the question as to what is meant by prejudice" in section II of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties ? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the (1) I.L.R. 27 Patna tog; A.I. R, 1949 Patna 278. 128 conclusions reached by the lower appellate Court are right. If it agrees with those findings, then it will affirm the judgment; if it does not, it will reverse it. That means that the Court of second appeal is virtually in the position of a Court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view. It provides that overvaluation or under valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valution or under valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them. Section 103 was relied on in Ramdeo Singh vs Raj Narain (1) as conferring such a power. But that section applies only when the lower appellate Court has failed to record a finding on any issue, or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code. If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re hear the appeal itself on those questions. We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether 'the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section. So far, the definition of "prejudice" has been negative in terms that it cannot be mere change of forum (1) I.L.R. 27 Patna 109. 129 Dr mere error in the decision on the merits. What then is Positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever. since the enactment of the section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso, and there is no right of appeal against its deci sion. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case. No purpose, however, is. served by attempting to enumerate exhaustively all possible cases of prejudice which might come under section II of the Suits Valuation Act. The jurisdiction that is conferred on appellate Courts under that section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice. It is neither possible nor even desirable to define such a risdiction. closely, or confine it within stated bounds. Pt can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice, whenever the facts and ,situations call for it. Whether there has been prejudice or not is, accordingly, a matter to be determined on the facts of each case. We have now to see whether the appellants have suffered any prejudice by reason of the under valuation. They were. the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate 17 130 trial, it is they who appealed to the District Court as they were bound to, on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the deci sion went on the merits against the plaintiffs, they preferred section A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court fee paid, the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own. If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over valuation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is not the position under section 1 1 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to. the prejudice of their opponents, who had acquiesced therein ? There is considerable authority in the Indian Courts that clausts (a) and (b) of section I 1 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or." If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively, and the parties held entitled under section 1 1 (1) (b) to raise the objection for the first time in the appellate Court, even then, the recuirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one 's own act. Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it. Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court; ' it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

The appellant was the Managing Trustee of a public charitable trust maintaining a Dharamshala. He filed an application under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, XCIX of 1958 before the Naib Tehsildar, the third respondent to direct the fourth respondent, the tenant, to surrender four acres of land, on the ground that the lands were required for personal cultivation. According to the appellant, the necessary notices, terminating the tenancy of the fourth respondent, had been given and be was entitled to get pos session of the lands. The tenant raised a legal contention that inasmuch as the lands belonged to the Trust, the appellant could not be considered the landlord; the trust itself 'could not 'cultivate personally ' the lands within the meaning of the. Act and therefore the appellant 's application was not maintainable. This contention was overruled and the tenant ordered to surrender possession of the land to the appellant. However, the tenant 's appeal to the Special Deputy Collector, Tenancy Appeals, Akola, the second respondent, was allowed and this decision was confirmed in revision by the Maharashtra Revenue Tribunal, Nagpur. A writ petition filed by the appellant was summarily rejected by the High Court. On appeal to this Court, HELD : The appeal must be allowed and the order of the Naib Tehsildar restored. Under section 2(18), of the Bombay Public Trusts Act, a Trustee has been defined as meaning a person, in whom either alone or in association with other persons. the trust property is vested and includes a manager. In view of this definition, it is clear that in the present case, the properties of the Trust vest in the Managing Trustee the appellant; and he is the 'landlord ', under cl. (32) of section 2. As trustee, he would have to administer the properties for the purpose of carrying out the objects of the Trust; but, as the properties vest in him and he it a 'landlord ', he can ask for a surrender from the tenant of the lands of the Trust 'to cultivate personally '. He can cultivate the lands, either, by his own labour, or under the personal supervision of himself, by hired labour or by servants as contemplated under sub cls. (i) or (iii), of cl. (12) of section 2. As the properties vest in him. in law, cultivation by him, is to be considered 'on one 's own account. ' [444 H 445 C] Shri Kalanka Devi Sansthan, Patur vs Pandu Maroti [1963] Mh. L. J. 249, referred to. Buvasaheb vs Yesu Krishna, (1960) N.L.J. 219 and Kesheoraj Deo Sansthan Karanja v Bapurao, (1964) Mh. L.J. 589. distinguished.

N: Criminal Appeal No. 201 of 1971 Appeal by Special Leave from the Judgment and order dated the 10th March 1971 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 1165 of 1969. D. Mookerjee and R. L. Kohli for the appellant. H. section Marwah and R. N. Sachthey for respondent. The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana affirming the conviction of the appellant under section 165A, Indian Penal Code. The facts briefly are that the appellant, Bhagwan Singh, is a C.I.D. police constable and would be naturally familiar with Head Constable, Jagat Singh (P.W. 1). Jagat Singh had detected a case under section 411, I.P.C., on April 25, 1968. In that case one 922 Rameshwar Dass of Ambala City was arrested by Jagat Singh at Murthal Bus Stand after searching his person and recovering from him 20 gold coins and 47 gold bangles weighing 101 tolas. Rameshwar Dass was produced in court on April 27, 1968 and was remanded to judicial custody till April 29. In order to help Rameshwar Dass, Om Parkash and Sulekh Chand, who were co accused with the appellant (since acquitted) apparently took the help of the appellant to approach Jagat Singh to save Rameshwar Dass from the criminal case. The appellant suggested to Jagat Singh to substitute the seized gold coins by 20 other gold coins which he would be supplied with and if he would do that he would be paid Rs. 1000/ for this help in the criminal case. When this was proposed to Jagat Singh, the other two accused were with him. At first Jagat Singh refused to accede to this unusual request but later on asked him to see him at Dogra Hotel the same day at 5.30 P.M. While Jagat Singh gave that hope to the appellant and the two co accused, the former also immediately approached the Deputy Superintendent of Police, Gurbhaksh Singh (P.W. 6) and informed him about this matter. The D.S.P. recorded his statement which is marked as Ext. The D.S.P. sent for the Station House Officer of the Police Station, Sonepat, and directed him to go to the Dogra Hotel and arrange for the detection of the crime. Jagat Singh was also directed to go to the Hotel and meet the appellant and others as previously suggested by him. The D.S.P. along with the Sub Inspector, Ram Singh (P.W. 4), waited in a shop near the Dogra Hotel and after the appellant had passed the money to Jagat Singh a signal, as arranged, was given on which the raiding party rushed to the Hotel and found Jagat Singh and the appellant sitting on a table facing each other. At that time currency notes of the value of Rs. 1000/ were in the hands of Jagat Singh and these were taken possession of by the police and on search of the appellant 20 gold coins having hook marks were recovered from his pocket. The above story of the prosecution was sought to be established by the evidence of P.W. 1, Jagat Singh, P.W. 2, Ajit Singh, P.W. 4, Ram Singh, S.H.O., and P.W. 6, D.S.P., Gurbhaksh Singh. One of the witnesses of the raiding party was given up as being won over by the appellant. Nathuram (P.W. 3), proprietor of the Hotel, also did not fully support the prosecution case and was declared hostile by the prosecutor. The Special Judge, Rohtak, convicted the appellant and sentenced him to undergo rigorous imprisonment for one year and acquitted the other two co accused, as stated earlier. The High Court on appeal maintained the conviction and sentence. Hence this appeal by special leave. We have heard the learned counsel for the appellant and are unable to find any infirmity in the conviction. It is clear that the two co accused being interested in Rameshwar Dass took the help of the appellant to influence Jagat Singh for substitution of the stolen exhibits 923 in order that the case under section 411 IPC against Rameshwar Dass would absolutely fail. Jagat Singh was definitely approached by the appellant in view of his belonging to the same force and he attempted to bribe Jagat Singh by paying Rs. 1000/ which must have been supplied by the two co accused interested in Rameshwar Dass to ruin the prosecution case. Once the stolen gold coins were substituted, the identity would be lost and the accused would be entitled to acquittal and even the accused in that event might be able to claim the gold coins. The appellant thus attempted to bribe Jagat Singh in order to show favour to Rameshwar Dass by accepting the bribe. In this case the Public Prosecutor obtained permission from the court to cross examine P.W. Jagat Singh since he did not specifically refer to the two co accused in his examination in chief. Mr. Debabrata Mukherjee, on behalf of the appellant, submits that since the prosecution case rests principally upon Jagat Singh 's testimony, the whole edifice is destroyed on that witness being declared hostile and the appellant is entitled to an acquittal. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross examine the witness under section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under section 161 I.P.C. and the ingredients of section 165A I.P.C. are established against him. There is thus no merit in this appeal and the same is dismissed. S.R. Appeal dismissed.

Section 10(26)(a), Income tax Act, 1961 provides that a person is entitled to exemption from income tax if (1) he is a member of a Scheduled Tribe as defined in article 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned in section 10(26)(a). and (3) the income in respect of which exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section. The assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi Jaintia Hills Autonomous District referred to in para 20 of the Sixth Schedule to the Constitution. He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution. The Income tax officer held that . the income of the assessee from his salary arose in the non scheduled area and was not covered by the tax exemption provided under section 10(26) (a). In a writ petition under article 226 the assessee challenged the validity of 8. 10(26) (a) on the ground that the classification of members of Scheduled Tribes into those having income from a source within the specified areas and those having income from the source outside the areas was arbitrary. The High Court struck it down as violative of article 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person was made subject to tax merely because the source of that income was outside that area. Allowing the appeals of the Department, ^ HELD: The High Court was in error in holding that the classification contemplated by section 10(26)(a), Income Tax Act, 1961, was artificial and was not based on any intelligible differentia. [422D] 1 (a) . A taxation law, like any other law. has to pass the equality test of article 14, but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax. The mere fact that a tax falls more heavily on some in the same category, is not by itself a ground to render the law invalid. It is only when, within the range of its selection. the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of article 14. [420B D] " East India Tobacco Co. vs State of Andhra Pradesh, [1963] I S.C.R. 404; Vivan Joseph Ferriera vs Municipal Council of Greater Bombay, ; and Jaipur Hosiery Mills vs State of Rajasthan, , followed. (b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income Tax Act. The classification made by sub cl. (a) for the purpose of exemption is not unreal or unknown but conforms to a well recognised pattern and is based on intelligible differentia. The object of this differentiation between income accruing or received from a source in the specified areas and 12 522SCI/76 414 the income accruing or received from a source outside such areas IS to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically. [420F; 421E F] (c) If it is held that a member of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results. A non Tribal assessee in India may enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amount and thus evade tax. Also a tribal residing in the scheduled areas. earning large profits from business located outside the specified areas would be totally exempt while a non tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated. [421G H] (2) The decision in section K. Datta. Income Tax officer and or$. vs Lawrence Singh Ingty; , , on which the High Court had relied is no authority for the proposition that the exemption granted under section 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in sub cl. (a) of that provision. The sentence that "the exemption in question was not given to individuals either on the basis of their social status or economic resources. it was given to a class" occurring in that case could not be torn out of the contest and used for spelling out a proposition different from what was actually decided in that case. [419H; F] (3) The State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded ` the protection and benefit in the matter of promotion of their educational and economic interests embodied in article 46 of the Constitution. [422C]

Civil Appeal No. 1236 (Nce) Of 1975 Appeal under Section 116A of the R.P. Act from the order date 1.2.84 of the Gauhati High Court in E.P. No. 3 of 1983. C. section Vaidyanathan for the Appellant. Kapil Sibal, K K Lahiri and Mrs. Manik Karanjwala for the Respondent. The Judgment of the Court was delivered by 344 VARADARAJAN, J. This appeal by the respondent in Election Petition No. 3 of 1983 on the file of Gauhati High Court is directed against the judgment of a learned Single Judge, allowing the election petition and setting aside the election of the appellant Horangse from the Longkhim Chre constituency of the Nagaland Legislative Assembly on the ground of corrupt practice, namely, presentation of four red waist coats to three Gaon Burahs and one Barik of Lirise village on 27 10 1982 to induce them to cast their votes in his favour. The respondent/election petitioner, M. Tsubongse who contested as a Congress (I) candidate lost to the appellant who contested as a Naga National Democratic Party candidate (for short 'NNDP ') by a margin of 133 votes in the election held on 10 11 1982. He filed his election petition seeking the appellant 's election to be set aside on the ground that he was guilty of four instances of corrupt practice falling under section 123(1) of the Representation of People Act, 1951 (for short 'the Act ') and on three other grounds, namely: (1) display of a banner with the caption "Do not sell Nagaland to India", a corrupt practice within the meaning of section 123(3A) of the Act (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of section 123(6) of the Act and (3) use of government vehicles for the purpose of the election. The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and he allowed the election petition and set aside the appellant 's election on that ground. It is, therefore, necessary to set out the case of the parties briefly in regard to this single ground. The result of the election held on 10 11 1982 was announced on the day of counting 12 11 1982 by the Returning Officer, Tuesung. The respondent had secured 3082 valid votes while the appellant, who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and was declared elected by a majority of 133 votes. The respondent alleged in the election petition that the appellant gave four red waist coats to the voters Lisechem, P.W. 11, Lithrongse, P.W. 12, Murimong, P.W. 13 and Lithsaba at 4.00 p.m. On 27 10 1982 for inducing them to cast their votes in his favour in the presence of . Tsarise, P.W. 14 and Tselongse, P.W. 15 of Lirise village who witnessed the offer and reported the matter later to the respondent. 345 The appellant denied that the waist coats were given either by himself or in order to induce the recipients to cast their votes in his favour. His case was that he visited Lirise village some time prior to October 1982 and was received by the villagers who considered him as one of their leaders. In view of the custom of Nagas to receive guests or others and exchange gifts, he sent five waist coats to be given to four Gaon Burabs and the eldest Barik of the village long before the election process started. The waist coats ware not given to procure votes or to induce the recipients to cast their votes in his favour. Thus he denied that he committed and corrupt practice and contended that the election petition is not bona fide and has been filed only to harass him. During the trial the appellant 's case was that he sent the five waist coats as gifts through Tsarise, P.W. 14 in September 1982 and that he did not personally distribute them after the election process had started in order to induce the recipients to cast their votes in his favour. The dispute was thus confined to the date of distribution of the waist coats, namely, whether they were given in September 1982 or on 27 10 1982, as to whether the appellant gave them personally or sent them through P.W. 14 and as to whether they were given to induce the recipients to cast their votes in favour of the appellant or only to keep up the appellant 's promise made in August 1982 to send some gifts in return for the gift made to him E earlier as per custom. The respondent examined Lisechem, P.W, 11, Lithrongse, P.W. 12, Murimong P.W. 13, B. Tsarise, P.W. 14 and Tselongse, P.W. 15 for proving this item of corrupt practice. On the side of the appellant there is the evidence of the appellant R.W. 1, Chupongse, R.W. 3, Krishna Kumar R.W., 4 and Yanstsasi R.W, 5 about this charge. On a consideration of the oral and documentary evidence the learned Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he accordingly allowed the election petition and set aside the appellant 's election as stated above. However, the learned Judge did not rule out that the appellant had distributed red waist coats in September 1982 as`observed by him in paragraph 15 of his judgement which will be extracted in due course. 346 The appellant, R.W. 1 has denied in his evidence that he went to Lirise village on 27 10 1982 or presented the waist coats personally. He has stated that he visited that village two or three days after 15 8 1982 at the request of the Head Gaon Burah, R.W. 3, and was welcomed by the Gaon Burahs and others where P.W. 14, then a leading worker and member of the NNDP was also present and was taken to the house of R.W. 3 and presented with a shawl as per the custom of the Nagas and that as he had gone there urgently and had not taken anything to make a gift by way of return as per the custom, he promised to send some gifts later and he thereafter ordered under exhibit dated 2 9 1982 for the making of five red waist coats through Krishna Kumar, R.W. 4 and got them from him on 10 9 1982 and sent them in the same month through P.W. 14 being distributed to the Gaon Burahs of Lirise village. He has stated that he filed the nomination paper on 13 10 1982 and that P.W. 14 who was Area Council Member joined the Congress (T) party in the midst of the election and supported the Congress (I) candidate. Krishna Kumar, R.W. 4, the proprietor of a tailoring firm at Kohima has corroborated the evidence of R.W. I about placing of the order exhibit on 2 9 1982 and taking delivery of the waist coats on 10 9 1982. He has stated that exhibit written by the appellant is signed by him and that as the appellant was a known person he delivered the waist coats though exhibit was not surrendered to him on 10 9 1982. The Head Gaon Burah, R.W. 3 has corroborated the evidence of R.W. l that he met the appellant at Longkhim in August 1982 and requested him to visit Lirise village and that he accordingly came to Lirise village and was received in the Mong Mong month and presented with a cloth, and that the appellant regretted that he had not brought anything to be presented by way of return and promised to send waist coats later. He has further stated that P.W. 14 subsequently told him that the waist coats had arrived and he thereupon asked him to distribute them and give one of them to him also and they were given to him and other Gaon Burahs. Yanstasi, R.W. 5 has corroborated the evidence of R.W. 3 about the appellant 's visit, saying that two months before the election held in November 1982 he had gone to Lirise to meet the appellant, and that the appellant was received by the villagers and taken to the Head Gaon Burah 's house and presented with a sangtam cloth and that the appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later. R.W. 5 was Head Gaon Burah and he became Special 347 D.B. at Seotsing from 15 9 1983. He has denied that he had worked for the appellant in the elections held in 1977 and 1982, in both of which he had been declared duly elected. R.W. 3 has not been cross examined seriously about the month of the appellants visit to Lirise village, namely, Mong Mong month, which according to the evidence of R.W.5 is September in which the Mong Mong festival is celebrated by the Nagas. exhibit C was not filed in the court at the earliest stage. R.W I has stated in his evidence that his wife came across it after he had filed his written statement in the election petition and gave it to him for being Produced during the trial. May be, noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when they were actually delivered by R.W.4 to the appellant. P.W.14 has not been cross examined regarding the month in which he left the NNDP and joined Congress (I) party, which according to his evidence, was in August 1982. Similarly R.W. I has not been cross examined about when P.W.14 left the NNDP and joined the Congress (I) party, which according to his evidence, was in the midst of the election in which he filed the nomination paper on 13 10 1982. It is not improbable that the appellant had sent the waist coats through P.W.14 who was a prominent member of the NNDP and the Area Council member at that time for being distributed to the Gaon Burahs by way of return of the present of the shawl made to him during his earlier visit as per the custom amongst Nagas to exchange gifts during the visit of important persons like M.L.As. and others. The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at that time. The said custom amongst the Nagas is spoken to even by respondent P.W.1 who has stated in his evidence that normally villagers also would present gifts to visiting M.L.As. and the visiting M.L.As. also would . make presents to the villagers as per the custom of the Nagas. We find no satisfactory reason for rejecting the evidence of R.Ws. 1 to 5. As a matter of fact, even the learned counsel for the respondent in this appeal before the trial court does not appear to have seriously challenged the acceptability of the evidence of these witnesses in the course Or his arguments before the learned Judge. The learned Judge has stated in his judgment in regard to this matter thus: "It has been contended that even if it is assumed that the respondent (appellant in this appeal) had taken delivery of five red waist coats on 10 9 1982 as reflected in exhibit C, this would not rule out the distribution in October 1982. It is further submitted by the learned counsel for the petitioner (respondent in this appeal) that even if 348 distribution of some waist coats had taken place in September 1982 as deposed by R.Ws. 4 and 5, the same is not enough to discard the allegation of distribution of other waist coats in October 1982. This submission is apparently right inasmuch as because some persons had been given in September 1982 in pursuance of assurance made in August 1982 it would not by itself rule out the giving of such gifts in October, more so when the price of one waist coat seems to be around Rs. 100" The sum of Rs. 100 per piece mentioned by R.W.1 in his evidence is the price of each of the blankets which he had distributed to some persons in the village in 1981 and not of each of the waist coats given in 1982. It is not the case of any of the parties that waist coats were presented by or at the instance of the appellant once in September 1982 and again to the same Gaons Burah in October 1982. Nor is it probable that only waist coat would have been presented on both the occasions to the same individuals Even if the evidence of R.Ws. 1 to 5 is considered to be unsatisfactory to prove that the red waist coats were presented only in September 1982 and not in October 1982, that does not mean that the respondent 's case that the red waist coats were given to P.Ws. 11, 12 and 13 on 27.10.1982 to induce them to cast t heir votes in favour of the appellant stands proved. The respondent has to prove his case which is disputed by the appellant independently of the fact whether the appellant has proved his defence or not. Now we proceed to consider the evidence of P.Ws.11 to 15. Lisechem, P.W.11, a Gaon Burah of Lirise village mentioned the date of the appellant 's visit first as 27.9.1982 and then corrected it as 27.10.1982 and again stated that he does not remember the month or dale of receipt of the waist coat by him from the appellant and he has added that it was after the date of the election. He has stated that the appellant came to his house on 27.10.1982 and gave him a red waist coat and asked him to cast his vote in his favour and not to inform others about the presentation of the waist coat and that soon after the appellant left his house, P.Ws. 14 and 15 came to his house and asked him about what had been given to him by the appellant and he thereupon showed that waist coat to them and told them that it was given to him. Lithrongse ' P.W.12, another Gaon Burah of Lirise village has 349 stated that the appellant came to his house at 4.00 p.m. On 27.10.1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that soon after the appellant left his house, P.Ws 14 and 15 came there and asked him as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later. He is unable to deny that appellant visited the village in August or September 1982 or to say whether it was in 1981 when admittedly he received a blanket from the appellant on a prior occasion when the appellant was the Deputy Speaker of the Legislative Assembly. It is seen from his evidence that P.W. 15 belongs to the Congress (I) party and that P.W. 14 was previously in the NNDP and had subsequently joined the Congress (I) party. Muri Mong, P.W. 13 of Lirise village has stated in his evidence that the appellant came to his village after 4.00 p.m. On 27.10. 1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that a minute after the appellant left his house, P.Ws. 14 and 15 came there and asked him if a waist coat was presented to him by the appellant. He has denied that P.W. 14 gave the waist coat to him in the first party of September 1982 and that the appellant did not visit his village or present the waist coat on 27.10.1982. He has stated that he is an old man and that he does not remember months and dates. Tsarise, P.W. 14 who was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress (I) party in August 1982. He has stated in his evidence that the appellant came to Lirise village on 27.10.1982 and visited the houses of P.W.11, Lithsabha and P.Ws. 12 and 13 in that order at about 4.00 p m. and that he and P.W.15 went to those houses within a few minutes after the appellant 's departure from there and those persons individually told them that the appellant gave them a waist coat and asked them to cast their votes in his favour. He has admitted that when he visited the house of P.Ws.11 to 13 and Lithsaba he asked them to remember the date and the time and not to deny it later. He has denied that the appellant sent the red waist coats through him in the early part of September 1982 for distribution amongst Gaon Burahs of Lirise village. Tsalongse, P.W. 15 does not remember the date of the appellant 's visit to Lirise village. He has, stated in his evidence that the 350 appellant came to the village in the election period and asked the people to cast their votes in his favour. He claims to have gone to `the house of P.W. 14 and to have seen from there the appellant visiting the houses of P.W. 11. Lithsaba and P.Ws. 12 and 13 one after, the other. He has stated that he and P.W. 14 went to those houses soon after the appellant left the places and they individually told them that the appellant gave red waist coats and asked them to cast their votes in his favour. He has denied that the appellant neither visited Lirise village nor presented waist coat on 27.10.1982. It is significant to note that though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4.00 p.m. On 27.10.1982 for inducing them to cast their votes in his favour in the presence of P.Ws. 14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent P.Ws. 14 and 15 do not claim in their evidence personal knowledge about the offer presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in his favour. Admittedly, P. Al. 14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places. It is clear that these three witnesses. I l to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember. P W. 14, who was a staunch worker of the NNDP and had switched over to the Congress (I) party to which P.W. 15 belongs, some time before the election. and P.W. 15 are the interested witnesses. P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. I l to 13 in Lirise village only thereafter. If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour. The evidence of P.Ws. 11 to 13 that P.Ws. 14 and 15 came to their houses within minutes after the appellant left the place and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to them with a request to 351 favour him with their votes, they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable. We are, therefore, not impressed with the evidence of P.Ws.11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and others. On the evidence of R.Ws. 1 to 5, which we accept, we find that the appellant got the waist coats distributed through P.Ws. 14 who was then a staunch worker of the NNDP in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries. The evidence let in by the respondent to prove this item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily. We are, therefore, unable to uphold the judgment of the learned Judge, setting aside the appellant 's election on the ground of the alleged corrupt practice. We accordingly allow the appeal with costs in both the courts and set aside the judgment of the learned Judge. S.R. Appeal allowed.

The petitioners entertained grave doubts as to the propriety of holding the Presidential election before the general elections had been completed throughout the entire territory of India and, by applications filed under article 71(1) of the Constitution as citizens of India, invoked the jurisdiction and power of the Supreme Court thereunder to inquire into such doubts and sought for an order restraining the Election Commission from taking the poll in connection with the election of the President, fixed for May 6, 1957, till the general elections in the Union territory of Himachal Pradesh and in two Lok Sabha Constituencies of the State of Punjab, which were still to be held, had been completed. The expiry of the term of office of the then President which caused the Presidential election was to come about on the mid night of May 12, 1957. One of the petitioners alleged that he was a candidate for the Presidential election and the time intervening between the date when he received his nomination paper and the date fixed for the filing of it was too short to enable him to file it within time and the case of the other was that he was a prospective candidate for election to the Lok Sabha from one of the Punjab Constituencies, where election was yet to be held, and would be prevented from exercising his right to vote for the election of the President. Held, that the present petitions were premature and must be dismissed. ^ The jurisdiction and power conferred on the Supreme Court by article 71(1) of the Constitution to inquire into and decide doubts and disputes arising out of and in connection with the election of the President can be exercised only after a particular candidate has been declared elected and on an election petition filed under section 14 of the Presidential and Vice Presidential Election Act of 1952. The word 'election ' in article 71 of the Constitution is used in the wider sense to denote the entire process of election culminating 139 1082 in a candidate being declared elected and doubts and disputes arising out of and in connection with such election must include all doubts and disputes relating to any particular stage of it. N. P. Ponnuswamy vs Returning Officer, Namakkal Constituency, ; , referred to. It is a well recognised principle of the law of election that an election cannot be held up to facilitate the ventilation of individual grievances in derogation of the interest of the people in general and article 62 Of the Constitution, which requires that the election of President must be completed within the time fixed by it and has been conceived in such interest, is mandatory in character,

it Petition No. 319 of 1974. Petition under Article 32 of the Constitution. Anil Kumar Gupta, for the petitioner. P. Chatteriee and G. section Chatterjee, for the respondents. The Judgment of the Court was delivered by BHAGWATI, J. The petitioner challenges his detention under an order dated 10th September, 1973 made by the District Magistrate, 594 Burdwan under section 3(2)(i) of the . There were several grounds urged before us for challenging the validity of the order of detention but it is not necessary to refer to them since we find that there is one ground which is sufficient to dispose of the petition. To appreciate this ground it is necessary to notice a few facts. The order of detention was made on 10th September, 1973 and it was based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. This subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminums wire alleged to have been committed by the petitioner on 14th April, 1973. It appears that in respect of this incident a criminal case was filed inter alia against the petitioner in the Court of Sub Divisional Judicial Magistrate, Asansol, but, as the affidavit in reply filed by the District Magistrate shows, the witnesses were unwilling to depose against the petitioner in open Court on account of fear of danger to their life and the prosecution was , therefore, constrained to drop th criminal case and the petitioner was discharged. However, the date when the petitioner was discharged was not set out in the affidavit in reply. The petitioner was thereafter detained on 23rd November, 1973 pursuant to the order of detention. There was thus a time lag of about two and a half months between the date of the order of detention and, the date when the petitioner was actually detained. The petitioner contended that since, the District Magistrate did not state in his affidavit in reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged on or about 10th September, 1973 and was available for being detained under the order of detention and yet he was not arrested for a period of two and a half months until 23rd November, 1973 and that shows that there was no real necessity to detain the petitioner with a view to preventing him from acting in a prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine. There is great force, in this contention of the petitioner and it must result in invalidation of the order of detention. It is obvious from the facts set out in the affidavit in reply that the, petitioner was arrested in connection with the criminal case arising out of the incident dated 14th April, 1973 set out in the grounds of detention. The criminal case was ultimately dropped as the witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. The date of discharge of the petitioner was, however not set out in the affidavit in reply. We asked the learned counsel appearing on behalf of the respondent as to whether.there was any record with him from whick he could tell us as to ' What was the date on which the petitioner was discharged but he stated that the only record which he had was that 595 relating to the order of detention and the record relating to the criminal case had not been sent to him. We were told that even the history sheet of the petitioner, which was before the District Magistrate when he made the order of detention, did not give the date when the criminal prosecution was dropped that the petitioner was discharged. It did not even make any reference to the criminal case. This is rather unfortunate. He should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate. But that is a different question altogether and it need not detain us. The fact remains that there was no record with the learned counsel appearing on behalf of the respondent from which he could give us the date when the petitioner was discharged. In view of this failure on the part of the respondent to supply information to the Court as to then the petitioner was discharged, we must proceed on the assumption that he must have been discharged on or about 10th September, 1973. The order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner can, therefore, be presumed to have taken place at or about the time when the order of detention was made, that is, 10th September, 1973. But if that be so, the conclusion is inescap able that though the petitioner was available for detention since about 10th September, 1973, he was not detained for a period of about two and a half months upto 23rd November, 1973. There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and this delay, unless satisfactorily ex plained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention. It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after the invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. of course when we say this we must not be understood to mean that whenever there is delay in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar acts and circumstances. The detaining authority may have a reason able explanation for the delay and that might be sufficient to dispel 596 the inference that its satisfaction was not genuine. But here we find that though an affidavit in reply was filed by the District Magistrate himself, no explanation was forthcoming in this affidavit as to why the petitioner was not arrested until 23rd November, 1973, though the order of detention was made as far back as 10th September, 1973. The learned counsel appearing on behalf of the respondent contended that the State was not expected to render any explanation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus. It is the obligation of the State or the detaining, authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable, the State must give reasons explaining the delay. Vide Sk. Serajul vs State of West Bengal.(1) Since in the present case no explanation for the delay has been given in the affidavit in reply filed by the District Magistrate, we are not at all satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied and consequently the order of detention must be quashed and set aside. We accordingly quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith. V.P.S. Petitioned allowed.

The Regional Transport Authority granted a permit to the appellant but this decision was reversed by the State Transport Appellate Tribunal. In a petition under article 226 of the Constitution a single Judge of the High Court, on an examination of the merits of the case, reversed the view of the Stale Transport Appellate Tribunal. On appeal, a Division Bench of the High Court held that a full scale reappraisal of the points was in excess of the jurisdiction of the single Judge under article 226. the Division Bench restored the order of the State Transport Appellate Tribunal. On appeal to this Court, remitting the, case to the State Transport Appellate Tribunal, ^ HELD: The boundaries of the High Court 's jurisdiction under article 226 of the Constitution are clearly and strongly built and cannot be breached without risking jurisprudential confusion. The power of the High Court under article 226 be supervisory in nature. [103E] Sri Rama Vilas Service (P) Ltd. vs C. Chandrasekharan ; referred to. The single judge had undertaken an evaluation of the merits on his own which was beyond his jurisdiction. The Division Bench disposed of the case in a short paragraph which hardly did justice to the order appealed against. But while reversing the order appealed against valid reasons had to be adduced. While the Division Bench was justified in observing that, sitting on the writ side, judicial review should have been more restricted than while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the Appellate Tribunal. [103G, H; 104A B]

ivil Appeal No. 3693 of 1989. 734 From the Judgment and Order dated 23.2. 1989 of Delhi High Court in R.S.A. No. 31 of 1989. K.S. Bindra, R.K. Maheshwari and G.S. Gujananip for the Appellant. Prem Sunder Jha for the Respondent. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave arises out of a suit filed by the respondent company against the appellant, Municipal Corporation of Delhi, for a mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit. Initially the suit was filed for a prohibitory injunction from disconnecting the electric connection. The plaint was amended following stoppage of the supply of energy. According to the plaintiff 's case, the suit had to be filed as the Delhi Electricity Supply Undertaking was threatening disconnection without disclosing any reason. Subsequently, some officers of the Undertaking made an inspection of the meters and alleged theft of electricity after tampering with the seals affixed on the meters. A First Information Report was lodged with the police. Admittedly no notice was served by the Delhi Elec tricity Supply Undertaking on the plaintiff before severing the electric connection. The learned trial court, however, dismissed the suit and the plaintiff appealed. The First Additional District Judge, Delhi, who heard the appeal decreed the suit on the sole ground of nonservice of notice as required under condition No. 36 in regard to supply of electricity by the appellant. The Delhi High Court dismissed the appellant 's second appeal at the admission stage by a reasoned judgment. The learned counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply. We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously deny ing the allegation of theft and it is not possible to assume the accusation as correct without a full fledged trial on this issue. The case of Jagarnath Singh vs B.S. Ramaswamy; , ; relied upon on behalf of 735 the appellant is clearly distinguishable inasmuch as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for discon nection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned counsel for the appellant urged that the Delhi Electric Supply Undertak ing will seriously suffer if this view is upheld. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discon tinuing the supply. It has to be appreciated that the licen see Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim. In the result, the appeal is dismissed but, without costs. P.S.S. Appeal dismissed.

In a Writ Petition flied before this Court, the peti tioner assailed the order of his compulsory retirement from service made under rule 56(j)(i) of the Fundamental Rules. The petitioner contended that he was efficient, had clear and unblemished record of service and his character roll entries were excellent, and since no review has been made six months before he attained the age of 50 or completed thirty years of service nor he had been retired on the basis of review, he was entitled to continue upto the normal retirement age of 58. On behalf of the respondents, it was contended that the order of retirement was made in public interest after review and that the Committee had concluded after reviewing com plete record of service and considering the quality of work on the whole, that the petitioner was not fit to be retained in public interest. Dismissing the Writ Petition, this Court, HELD: 1.1 Compulsory retirement under rule 56(j)(i) is not a punishment as it does not take away any of the past benefits. Chopping off the dead wood is one of the important considerations for invoking rule 56(j)(i) of the Fundamental Rules. [786G] 1.2 An aggrieved civil servant can challenge an order of compulsory retirement on the ground (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbi trary decision. If the civil servant is able to establish that the order suffered from any of these infirmities, the Court has jurisdiction to quash the same. [786F G] Union of India vs Col. J.N. Sinha & Anr., [1971] 1 SCR 791, referred to. 784 In the instant case, on the basis of the service record, the Committee formed the requisite opinion that the peti tioner had ceased to be useful and, therefore, should be retired prematurely. The petitioner has not placed any satisfactory material to prove that the decision was based on collateral grounds. Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary. The service record of more than five years shows that the higher officers under whom the petitioner had worked were different and different sets of reviewing offi cers had also made the entries. Therefore, the reports must be taken to have reflected an appropriate and objective assessment of the performance of the petitioner. [786H; 787A B]

No. 1854 of 1973. Petition under Article 32 of the Constitution of India. V.M. Tarkunde, Shyania Pappu, D. D. Sharma and Ashok Kunnar Srivastava, for the petitioners. L.N. Sinha, Solicitor General of India and R. N. Sachthey for respondents nos. B. P. Maheshwari for respondent No. 3. R.K. Garg, section C. Agarwal, section C. Bhatnagar, V. J. Francis and section K. Mehta, for respondents nos. The Judgment of the Court was delivered by UNTWALIA, J. The four petitioners in this petition under Article 32 of the Constitution of India are working as Additional District & 556 'Sessions Judges in the Delhi Higher Judicial Service at Delhi. Their ,prayers in ,his writ petition are to strike down Rules 9(a) and 11 of the Delhi Judicial Service Rules, 1970 as being ultra vires and violative of Articles 14 and 16 of the Constitution and to declare Rule 8 of Delhi Higher Judicial Service Rules, 1970 as void and unconstitutional. Their further prayer is to quash the fixation of the seniority of the petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the ,,gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service. All the four petitioners originally belonged to the Punjab Civil service (Judicial). Shri Joginder Nath, petitioner No. 1 joined ,he said service on 2.7.1956, Shri D. C. Aggarwal, petitioner No. 2 on 2.7.1957, Shri section R. Goel, petitioner No. 3 on 8.7.1957 and Shri P. L. Singla, petitioner No. 4 on 10.10.1958. Prior to 1966, the Union .Territory of Delhi for the purposes of administration of Justice was included within the territorial Jurisdiction of the erstwhile Punjab High ,Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab. There was no separation of Executive and Judiciary. The Magistrates were selected on ad hoc basis from the States of U.P. and Punjab and were posted to work as such ::at Delhi. Later on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all judicial posts. A separate High Court for Delhi was constituted on the 31st October, 1966. The arrangement in regard to Judicial officers in the lower Courts however continued as before. In 1969 under the Union Territories (separation of Judicial and Executive functions) Act, the magistracy in Delhi was split up into two parts with effect from 2.10.1969. Some magistrates ,.of the State Civil Service, Executive Branch, were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the ,control of the Delhi Administration as before. In pursuance of the 'Scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969. They were formerly Officers of the U.P. Judicial 'Officers Service. Respondent No. 6 was a member of the Haryana Civil Service (Judicial). Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in U.P. and .thereafter in Delhi. The petitioners case is that on 27 8 1970 the Lt., Governor of Delhi, respondent No. 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 under Article 309 of the Constitution read with certain notifications of the Government of India, Ministry of Home Affairs. A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judical Service Rules. On the basis of the recommendations of the Selection Committee, respondent No. 2 made 'appointment of officers by way of initial recruitment to the Delhi 557 Judicial Service under Rule 8. 61 officers were selected. It may however, be stated here that as per the statement in the counter affidavit filed on behalf of respondent No. 2 only 49 officers joined. The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial nos. 6, 9, 12 and 13 respectively while the respective serial nos. assigned to respondents 3 to 6 were 1, 2, 4 and 7. It would thus be seen that respondent No. 6 was junior to petitioner No. 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown us senior to all the petitioners. The petitioners claim that they were formerly permanent members of the Punjab Civil Service Judicial Branch in the time scale of Rs. 4001250. They had been put in the selection grade also in the scale of Rs. 1300 1500. On the other hand, respondents 3 to 5 were euphemistically called Judicial Officers in U.P. the State of their parent service. They were in a lower scale of Rs. 300 900. The next higher scale on being appointed to the post of Additional District Magistrates was Rs. 400 1000/ . The petitioners ' grievance is that Rule 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under Rule 9(a) on the basis of length of service was bad. It was fixed by a notification dated 2.8.1971 and was subject to revision on good cause shown. Respondents 3 to 5 had joined service in the year 1947 as Judicial Officers which was not a cadre service. It was only on 1.4.1955 that a regular cadre of Judicial officers was created in U.P. but it was different and distinct from the U.P. Civil Service Judicial Branch. Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge, in spite of their longer service in the cadre of U.P. Judicial Officers Service. The petitioners case further runs thus : Petitioner No. 1 was promoted to the post of Additional District Judge with effect from 24.1.1972and the petitioners 2 to 4 were so promoted with effect from 25.3.1972.Respondents 3 to 5 were not considered to have qualified themselves for being promoted as Addl. District Judges. One, of the reasons for not promoting them to the higher judicial service was that they had not received requisite training in I the Civil Law. Accordingly they were by passed and in the meantime they were given powers of the Subordinate Judges to enable them to get requisite training in Civil Law. Respondent No. 6 was posted as Sub Judge, First Class and demoted from the post of a Senior Sub Judge on account of inefficiency. He was not enjoying the selection grade of Haryana Civil Service (Judicial Branch) at the time of his appointment to Delhi Judicial Service while the petitioners were in such grade in their parent service. Respondents 3 to 5 were later promoted as Additional District Judges on 2.6.1972 and respondent No. 6 was promoted in June, 1973. Thus all of them were promoted to the higher Judicial Service after the Petitioners. Yet they were made to ranks senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicial Service Rules. Respondent No. 6 in spite of his appointment 558 as an Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of Rule 8 aforesaid. Mr. Tarkunde, learned counsel for the petitioners submitted support of the Writ Petition the. following points : 1. Rule 9(a) of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of the Constitution and because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any Judicial service from before. In any event respondents 3 to 5 could not be _appointed to the Delhi Judicial Service under Rule 9(a). Rule 1 1 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution in as much as it equates length of Judicial service with the length of non judicial service for the purpose of fixation of seniority and thus it makes unequals as equals. Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one. A counter affidavit has been filed on behalf of respondent No. 2 and learned Solicitor General appeared to oppose the rule on his behalf. various counter affidavits were filed on behalf of respondents 3 to 6 and Mr. Garg who appeared on their behalf informed us that respondent No. 3 has since retired and the petitioners could not be ,/granted any relief against him. He, however, raised a preliminary objection to the maintainability of the Writ petition on the ground of delay. He submitted that the seniority fixed on 2.8.1971 by list Annexure E/1 to one of the rejoinders could not be challenged by filing a writ application in September, 1973. He further pointed out that the said seniority list has been revised and substituted by a new list dated 2.6.1973, a copy of which is Annexure R 4/1. The peti tioners have not challenged the correctness of that list in which had merged the first list dated 2.8.1971. In our opinion on the facts and in the circumstance of this case the preliminary objection raised on behalf of the respondents cannot succeed. The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 2.8.1971 This was subject to revision on good cause being shown. Petitioners also, as we shall show hereinafter in this Judgment on one ground or the other, wanted their position to be revised in the seniority list. They, however, did not succeed. A revised seniority list was issued on 2,6,1973. The filing of the writ petition was not designedly delayed thereafter. 'Since the petitioners ' position in the seniority list vis a vis respondents 3 to 6 had not been disturbed in the new list dated 2.6.1973 it was sufficient for the petitioners to challenge the list dated 2.8.1971. We shall point out in this judgment that except the promotion to the posts of Additional District Judges, the seniority in relation to which 559 also is under challenge in this writ application, nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters. The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners. It has been pointed out by Hidayatullah, C.J. in the case of Tilokchand Motichand & Ors. vs H. B. Munshi & Anr.(1) at page 831 "The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court. " The learned Chief Justice had said at page 832. "Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose. In the case of Rabindra Nath Bose & Ors. vs Union of India & OrS.(2) Sikri J, as he then was, delivering the judgment on behalf of the Court has said at page 712 : "The highest Court in this land has been given Original Jurisdiction to entertain petitions under article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. " But under what circumstances a petition under article 32 of the Constitution should be thrown out on the ground of delay, has been pointed out in the last paragraph on that page by observing. "it would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back. and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. " On the facts of this case the petition was held to have been filed after inordinate delay. In a recent decision of this Court, Bhagwati, J. delivering the judgment on behalf of the bench of five Judges in Ramchandra Shankar Deodhar and others. vs The State of Maharashtra and others(3) it age 265 has said "In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. " on the facts and in the circumstances of this case we do not feel persuaded to throw out the petition on the ground of delay as there is none to disentitle the petitioners to claim relief. The two impugned rules in this case were made by the Lt. Governor of Delhi in consultation with the High Court of Delhi in exercise of his powers conferred by the proviso to article 309 of the Constitution (1) (2) (3) A.I. R. , L 319 Sup CI/75 560 r/W certain notifications of the Government of India, Ministry of Rome Affairs. The Delhi Higher Judicial Service Rules regulating the recruitment and condition of higher service could indisputably be made under the proviso to article 309 article 234 says : "Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with State Public Service Commission and with the High Court exercising Jurisdiction in relation to such State. " It was not disputed on either side that the word "State" in the said Article would include a Union Territory also. But the learned Solicitor General pointed out that there was no judicial service in the Union Territory of Delhi before its creation by initial recruitment to the service under the Delhi Judicial Service Rules. The initial recruitment to the service could be made only under la valid rule framed under article 309 Framing of a rule under article 234 was not necessary. We may, however, point out that part IV of Delhi Judicial Service Rules refers to recruitment to the service after the initial recruitment. In our opinion, however, the rules framed by the Lt. Governor for appointment to the Delhi Judicial Service either at the initial stage or thereafter cannot be held to be invalid merely because they were not framed in accordance with article 234. Rules framed under article 309 in consultation with the Delhi High Court were good and valid and cannot be assailed. When it was pointed out to the learned counsel of the petitioners that on the argument advanced with reference to article 234 even the initial recruitment of the petitioners to the Delhi Judicial Service was in jeopardy, the point was ultimately given up and not pressed. The constitution and strength of the Delhi Judicial Service as provided in rule 3 of the Delhi Judicial Service Rules will be of the service consisting of two grades namely Grade I (Selection Grade) and Grade 2. The posts in Grade I shall be civil posts, class I Gazetted, and those in Grade 11 shall be civil posts, class 11 Gazetted. Clause (d) of Rule 3 provides A "person appointed to the service shall be designated as Subordinate Judge or Judicial Magistrate or as Subordinate Judge or Judicial Magistrate or as Subordinate Judge cum Judical Magistrate in accordance with the duties being discharged by him for the time being." The posts borne on the permanent strength of the service and the posts included therein have been specified in the Schedule appended to the rules. 10% of the permanent strength of the service will be the posts in the selection grade. A Selection Committee was constituted consisting of 3 Hon 'ble Judges of the Delhi High Court, the Chief Secretary and a Secretary of the Delhi Administration. The initial recruitment was made by the Lt. Governor in accordance, with Rule 9 which reads, as follows : "9. For initial recruitment to the service, the Selection Committee shall recommend to the Administrator suitable persons for appointment to the service from amongst the following : (a) Subordinate Judges and Law Graduate Judicial Magistrates working in the Union territory of Delhi on deputation from other States; 561 (b) members of Civil Judicial cadres of States whose names may be recommended by their respective State Governments for appointment, and (c) members of the Delhi Himachal Pradesh and Andaman and Nicobar Islands Civil Service, who are Law Graduates. The consent of the officer to be recommended and the consent of his parent Government shall be necessary before his appointment to the service.", It would thus be noticed that the Selection Committee was to recommend only "suitable persons" for appointment to the service. It is stated in paragraph 12 of the writ application that clause (c) of Rule 9 was struck down by the High Court of Delhi in Writ Petition No.1322/70 D. K. Paddar vs Lt. Governor at Delhi. We are not concerned in this case with clause (c). The source of the initial recruitment to the service under clause (a) was Subordinate Judges who necessarily belong to the Judicial cadre of a State and Law Graduate Judicial Magistrates (not merely Judicial Magistrates) working in the Union territory of Delhi. The creation of the service being only in two grades, grade 2 and grade I (selection grade) and there being no provision for appointment in the selection grade at the stage of the initial recruitment of the service it is plain that all those who fulfilled the qualifications laid down in clause (a) of Rule 9 and who were found "suitable" by the Selection Committee could be initially recruited to the Delhi Judicial Service. Even Judicial Magistrates have been put on a par with the Subordinate Judges. None of the respondents 3 to 5 either in their parent service in U.P. or in the Union Territory of Delhi was a Magistrate on the Executive side. All of them were doing the work of Judicial Magistrates and of Revenue officers which also included performance of judicial duties. It is difficult to find any trace of invalidity in rule 9(a) of the Delhi Judicial Service Rules. For the purpose of initial recruitment to the service, officers of the judicial cadre of a State and officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together. There was no infraction of articles 14 and 16. In the counter affidavit filed on behalf of respondent 2 it is mentioned that respondents 3 to 5 were in the regular cadre of U.P. Judicial Officers w.e.f. 1.4.1955. It has been pointed out by this Court in the case of Chandra Mohan vs State of Uttar Pradesh & Ors. (1) at page 80 "that the expression "judicial officers" is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties." Strictly speaking the expression "Judicial duties" was held to be a misleading one for the purpose of recruitment to the higher judicial service in accordance with article 233 of the Constitution. In the context and set up of the Article it was pointed out that the source of service for appointment as a District Judge must be the Judicial service and not any service. It is plain that the same principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by article 233. (1) 562 Rule 11 of the Delhi Judicial Service Rules reads as follows "11. The Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre, to which they belong at the time of their initial recruitment to the service. Provided that the inter se seniority as already fixed in such cadre shall not be altered. " The question for determination is was there any infirmity in rule 1 1 ? Did it put unequals with equals and violated article 14 of the Constitution? Was the rule arbitrary and discriminatory? Once the Selection Committee found persons belonging to clause (a) of Rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper places in the matter of seniority. They were all being initially appointed to the Delhi Judicial Service wherein there was no separate gradation of posts. The assignment of duties was to follow on the basis of seniority list. Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good. The petitioners could not have any grievance in that regard. On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their parent cadre. Was it possible to have a different yardstick, some other date or shorter period for fixation of the seniority of the law graduates judicial magistrates on their initial recruitment to the service ? from which date their seniority ought to have been reckoned ? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service. Even so what would have been the basis of determining their seniority inter se ? The questions posed are suggestive of the answers. Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under rule 1 1 of the Delhi Judicial Service Rules was justified, legal and valid. Had it been otherwise it Would have been discriminatory. It was not equating unequals with equals. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment. Nor was it possible to take any other date in between the period of their service in their parent cadre. It would have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for. the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial service. It was not possible or practical measure their respective merits for the purpose of seniority with mathematical precision by a barometer. Some formula doing largest good to the largest number had to be evolved. The only reason able and workable formula which could be evolved was the one engrafted in rule 11 of the Delhi Judicial Service Rules. 563 The decision of this Court in Kunnathat Thathunni Moopil Nair vs The State of Kerala and another(1) relied on by the petitioners is clearly distinguishable. Sinha, C.J. 'in his judgment at page 92 pointed out the nature of equal burden of tax placed upon unequals and said "It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. It is one of those cases where the lack of classification creates inequality." In the instant case for the purpose of fixing the seniority at the stage of the initial recruitment to the Delhi Judicial Service, no other classification, no different yardstick was possible. The inequality was avoided to a large extent by rule 1 1. The case of Jalan Trading Co. (Private Ltd.) vs Mill Mazdoor Union (2) is also of no help to the petitioners. Distinguishing Moopil Nair 's case [1961(3) S.C.R. 77] Shah, J. as he then was pointed out at page 36 : "If the classification is not patently arbitrary, the Court will not rule it discriminatory merely because it involves hardship or inequality of burden. Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved by the law. " The principles enunciated when applied correctly to the facts of the instant case rather go against the petitioners. "Equal treatment of unequal objects" even if we prefer to call them different classes, is not discriminatory in this case ,as there is a rational relation to the object intended to be achieved by the law. The object of the Delhi Judicial Service Rules was to create, a service by integration of different classes of persons already working as Judicial officers. The fixation of seniority on the basis of length of service in their respective parent cadres bad a rational nexus to the object intended to be achieved. One of us in the case of The State of Gujarat and another etc. vs Shri Ambica Mills Ltd. Ahmedabad etc(3) delivering the judgment on behalf of the Court hag pointed out at page 1313 : "A reasonable classification is one which includes all who are similarly situated and non who are not. The question then is : what does the phrase 'similarly situated ' mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. " In the instant case treat in the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law. We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that rule 11 of Delhi Judicial Service Rules is bad as being violative of articles 14 and 16 of (1) ; (2) ; (3) ; 564 of the Constitution. It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis a vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with rule 11. Two more facts need be noted here in connection with the question of seniority and they are these : A notification dated September 30, 1967 was issued by the Governor of U.P., a copy of which is Annexure 'H ' to the rejoinder on behalf of the petitioners to the counter affidavit filed by respondent 2 under article 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall, With effect from October 2, 1967, apply in relation to such magistrates including additional District Magistrates (Judicial), in the State as belong to the Uttar Pradesh Judicial officers Service as they apply in relation to persons appointed to the Judicial Service of the State subject to the certain exceptions and modifications mentioned in the said notification. It is no doubt true that respondents 3 to 5 were already on deputation to the Union territory of Delhi. Yet they could not be denied the advantage of this notification in principle. They were doing the judicial work in Delhi and on initial recruitment to the Delhi Judicial Service became its fulfledged members. The letter dated September 29, 1967, a copy of which is Annexure R 4/5 to the supplementary affidavit of the respondent No. 4 written by the Chief Secretary to the Govt. of U.P. to the Registrar, High Court of Allahabad also supports the above position. It is admitted that on or from 2.10.1969 there was no separation of Executive and Judiciary in Delhi also and all officers working on the judicial side were placed under the control of the Delhi High Court. Annexure "A" to the counter affidavit of respondent No. 2 is a copy of the order dated 18th December, 72 passed by Hon 'ble Mr. Justice V. section Deshpande and Hon 'ble Mr. Justice section Rangarajan of the Delhi High Court. The representations of the petitioners were rejected. The order indicates that the initial recruits were given seniority ac cording to the length of service in their cadres. The representationists accepted this position and the matter was close. Their new stand that since they belonged to the selection grade of Subordinate Judges in the Punjab and Haryana Judicial Service cadre they ought to have been appointed to such a grade in Delhi Judical Service even at the time of initial recruitment was not accepted to be correct. It is, therefore, plain that on initial recruitment to the Delhi Judicial Service all those who are recruited including the petitioners and respondents 3 to 6 were at par and the fixation of their seniority in accordance with rule 11 of the Delhi Judicial Service Rules was legal and valid. The facts in relation to the 6th respondent are these. This respondent also formerly belonged to the combined Punjab Civil Service (Judicial) P.C.S. cadre. This respondent and petitioner No. 1 were selected in the open competition together and later joined the Judicial Service in the year 1956. Both were confirmed in the year 1958. Petitioner No. 1 was senior to respondent No. 6 Petitioners 2 to 4 joined the same service later and were junior to respondent No. 6. When the State of Punjab was bifurcated into two States of Punjab and Haryana of 1.11.1966 the petitioners were allotted the cadre of 565 Punjab and respondent No. 6 came to the cadre of Haryana. On Constitution of the Delhi Judicial Service, respondent No. 6 was recommended by the Haryana St ate and was initially recruited to the Delhi Service which he joined on 1.9.1971. Eventually respondent No. 6 was placed in the selection grade w.e.f. 25.3.1972 and he was promoted as Additional District & Sessions Judge w.e.f. 1.6.1973. It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent No. 6 below petitioner No. 1 and above petitioners 2 to 4 was valid and justified. Coming to the Delhi Higher Judicial Service Rules, 1970 we find that under rule 6 the initial recruitment to the higher service was made. None of the petitioners or the respondents was initially recruited. The regular recruitment to the higher service after the initial recruit ment has been provided in rule 7 in these terms "7. Regular recruitment Recruitment after the initial recruitment shall be made : (a) by promotion from the Delhi Judicial Service; (b) by direct recruitment from the Bar. Provided that not more than 1/3rd of the substantive posts in the service shall be held by direct recruits. " Rule 8 prescribes the mode of determination of inter se seniority of the promotees and the seniority of the direct recruits vis a vis promotees. It runs as follows : "8. (1) The inter se seniority of members of the Delhi Judicial Servicepromoted to the service shall be the same as in the Delhi Judicial Service. (2) The seniority of direct recruits vis a vis Promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. " We may notice here two rules viz. Rules 16 and 17 relating to temporary appointments forming part V of the Delhi Higher Judicial Service Rules. They read as follows : "16 (1) The Administrator may create temporary posts in the service. (2)Such posts shall be filled, in consultation with the High Court, from amongst members of the Delhi Judicial Service." "17. Notwithstanding anything contained in these rule the Administrator may, in consultation with the High Court, fill substantive vacancies in the service by making temporary appointments thereto from amongst members of the Delhi Judicial Service. " It would thus be seen that there are two types of appointments to Delhi Higher Judicial Service one by regular recruitment, the source of which is by promotion from the Delhi Judicial Service and by direct 566 recruitment from the Bar. Rule 8 prescribes the mode of determination of seniority of such regular recruits. The inter se seniority of the members of the Delhi Judicial Service promoted to the higher service has got to be the same as in the lower rank. As a matter of construction it necessarily follows that it would be the same provided the promotion from the lower to the higher service is at the same time. Learned Solicitor General appearing for respondent No. 2 in his usual fairness conceded to this interpretation and added that it cannot but be so. If a member of the Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later, it is obvious that he cannot retain his seniority in the lower rank. All candidates on appointment to the higher service have got to be on probation for a period of two years under rule 12(2) and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with rule 13. Strictly speaking the question of determination of inter se seniority under rule 8 will crop up at the time of the confirmation of the appointee. In Chandramouleshwar Prasad 'vs Patna High Court I & Ors. (1) referring to the relevant rules of the Bihar Superior Judicial Service Rules, Mitter, J delivering the judgment on behalf of this Court said at page 671 : "It may be noted at this stage that the gradation of the officers by the High Court or maintaining any list showing such gradation is not sanctioned by any service rules. The Bihar Superior Judicial Service Rules to which our attention %,as drawn do not contain any provision which would entitle the High Court to make such a gradation or act thereon. Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional District and Sessions Judges shall be made by the Government in consultation with the High Court and under R. 8 a person appointed either on substantive or officiating basis to the post of Additional District and Sessions Judge shall draw pay on the lower time basis. Rule 16(b) provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and R. 16(d) lays down that more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service (Judicial Branch). The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments. So far as the petitioner and the three respondents are concerned that time is yet to come. " On a parity of reasoning it follows that question of determination of seniority comes in at the time of confirmation of the appointees. Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their inter se seniority as in the lower service. But if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later, even though they might have been appointed on probation under rule 7 at the same time. We may, however, add that for practical purposes and for the facility of administration the High Court for the (1) ; 567 time being may consider the promoted probationers as retaining their inter se seniority of the lower service if they are appointed at the same time until they are confirmed. In our judgment members of the Delhi Judicial Service coming to the higher service on temporary appointments either under rule 16 or rule 17 of the Delhi Higher Judicial Service Rules cannot claim the benefit of the inter se seniority under rule 8. There are no rules prescribing the mode of determination of inter se seniority of such temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively. The question of determination of interse seniority of the promotees under rule 8(1) as already stated would crop up only after the promotees have been substantively appointed. We may add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments. The vires of rule 8(1) of the Delhi Higher Judicial Service Rules was challenged by Mr. Tarkunde, learned counsel for the petitioners on the ground that rule 8(1) equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment. Counsel submitted that those who came earlier to the higher service whether under rule 7 or under rule 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later. The attack on the constitutionality of rule 8(1) is obliterated if by construction it is held, as it has been done above, that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise. In absence of such an interpretation it would be a truism to say that rule 8(1) would be discriminatory and violative of article 14 of the Constitution. But with the aid of well established cannons of interpretation we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable, sensible and just manner as we have done in this case. The second part of the argument of Mr. Tarkunde to rope in the temporary appointees for the purpose of determination of inter se seniority of the promotees under rule 8(1) is obviously wrong and cannot be accepted as sound. It may also be added that sub rule (2) of rule 8 will militate against the acceptance of the submission aforesaid. Judging the facts of the instant case in the light of the interpretation which we have put to the relevant rules of the Delhi Higher Judicial Service it will be noticed that the grievance of the petitioners in relation to the seniority of respondents 3 to 6 is either unjustified or premature. Even though respondent No. 3 has already retired and determination of such a question vis a vis him would be futile, while referring to the relevant facts of the case we may point out that the grievance of the petitioners as against respondents 3 and 4 is wholly unjustified. 568 Annexure 'J ' is a copy of the notification dated 20th January, 1972 whereby the Administrator of Delhi was pleased to appoint in consultation with the High Court Shri Joginder Nath, petitioner No. 1 and one Om Prakash Singla, members of the Delhi Judicial Service, to the Delhi Higher Judicial Service, temporarily till further orders. The appointment was under rule 17 of the Delhi Higher Judicial Service Rules against the 14th and. 15th vacancies. In paragraph 15 of the counter affidavit filed on behalf of respondent No. 2 reason has been given as to why petitioner No. 1 was temporarily appointed and the appointments of respondents 3 to 5 was deferred. It was not because they were found unfit that they were not appointed but to enable them to have more experience of the civil work they were made Subordinate Judges. After sometime respondents 3 and 4 were appointed on probation for 2 years under rule 7 against the 14th and 15th vacancies. By another notification of the same date issued under rule 17, petitioner No. 1 and respondent No. 5 were temporarily appointed in officiating capacity till further orders. Four temporary posts were created by a notification dated 13th March, 1974. Petitioners 2, 3 and 4 were temporarily appointed to three of these posts by notification dt. 22nd March, 72 by the Administrator of Delhi in exercise of his powers under rule 16(2) of the Delhi Higher Judicial Service Rules. Copies of these notifications issued under Rules 7, 17 and 16 of the Delhi Higher Judicial Service Rules are collectively Annexure 'B ' to the counter affidavit of respondent No. 2. Respondents 3 and 4 have been confirmed during the pendency of this Writ petition in the higher service by notification dated 13,6,1974 Annexure R 4/4 w.e.f. 2nd June, 1974. The, petitioners have not challenged the notifications appointing them temporarily to the higher service under rule 16 or rule 17 and appointing respondents 3 and 4 substantively under rule 7. The confirmation of the latter therefore is perfectly in order and it goes without saying that they will be senior to such members of the Delhi Judicial Service who would be substantively appointed and confirmed later. A copy of the notification appointing respondent No. 6 to the higher judicial service from 1.6.1973 does not seem to be in the records of this case. We were however informed at the Bar that he was also temporarily appointed either under rule 16 or rule 17. That being so it was not clear to us whether the grievance of the petitioners in paragraph 19 of the writ petition that respondent No. 6 inspite of his appointment as Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of rule 8 of the Delhi Higher Judicial Service Rules, is correct or justified. The question of the 6th respondent 's ranking senior to any of the petitioners will not arise until they are substantively appointed to the higher judicial service. We may, however, reiterate our observation that from a practical point of view and for the facility of administration, in the temporary appointments, respondent No. 6 who came later than the petitioners cannot rank senior to any of them. In the well known case of Parshotam Lal Dhingra vs Union of India(1) Das C.J. delivering the judgment on behalf of majority of (1) ; 569 this Court pointed out at pages 841 and 842 thus : "The appointment of a Government servant to a permanent post may be substantive or on probati on or on an officiating basis. . An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating 'appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on substantive appointment being to that permanent post in the later case. . . In the instant case it is clear that due to justifiable reasons, the appointment of respondents 3 and 4 substantively to the 14th and the 15th vacancies was deferred and petitioner No. 1 was made to officiate in a temporary capacity against the substantive vacancy. But such an officiation came to an end on the substantive appointment of either of respondents 3 or 4. For the reasons aforesaid we hold that the petitioners have made out no case entitling them to any relief asked for by them in this writ, petition. It accordingly fails and is dismissed without costs.

The Gujarat Vacant Lands in Urban Area (Prohibition of Alienation) Act,, 1972 is enacted to prohibit the alienation of certain vacant lands in urban areas in the State of Gujarat. Section 2 of the Act embodies a declaration that the Act is for giving effect to the policy of the State towards securing the principles specific in clauses (b) and (c) of article 39 of the Constitution. Section 4 prohibits the alienation of vacant land after the appointed day. It however exempts one plot of vacant land owned by a person not exceeding 1000 sq. metres and not forming part of a compact block. The transfers in favour of the State Government, Central Government, local ' authority, Government company, statutory corporations and cooperative house building societies are also exempted. The State Government has been empowered by general or special order to exempt any area or any alienation from all or any of the provisions of the Act. This is subject to the rules made by the State Government. Every order made by the State Government and the Collector exempting any area or alienation from, any of the provisions of the Act is required to be laid before the State Legislature. The Learned Counsel for the petitioner conceded that in view of the proclamation of emergency fundamental right guaranteed under Article 19 is under suspension. It was contended that the Act offended Article 14 and that the Act was not directly relatable to the object of Article 39 (b) and (c) and, therefore, Article 31C could, not protect it. HELD : (i) It is not necessary to take recourse to Article 31C for upholding constitutional validity of the Act as, it does not infringe equal protection of law guaranteed under Article 14 of the Constitution. Urban area means any area which is comprised in the city or a municipal Borough. Surrounding area not exceeding 16 kms. has to be fixed ' by a notification of the State Government. By notifications limit of 16 kms. has been fixed in case of big cities like Ahmedabad, Baroda, etc. but lesser limits of distance have been notified in case of small municipal boroughs. When the limit of the distance outside the city or town area differed from place to, place it was not necessary to fix the limit of permissible area of transfer with reference to the value of the land. It was neither feasible nor expedient to do so. From the permissible limit of transfer the area forming part of the compact block had to be excluded as it would have led to monopolisation and monoeuvrings by persons belonging to the same family unit.[668F; 672 B] (ii) There is reasonable classification and there is a clear nexus between the object of the Act and the classification. The Act has neither put unequals as equals nor has it discriminated between equals. The object of the Act being to prevent alienation of vacant lands it rightly excludes the building lands from its operation. Since the object of the Act is to ultimately distribute ownership and control of the material resources to subserve the common good transfer in favour of Government, Local Authorities, Government Companies and Statutory Corporations has been excluded. Formation of Cooperative House Building Societies is obviously a step for fulfilment of the object of the Act. The power of the State Government to exempt any area or any alienation from all or any of the provisions of the Act is a power which is to be exercised for the reasons to be recorded and in furtherance of the object of the Act. The guideline is to be found in the object of the Act. The order of exemption to be made by the Collector is only where the land is to be used for any educational, scientific, industrial or commercial purposes. The exercise of the power by the Collector is further controlled by providing an appeal to the State Government. The orders are to be placed before the State Legislature which will act as a supervisory of the orders of exemption made by the State Government or this Collector. [672D H] 668

ivil Appeal No. 3474 of 1988. From the Judgment and Order dated 10.5.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/62/85 C. Harish N. Salve, Mrs. M. Sud, Ms. Aruna Jain and Praveen Kumar for the Appellant. B. Dutta, Additional Solicitor General, T.V.S.N. Chari and P. Parmeshwaran for the Respondent. 894 The Judgment of the Court was delivered by OJHA, J. This appeal under section 35L of the (hereinafter referred to as the Act) has been preferred against the order dated June 28, 1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi. The appellant carries on the business of manufacture and sale of paper. On the plea that in the manufacture of paper the appellant uses paper cores, exemp tion from payment of excise on such paper cores was claimed by it on the basis of a Notification No. 201/79 dated June 4, 1979 as amended by Notification No. 105/82 dated February 28, 1982 (hereinafter referred to as the Notification) The Assistant Collector, Central Excise rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appellate Col lector. Aggrieved by that order the Collector of Central Excise, Meerut, preferred the appeal in which the order which is the subjectmatter of the present appeal, was passed. The Notification on the basis of which exemption was claimed by the appellant inter alia provides: "the Central Government hereby exempts all excisable goods (hereinafter referred as "the said goods"), on which the duty of excise is leviable and in the manufacture of which any goods fall ing under Item No. 68 of the First Schedule to the (1 of 1944) have been used, as raw materials or component parts (hereinafter referred as "the inputs"), from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs." As is apparent even from the order of the Tribunal the details of the use of paper cores in the manufacture of paper as set out by the appellant on the basis whereof the exemption was claimed by it read as hereunder: "Paper cores: Paper cores are used in paper mill on re winding and cutting machines. The full width of paper manufactured on paper machine is cut in different sizes of reel and sheets according to customer 's requirement. To cut the parent roll of paper manufactured on paper machine which is wound on steel shell into small reels suitable for cutter machine, the paper is re wound on 'paper cores ' fitted on a shaft on re winding machine. The reels thus re winded on paper cores can be easily cut into sheets on cutter machine into re quired size or sent to customers as 895 reels as such, there is no other use of paper cores except their use in re winding and cutting machine in paper mills". On the basis of the details aforesaid the case of the appel lant was that the paper cores constituted "component parts" within the meaning of the Notification entitling it to the exemption granted by the said Notification. The case of the respondent on the other hand was that paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute component parts of paper. Before dealing with respective submissions made by learned counsel for the parties it may be pointed out that it is not in dispute that the excise duty was payable at the relevant time separately both on paper and paper core under different tariff items of the First Schedule to the Act and it has also not been disputed by the respondent that if paper core fell under the term "component parts", the appellant would be entitled to the exemption as claimed by it and contem plated by the Notification. The short question which, there fore, arises for consideration in the instant appeal is whether paper core is used in the manufacture of paper as component part. Even though the term "component parts" has not been defined either by the Act or by the Notification the term "manufacture" has been defined in section 2(f) of the Act. This definition inter alia contemplates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product. Section 3 of the Act which is the charging section contemplates levy and collection of duty of excise on all "excisable goods". The First Schedule to the Act specifies the excisable goods under various tariff items. In the absence of any definition of the term "component parts" it is permissible to refer to the dictionary meaning of the word "component". According to the Webster Comprehensive Dictionary, International Edition the word "component" inter alia means a constitutent part. The term "manufacture", as already indicated above, accord ing to its definition in the Act includes any process inci dental or ancillary to the completion of manufactured product. In this context what has to be considered is wheth er in the manufacture of paper, paper core is used as a constituent part and is necessary to be used in "any process incidental or ancillary to the completion of a manufactured product" namely paper in the instant case. In M/s J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs Sales Tax Officer, Kanpur and Another, [1965] 1 S.C.R. Page 900 while dealing with the expression "in the manufacture of goods" used in section 8(3)(b) of the Central Sales Tax Act, 1965 and Rule 13 framed 896 under the Act it was held that the said expression "would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process is so integrally connected with the ultimate production of goods that but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judgment, fall Within the expression. " It was further held: "In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoreti cally possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment." (Emphasis supplied) In Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, [1989] 1 S.C.C. Page 602 while dealing with excise duty it was held: "Therefore, the first principle that emerges is that excise was a duty on goods as speci fied in the schedule. In order to be goods an article must be something which can ordinarily come to the market and is brought for sale and must be known to the market as such. There fore, the marketability in the sense that the goods are known in the market or are capable of being sold and purchased in the market is essential. " It is in this background that the use of paper core in the process of manufacture of paper has to be considered. If it is found that the use of paper core is necessary in "any process incidental or ancillary to the completion of" paper as marketable goods and it would consequently be commercial ly inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Notification. This takes us to the process of manufacture of paper. The process of paper manufacture is to be found at pages 230 to 235 of Part 17 of Encyclopaedia Britannica. The process of paper manufacture by paper making machine is contained at pages 232 onwards. After referring to the various stages of manufacture of paper it is stated: "After the drying comes the calendering and there are usually two or more sets or stacks of calendering rolls, according to the grade of surface required. These calenders consist of vertical stacks of chilled iron rolls, generally five 897 in a stack, which revolve on one another and some of which are bored for heating by steam; pressure is applied to them at will, by ad justing levers at the top of each stack. Finally the paper passes to cooling rolls, where the paper can be cooled by water spray if necessary and is then wound on to a reel. " Thereafter at page 234 it is stated: "Paper, though made in the roll on the ma chine, is usually sold in the form of sheets. A number of reels of paper, on their spindles, mounted in a stack, are fed, as a pile of webs, between two rollers: a series of revolv ing knives slits them longitudinally as they emerge from between the rollers, in effect into strips which are cut again transversely by the scissors action of a movable upper knife, working periodically against a lower fixed knife. The cut sheets fall on 'to an endless felt for stacking. " At the bottom of the same page it is stated: "Paper is sold in sheets of different sizes and is made up into reams containing from 480 to 5 16 sheets in Great Britain, 500 in the United States; these sizes correspond to different trade names, as foolscap, demy, royal, etc. " It is thus apparent that paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes by taking recourse to the process referred to above. Chapter XIII of the Story of Papermaking by Edwin Suter meister 1954 Edition contains the process known as calender ing and finishing. At pages 183 and 184 it is stated: "The paper from the machine, no matter what its finish, goes next to the reels which form large rolls the full width of the machine. The reels are so arranged that when one cylinder is full another can take its place while the paper machine is running continuously. The full cylinder is then rewound at higher speed so that it may again be ready when needed by the paper machine. On rewinding the paper is trimmed on the edges and if desired is slit into any number 898 of narrower rolls . The cores on which the paper is wound will depend to some extent on what happens to the paper next. If it is delivered to the customer in rolls as it comes from the rewinder the cores are apt to be of heavy board stock, wound and pasted on a mandrel: if the rolls of paper pass to another part of the same plant for further treatment the cores are likely to be of iron pipe, which can be used over and over. " With regard to the use of roll paper it is stated at page 185: "Roll paper is very widely used in many lines of work. Newspapers are printed, cut and folded direct from rolls, each of which may weigh 1400 pounds or more; much craft paper is sold to be used directly from the roll in wrapping goods, while tremendous quantities are used to feed the machines making paper bags. Paper for the conventional coating operations is delivered to the coating plant in roll form; and considerable quantities of white paper are printed continuously from rolls. These are only a few of the more obvi ous uses of roll paper. All roll paper must reach the consumer in perfect condition if it is to be of the great est use. It must be carefully wrapped and the ends of the rolls protected by stout heads to keep edges of the paper from being injured. " As regards paper which is to be used in sheet form it is stated at pages 190 and 191: "Paper which is to be used in sheet form may be so prepared by passing directly from the reel stand of the paper machine to a cutter, layboy and sheet counter in line with the machine and attended by the paper machine crew. This system is used for coarse papers which do not need sorting, and it is common on machines which run off pulp for chemical or papermaking use. As a more common alternative the rolls go to independent cutters from the rewinders or the supercalenders, according to the finish the final paper is to have. The rolls are placed on reel stands which are constructed to hold up to twelve or more. Any one of these may be cut singly, or all may be cut together as desired. From the reels the paper passes through a cutter 899 which has a knife on a revolving drum acting in a shearing manner against a fixed bed knife. Each time the drum revolves the knife cuts a sheet from the web of paper being fed continuously at constant speed, and the length of the sheet cut is regulated by altering the speed at which the revolving knife tums. Cutters are also designed to split the paper into the right width of roll, and to trim the edges, if this has not already been done at the rewinder. The paper leaves the cutter on trav eling tapes and goes to a layboy which auto matically jogs the sheets into uniform piles. These layboys take the place of operatives who formerly did the same work, and enable higher cutter speeds to be employed. " In the Dictionary of Paper (Fourth Edi tion, published under the Auspices and Direc tion of the American Paper Institute, Inc.) the purpose of rewinding is stated thus at page 346: "Rewinding: The operation of winding the paper accumulated on the reel of a paper machine onto a core to a tightly wound roll suitable for shipping or for use in the finishing or converting department. During rewinding, defective paper in the reel is usually removed and breaks in the sheet are spliced and marked. " In Pulp & Paper Science & Technology (Vol. 2, edited by C. Earl Libby) it is stated at page 271. "The prime purpose of the paper machine re winder is to split the sheet into the required widths, to provide rolls of paper having the correct diameter, and to produce firm, tightly wound rolls of paper that can be unwound into highspeed printing presses with few tension problems. " What becomes obvious from the processes referred to above, therefore, is that even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come cut of the machine in rolls so as to be sold as a marketable commodity known as roll paper. The use of 900 paper core, however, is not 'necessary for the manufacture of paper sheets. As stated at page 184 of the Story of Papermaking (supra), the core on which the paper is wound will depend to some extent on what happens to the paper next. If it is delivered to the customer in rolls as it comes from the rewinder the core is apt to be of heavy board stock wound and pasted at mandrel. If, however, the rolls of paper are not be delivered to the customer in the form of rolls as such and the rolls of paper are to pass to another part of the same plant for further treatment the core is likely to be of iron pipe which can be used over and over. Consequently core of iron pipe is more likely to be used in the normal course for further treatment in the plant which will include the process of cutting the paper into sheets. Inasmuch as core of iron pipe can be used over and over, it cannot be said that the use of paper core is necessary for the rewinding of paper meant to be cut into sheets. It may be that for the sake of convenience paper core may be used by some manufacturer even for rewinding of such paper as is meant to be cut in sheets but in that case it would at best provide more convenience to such manufacturer but for that reason paper core will not become a constitutent part of paper manufactured in sheets. In view of the foregoing discussion, we are of the opinion that use of paper core is necessary for rewinding of paper if it is delivered to the customer in rolls and would come within the purview of the expression "any process incidental or ancillary to the completion of a manufactured product" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fall within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned. Paper core, however, cannot be said to be used in the manu facture of paper in sheets as component part. We are con scious that the relevant tariff item uses the word "paper" but since paper in rolls and paper in sheets are nothing but different forms of paper, both of them would be excisable goods as paper under the relevant tariff item. In the result, this appeal succeeds and is allowed to this extent that it is held that in the manufacture of paper rolls delivered to the customers for use as roll paper, paper core is used as component part. The orders of the authorities below are modified to this extent. In the cir cumstances of the case, however, the parties shall bear their own costs. R.S.S. Appeal allowed.

The respondent, in the first of these appeals, was manufacturing different varieties of printing paper includ ing wrapping paper failing under Item No. 17 of the erst while Central Excise Tariff. The appellant issued a show cause notice to the Respondent for the alleged violation of Rules 9(1), 173 F and 173 G of the Central Excise Rules, 1944 in respect of wrapping paper removed outside the Facto ry without payment of Central Excise duty, and for imposi tion of penalty. Showing cause, the Respondent contended that the wrapping paper was captively consumed and utilised as component :art of other varieties of paper and as such no duty was payable. Reliance was placed on section 2(f) of the and Notification No. 18A/83 CE dated 9th July, 1983. The Superintendent (Techni cal) having held otherwise, the respondent preferred an appeal to the Collector (Appeals). The Collector rejected the claim. On appeal, the Customs, Excise and Gold (Control) Appellate Tribunal referred to its own decision, which is the subject matter of the other appeals herein and set aside the order of the Collector. The facts leading to the other appeals are similar, and the issue involved is the same. The Revenue has filed the appeals under section 35 L of the Central Excises & Salt Act. On behalf of the Revenue, it was contended that wrapping paper cannot be deemed to be component part because it did not become an integral part of the packed paper. The assessee, however contended that wrapping paper was raw material or component part of the wrapped paper, and relied on section 2(f) of the Act which includes any process incidental or ancillary to the 1018 completion of a manufactured product. It was also urged that Revenue had itself considered the stage of wrapped or packed paper as the stage at which goods should be entered in the statutory production register. Dismissing the appeals, HELD: 1. 'Manufacture ' in the sense it is used in the excise law, was not complete until and unless wrapping was done. It is the law now that excise is a duty on manufac ture. Manufacture is the process or activity which brings into existence new, identifiable and distinct goods. Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or mar ketable in the market as such. The finished goods were cut to size and packed paper which, according to the Indian standard and trade practice, consisted of the wrapping paper and the wrapped paper. Duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning of the expression is that to become 'goods ' it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such. The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper. Therefore, anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product. [1021G H; 1022A D] Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, ; ; South Bihar Sugar Mills Ltd., etc. vs Union of India & Ors. , ; ; Union of India vs Delhi Cloth & General Mills Ltd., [1963] Suppl. I SCR 586; Union Carbide India Ltd. vs Union of India and Ors. , ; Collector of Central Excise, Baroda vs M/s Ambalal Sarabhai Enterprises, ; relied on. Processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market, is not complete until these are wrapped in wrapping paper. Manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process, is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of 1019 goods would be commercially inexpedient, article required in that process, would fail within the expression 'in the manufacture of goods '. [1022E G] Empire Industries Ltd. & Ors. vs Union of India & Ors. , ; ; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs Sales Tax Officer, [1965] 16 STC 563 (SC); relied on. [1023F] 3. To be able to be marketed or to be marketable, in the light of facts in the appeals, it was an essential require ment to be goods, to be wrapped in paper. Anything required to make the goods marketable, must form part of the manufac ture and any raw material or any material used for the same would be component part for the end product. Collector of Central Excise vs Jay Engineering Works Ltd., ; referred to.